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As a preliminary measure he was confined to a psychiatric hospital. The court appointed defence counsel to the applicant, who had a previous history of psychiatric treatment going back as far as 1999.","7.On Tuesday 18 December 2012, the M\u00fcnster Regional Court delivered its judgment and ordered the applicant\u2019s confinement to a psychiatric hospital. It held that the applicant could not be held criminally responsible and was mentally ill. According to the court\u2019s psychiatric expert, he was psychotic and aggressive, did not show any awareness of his illness and it was likely that he would commit further, even more serious crimes.","8.When the judgment was delivered in the presence of the applicant, his court\u2011appointed defence counsel and the applicant\u2019s custodian (gesetzlicher Betreuer), the applicant became agitated. He told the court\u2011appointed lawyer that he wished for a change in representation and declared that he wanted to appeal against the decision himself. He was informed that this was not possible on the spot. The presiding judge instructed him about the time and form for lodging an appeal on points of law. He was then returned to the forensic hospital where, when in contact with others, he showed no more signs of agitation.","9.On Friday 21 December 2012 the applicant received a letter from the court\u2011appointed lawyer, dated 19 December 2012, who advised him as follows:","\u201c... You already announced immediately after the hearing that you wanted to appeal against the court\u2019s decision and also to mandate new defence counsel. We respect your wish for new counsel and hereby terminate the mandate.","Regarding the remedy you wished for, we give the following advice: You may appeal on points of law against the decision of the M\u00fcnster Regional Court (Bocholt Chamber) within one week after the judgment was delivered, thus until","27 December 2012","at the latest.","Appeal on points of law may be lodged either with the record of the registry or in writing. Since you are not at liberty, the special provision of Article 299 of the CCP applies to you. This means that you can make statements relating to appellate remedies to the record of the registry of the District Court in whose district the institution is located.","Thus, the Rheine District Court would be competent.","According to Article 299 \u00a7 2 of the CCP, in order to meet the time-limit it suffices if the record is taken within the time-limit.","In your own interest you should take care that the appeal is lodged in time.","For the sake of completeness we refer to Article 345 of the CCP which prescribes that the specific grounds of the appeal shall be submitted to the court whose judgment is being contested no later than one month after expiry of the time\u2011limit for seeking the appellate remedy. If the judgment has not been served by the expiry of that time\u2011limit, the time\u2011limit shall start to run upon the service thereof.","In your case this may only be done in the form of a notice signed by defence counsel or by an attorney, or to be recorded by the court registry.\u201d","10.Still, on 21 December 2012 the applicant typed and signed an appeal letter to the Rheine District Court and asked the clinic\u2019s staff to post it. This was done on the following day (Saturday 22 December).","11.On Friday 28 December 2012 the applicant\u2019s appeal letter reached the Rheine District Court, and was forwarded to the M\u00fcnster Regional Court where it was received on 3 January 2013.","12.On 8 January 2013 the Regional Court informed the applicant that his appeal was belated. It underlined that the applicant had been instructed after the judgment\u2019s delivery that an appeal could only be recorded by the registry of the District Court but could not be lodged in writing.","13.On 14 January 2013 the court\u2011appointed lawyer, who had resumed his activity for the applicant, requested a reinstatement of the proceedings in accordance with Article44 of the Code of Criminal Procedure (Wiedereinsetzung in den vorherigen Stand - see paragraph19 below) and lodged an appeal on points of law. He explained that the applicant had misunderstood his counsel\u2019s instruction on how to lodge an appeal. The applicant had believed that he was able to choose whether he wanted to lodge the appeal in writing or have it recorded by the registry either at the Rheine District Court or the M\u00fcnster Regional Court. He could also have expected the appeal, posted on 22December, to reach the Rheine District Court by 27 December 2012.","14.On 11 March 2013 the Federal Prosecutor General observed, inter alia, that:","\u201cHe [defence counsel] referred to Article 299 of the Code of Criminal Procedure by using wording which was not per se wrong but potentially misleading because it could be understood that the appeal on points of law might be lodged either (by the applicant himself) with the record of the Rheine District Court\u2019s registry or in writing with the same court.\u201d","However, according to the Federal Prosecutor General, the oral instruction on the day of the hearing was sufficient.","15.On 9 April 2013 the court-appointed lawyer submitted that:","\u201c... already at the time of trial the applicant was confined to a psychiatric clinic because of his mental illness. It may be that the oral instructions on the right to appeal given after the delivery of the judgment were correct and complete. However, when judgment was passed which ordered his confinement to a psychiatric hospital, the applicant was not in his right mind. Communication between the applicant and his defence counsel was impossible. The applicant was obviously in an exceptional mental state. In such a situation, taking into account the applicant\u2019s psychiatric illness, it must be assumed that he had not understood the oral instructions on the right to appeal which were given immediately after the delivery of the judgment.\u201d","16.On 24 April 2013 the Federal Court of Justice rejected the applicant\u2019s request for reinstatement and consequently dismissed his appeal on points of law as inadmissible because it had been lodged out of time. It held that it was not necessary to examine whether, with regard to the Christmas holidays, the applicant should have expected his letter to be delivered only on 28 December 2012. Rather, it found decisive that the applicant had been expressly instructed on the day of the judgment\u2019s delivery that an appeal could only be lodged with the Rheine District Court to the record of the registry, but not in writing. An accused who misunderstood the oral instruction and therefore lodged an appeal out of time was himself responsible for this. The Federal Court of Justice distinguished the applicant\u2019s case from case\u2011law which made exceptions for a foreigner who was not defended by counsel. Moreover, the applicant\u2019s defence counsel had given him instructions on the form and time\u2011limit for an appeal. According to the Federal Court of Justice, the content of this letter was not misleading but reflected correctly the applicable law. There was nothing to show that the applicant might not have understood the oral instructions by the presiding judge for mental health reasons. He misunderstood the subsequent written instructions of his defence counsel in the same way.","17.The applicant filed a constitutional complaint to the Federal Constitutional Court. He stated, inter alia, that another lawyer had advised him that his court\u2011appointed defence counsel had been under an obligation to file the appeal on points of law.","18.On 29 June 2013 the Federal Constitutional Court declined to consider the applicant\u2019s constitutional complaint for adjudication, without providing reasons (no.2BvR 1243\/13)."],"1":["4.The applicant was born in 1956 and lives in Hatay.","5.On 20 February 1998 the applicant\u2019s ten-year-old son, ErhanCevrio\u011flu, was found dead, together with his friend G.B., who was around the same age, after falling into a water-filled hole on a construction site where they had apparently been playing. The cause of death was determined as drowning.","6.The hole on the construction site was covered by the Municipality of Antakya (\u201cthe Municipality\u201d) in the aftermath of this tragic incident.","1.Criminal proceedings against the owner of the construction site and municipality officials","7.Shortly after the incident, criminal proceedings were instigated against the owner of the construction site, H.C. (also referred to as \u201cthe employer\u201d) and three officials from the Antakya Municipality for causing death by negligence and failing to comply with the regulations and orders, pursuant to Article 455 of the Criminal Code in force at the material time (Lawno. 765).","8.During the course of the criminal proceedings the Hatay Criminal Court of First Instance obtained three different expert reports with a view to determining liability for the death of the applicant\u2019s son.","(a)The first expert report","9.The first report, dated 16 April 1998, was drawn up by three civil engineers. The report noted at the outset that the hole in question, which measured 5 x 15 metres with a 2 metre depth, had been dug in the side yard of the construction for use as a shelter and no safety measures had been taken to enclose it. The hole was located 36 metres from the main avenue and 18 metres from the closest apartment building. The witnesses interviewed at the scene of the incident, including two construction workers, confirmed that no precautions had been taken to cover or otherwise enclose the hole. The two workers indicated that they had initially placed wooden planks on the south side of the hole but had later removed them after discovering that children were throwing them into the hole. They further stated that the construction workers were aware that the hole in question regularly filled up with rainwater and one of them said that they occasionally used the water that accumulated in the hole for construction work. The workers disagreed, however, as to when the hole had been dug: while one of them claimed that it had been there since June or July 1997, the other one said that it had been dug only two months prior to the incident.","10.On the basis of their observations and the witness statements, the committee of experts concluded that the deceased children had been partly at fault for the incident (25%), as the construction site where they had been playing was clearly not a play area. The experts noted that the Municipality also bore 25% responsibility for the two children\u2019s deaths, as (i) they had failed to duly inspect whether the construction, for which it had issued a permit, had complied with the rules on work safety, and to ensure that the construction site had been properly closed off with wooden panels as a safety measure, and (ii) it was not clear on what legal ground it had allowed the digging and the use of the hole in question as a shelter, as such shelters had to be built beneath buildings and not in open spaces. According to the experts, the remaining responsibility (50%) lay with the owner, H.C., who had failed to put in place the necessary safety measures on the construction site, such as building a wooden fence around the hole, erecting warning signs or recruiting a security guard to control access to the construction site.","(b)The second expert report","11.On 25 May 1998 a second report was prepared by three occupational safety experts. Reiterating the factual findings in the previous report of 16April 1998, the experts identified four main causes of the accident in question: (i) absence of wooden panels around the construction site, which was located in a residential area in close proximity to other houses and public roads; (ii) absence of any railing around the hole; (iii) absence of signs prohibiting entry into the construction site or warning against the water-filled hole on the site; and (iv) lack of diligence of the deceased children. The experts indicated that responsibility for all of the causes identified, save for the last one, lay with the employer, in accordance with the relevant provisions of the Labour Code (Law no. 1475) and the Regulation on Workers\u2019 Health and Occupational Safety in Construction Work (Yap\u0131 \u0130\u015flerinde \u0130\u015f\u00e7i Sa\u011fl\u0131\u011f\u0131 ve \u0130\u015f G\u00fcvenli\u011fi T\u00fcz\u00fc\u011f\u00fc) in force at the material time. They noted that, according to the information provided to the investigation authorities by the applicant, the hole in question had been open for the past eight to ten months, and a number of residents from the neighbourhood had warned H.C. to take the necessary safety measures against the hazards on the construction site, particularly vis-\u00e0-vis children. However, H.C. had disregarded all their warnings, saying that parents were responsible for attending to the safety of their children. They further noted that at the time of the incident the construction work had been suspended and the site had been unsupervised.","12.Relying on the information and evidence they had gathered, the experts concluded that H.C. had principal liability for the incident (75%) on account of his failure to take the necessary safety precautions in and around the construction site in compliance with the relevant laws and regulations. They stressed that the failure to install wooden panels around the construction site was one of the principal reasons for the accident. They further found that the remaining responsibility lay with the deceased children, as they should have been aware of the perils of entering a construction site and approaching a water\u2011filled hole, even at their young age. The experts considered, lastly, that while the Municipality had a general duty to inspect construction sites and impose penalties for breaches of the laws, they could not be held accountable for failing to conduct inspections, impose safety precautions or issue penalties unless it could be proven with conclusive evidence that the authorities had overlooked the deficiencies on the construction site despite having been aware of them, or had otherwise neglected their duties, which evidence was lacking in the instant case.","(c)The third expert report","13.On 4 April 1999 a third expert report was issued by a committee of experts from the Istanbul Technical University. The report indicated that neither the construction site nor the hole in which the deceased children had drowned had been surrounded by panels or a wooden fence to prevent unauthorised access. Similarly, there had been no warning signs around the construction site or the hole. According to the expert report, H.C. had made the following statements in the aftermath of the incident before the investigative authorities and the trial court:","\u201c... [After digging the hole on the construction site], I enclosed the hole with wooden planks. Children kept removing the planks. That is why the hole was not closed off. [At the time of the incident] the hole was filled with water following rainfall. On a previous occasion, we had pumped the rainwater out. I was in Ankara at the time [of the incident]. I have no fault here... . If I had not been out of town, I would have checked the hole and covered it.","...","In view of the size and depth of the hole, it was not possible to cover it. We had therefore put planks around it... There were no warning signs around the hole. I was in Ankara when the incident took place, and the construction had stopped while I was gone. The hole filled up with water whenever it rained... It must have filled up again when I was away, there was no opportunity to remove the water.\u201d","14.Referring to the relevant provisions of the Labour Code, the Regulation on Workers\u2019 Health and Occupational Safety in Construction Work and the Municipalities Act (Law no. 1580) in force at the material time (see \u201cRelevant domestic law\u201d, below, for further details), the experts from the Istanbul Technical University found that H.C. and the Municipality were 75% and 25% at fault respectively and that no liability could be attributed to the deceased children. They indicated that since the construction work had started, none of the safety measures required under the relevant legislation had been put in place. Moreover, no permission had been obtained for the digging of the hole or the \u201cshelter\u201d in question, which had claimed the two children\u2019s lives; nor had any safety measures been taken around it to prevent accidents. The experts stressed that the dangers posed by the hole had been aggravated when it rained, as the muddy surface made it easier for people to slip and fall in. The responsibility for failure to take any safety measures around the hole or to prevent access to the construction site, despite the knowledge that the site attracted children, fell firstly on the contractor and then on the Municipality, which was required to inspect the construction site periodically in order to identify deficiencies and issue the necessary warnings; the Municipality authorities had clearly neglected that duty.","(d)Judgment of the Hatay Criminal Court of First Instance","15.On 14 April 2000, relying on the third expert report, the Hatay Criminal Court of First Instance held that \u0130.H.S., who was the director of reconstruction at the Municipality (belediye imar m\u00fcd\u00fcr\u00fc), and the construction owner, H.C., were 25% and 75% responsible for the incident respectively. Accordingly, the court found the accused guilty as charged.","16.However, on 9 July 2001 the Court of Cassation quashed that judgment, finding that the case should have been examined under Lawno.4616, which provided, inter alia, for the suspension of criminal proceedings in respect of certain offences committed before 23 April 1999.","17.Accordingly, on 6 August 2001 the trial court decided, pursuant to section1(4) of Law no. 4616, that the criminal proceedings should be suspended and eventually discontinued if no offence of the same or of a more serious kind was committed by the defendants within the next fiveyears.","2.Compensation proceedings before the civil courts","18.On 16 September 2002 the family members of both deceased children, including the applicant, initiated compensation proceedings before the Hatay Civil Court of First Instance against H.C., his construction company and the Antakya Municipality, arguing that they bore joint responsibility for their children\u2019s deaths. The applicant and his family claimed 5,000,000,000 Turkish liras (TRL)[1] in respect of pecuniary damage and TRL 3,000,000,000[2] in respect of non-pecuniary damage, together with interest accrued from the date of the incident.","19.On 5 November 2004 an expert report was prepared by a mechanical engineer, who was also an expert on occupational safety, and an architect at the request of the Hatay Civil Court of First Instance. After setting out the circumstances in which the incident had occurred, much like in the previous reports submitted to the criminal court, and referring to the relevant provisions of the Labour Code and the Regulation on Workers\u2019 Health and Occupational Safety in Construction Work, the experts concluded that H.C. bore 85% of the responsibility for the incident on account of his failure to take the necessary safety measures on the construction site, such as erecting wooden panels or other fencing around the site, taking special precautions in those parts of the site that presented a danger of falling, placing warning signs as necessary, informing the construction workers of possible hazards at the construction site and employing a guard to control access to the site. They indicated in particular that the unenclosed hole, which had been opened in June or July 1997, had presented a grave danger for the residents and the children in the neighbourhood, which risk increased when the hole filled with water and became slippery on the edges following rainfall. They also stressed that, according to the relevant Court of Cassation jurisprudence, the responsibility of the employer was not limited to putting the necessary safety measures in place to avert the existing and potential dangers on the construction site, but he or she was also required to supervise compliance with those measures.","20.Turning to the liability of the deceased children, the report held that while it was natural for the children to have been playing out on the street, they should not have entered the construction site and approached the water-filled hole, the dangers of which were obvious bearing in mind in particular that the ground had been slippery at the relevant time. It therefore found that the children bore the remainder of the liability for their own deaths on account of their failure to display the necessary care and diligence.","21.As for the alleged responsibility of the Municipality, the experts stated that the latter had had no involvement in the construction, apart from issuing the necessary permits. Moreover, the accident had occurred within the boundaries of the construction site, and not in a public space or other area under the direct responsibility of the Municipality. In such circumstances, the Municipality could not be held responsible for the deficiencies on the construction site; otherwise, the Municipality would have to be held liable for all accidents occurring in any construction. They accordingly concluded that the owner of the construction site bore sole responsibility for the site.","22.On 22 March 2005 the Hatay Civil Court of First Instance upheld the applicant\u2019s case in part. The court stated that, after examining the findings of the Hatay Criminal Court of First Instance and the expert reports submitted to that court, it had requested a further expert report in order to clarify the conflicting aspects of the previous reports. On the basis of that final report, the court established that the responsibility of H.C. and his construction company for the incident was 85%. It thus concluded that H.C. and the construction company were to pay TRL 5,000,000,000 in respect of pecuniary damage to the applicant and his wife and TRL 3,000,000,000 in respect of non-pecuniary damage to the applicant, his wife and their three surviving children as requested, with interest accrued from the date of the incident. The court dismissed the case concerning the Municipality, as no fault could be attributed to it on the facts before it.","23.On 12 April 2006 the applicant, along with the other claimants, appealed against the decision of the first-instance court. They mainly argued that, despite the Municipality\u2019s liability for the incident having been established in the criminal proceedings, the Hatay Civil Court of First Instance had ordered a new expert report against their wishes, and moreover had disregarded their objections concerning the findings in the said report. The Municipality was clearly responsible for the deaths of the two children for having tolerated the presence of a large and uncovered water-filled hole in the very centre of the city for months on end, yet its responsibility had been disregarded by the first-instance court.","24.On 18 June 2007 the Court of Cassation quashed the judgment with regard to the part concerning the Municipality. It noted that the first\u2011instance court should have dismissed the case against the Municipality at the outset for procedural reasons, without examining its substance, as the complaints concerning the Municipality\u2019s responsibility to inspect the construction site fell within the jurisdiction of the administrative courts. The Court of Cassation upheld the rest of the judgment.","25.Accordingly, on 11 December 2007 the Hatay Civil Court of First Instance dismissed the case against the Municipality. The court also noted that its previous judgment concerning H.C. and his construction company had become final and that there was no need to render a new judgment in respect of that part of the case.","26.The applicant did not appeal against that judgment, which eventually became final on 16 February 2009.","3.Compensation proceedings before the administrative courts","27.On an unspecified date in 2009 the applicant, together with other family members, brought compensation proceedings before the Hatay Administrative Court against the Municipality for the death of their son and brother Erhan Cevrio\u011flu due to the alleged negligence on the part of the Municipality in the discharge of its inspection duties.","28.On 31 December 2009 the Hatay Administrative Court requested a copy of the case file pertaining to the compensation proceedings initiated by the applicant and others from the Hatay Civil Court of First Instance. Subsequently, on 29 January 2010 the Administrative Court requested the case file of the criminal proceedings against H.C. and the municipality officials from the Hatay Criminal Court of First Instance. On 23March 2010 the Administrative Court also requested the applicant\u2019s lawyer to submit the relevant criminal court decision along with the expert reports submitted to that court.","29.On 9 December 2010 the Hatay Criminal Court of First Instance informed the Administrative Court that the relevant criminal case file could not be found. However, on 14 February 2011 the applicant\u2019s lawyer submitted the requested documents to the administrative court. In the meantime, the case file pertaining to the compensation proceedings was also made available by the Hatay Civil Court of First Instance.","30.On 11 March 2011, relying solely on the expert report submitted to the Hatay Civil Court of First Instance on 5 November 2004, and without undertaking any analysis of its own as to the responsibilities of the Municipality under the applicable legislation and whether it had fulfilled those responsibilities, the Hatay Administrative Court held that no fault was attributable to the Municipality on the facts of the instant case and thus dismissed the compensation claims of the applicant and his family. The Hatay Administrative Court emphasised in its judgment that the earlier ruling of the Hatay Civil Court of First Instance, which had apportioned liability for the incident between H.C. and his company and the deceased children, had also been upheld by the Court of Cassation.","31.On 15 November 2011 the Adana District Administrative Court upheld the judgment of the first-instance court, and on 26 April 2012 it rejected rectification requests lodged by the applicant and his family.","4.Subsequent developments","32.According to a declaration submitted to the Hatay Civil Court of First Instance on 23 October 2013 by the lawyer who had represented the applicant in the proceedings before that court, the applicant and his family had not received any compensation from H.C. and his company, nor had they commenced enforcement proceedings against the latter.","40.On 1 January 1992 the International Labour Organisation issued a Code of Practice on \u201cSafety and Health in Construction\u201d, the purpose of which was to provide practical guidance on a legal,administrative, technical and educational framework for safety and health inconstruction work. The relevant parts of this Code of Practice read as follows:","\u201c2.General duties","2.1.General duties of competent authorities","2.1.1.The competent authorities should, on the basis of an assessment of thesafety and health hazards involved and in consultation with the most representativeorganisation of employers and workers, adopt and maintain in force national laws orregulations to ensure the safety and health of workers employed in construction projectsand to protect persons at, or in the vicinity of, a construction site from all risks whichmay arise from such site.","2.1.2.The national laws and regulations adopted in pursuance of paragraph 2.1.1above should provide for their practical application through technical standards or codesof practice, or by other appropriate methods consistent with national conditions andpractices.","2.1.3.In giving effect to paragraphs 2.1.1 and 2.1.2 above, each competentauthority should have due regard to the relevant standards adopted by recognized international organisations in the field of standardisation.","2.1.4.The competent authority should provide appropriate inspection services toenforce or administer the application of the provisions of the national laws and regulations and provide these services with the resources necessary for the accomplishment of their task, or satisfy itself that appropriate inspection is carried out.","...","2.2.General duties of employers","...","2.2.4.Employers should take all appropriate precautions to protect personspresent at, or in the vicinity of, a construction site from all risks which may arise fromsuch site.","2.2.5.Employers should arrange for regular safety inspections by competent persons at suitable intervals of all buildings, plant, equipment, tools, machinery, workplaces and systems of work under the control of the employer at construction sitesin accordance with national laws, regulations, standards or codes of practice. As appropriate, the competent person should examine and test by type or individually to ascertain the safety of construction machinery and equipment.","...","3.Safety of workplaces","3.1.General provisions","3.1.1.All appropriate precautions should be taken:","(a)to ensure that all workplaces are safe and without risk of injury to the safety andhealth of workers;","(b)to protect persons present at or in the vicinity of a construction site from all risks which may arise from such site.\u201d"],"2":["5.The applicant was born in 1982 and is detained in HM Prison Dovegate, Uttoxeter.","A.The background facts","6.On 3 August 2001 the applicant was sentenced by the Crown Court to custody for life for causing grievous bodily harm. The minimum period (\u201ctariff\u201d) was set at two years, eight and a half months, less time spent on remand. The tariff expired on 18 April 2004 and he became eligible for parole.","7.The Parole Board subsequently examined his case in order to review whether his detention remained necessary for the protection of the public. On 26 May 2005 it decided not to direct his release but recommended that he be transferred to open conditions. That recommendation was rejected by the Secretary of State.","8.A second recommendation to the same effect was made, following the applicant\u2019s second Parole Board review on 31 January 2007 and rejected by the Secretary of State on 23 May 2007. At the conclusion of its statement of reasons for rejecting the Board\u2019s recommendation, the National Offender Management Service (\u201cNOMS\u201d) wrote:","\u201cThe Secretary of State has therefore decided that you should remain in closed conditions and your next review will conclude in January 2008.\u201d","9.The accompanying letter stated:","\u201cIt has been decided that your case will next be referred to the Parole Board for a provisional hearing to take place in JANUARY 2008.","...","You will be notified by the Parole Board nearer the time about the exact date of that hearing.","At your next review the Parole Board will consider your suitability for release by way of a paper panel. This consideration will take place approximately 12 weeks prior to your provisional hearing [in January 2008]. If you are not content with the paper panel\u2019s decision you may request that the case proceeds to the arranged oral hearing.\u201d","10.The case was referred to the Parole Board on 21 December 2007. On 6May 2008 the applicant and the Parole Board were sent relevant reports as required by the applicable rules. On 16 May 2008 the Parole Board gave case-management directions requiring additional reports. On 8 October 2008 the Parole Board received the further reports requested. The hearing took place on 8 January 2009. On 23 January 2009 the Parole Board directed the applicant\u2019s release. He was released from prison four days later.","B.The domestic proceedings","11.Meanwhile, in autumn 2008, the applicant commenced judicial review proceedings against the Secretary of State and the Parole Board seeking damages for the delay in holding the hearing. He relied on Article5 \u00a74 of the Convention. He was granted permission to bring proceedings on 13 October 2008.","12.On 5 June 2009 the claim was dismissed by the High Court. Leave to appeal was granted by the Court of Appeal on 27 October 2009.","13.On 14 December 2010 the Court of Appeal handed down its judgment. After carefully reviewing the facts and the individual periods of delay encountered, it concluded that there had been a delay of ten months, from March 2008 to January 2009, in the holding of the Parole Board hearing which was unjustified and for which the Secretary of State was responsible. This delay had prevented the applicant from having the lawfulness of his continued detention decided in accordance with Article5 \u00a74. On the question of damages, the court was satisfied that the applicant had shown, on a balance of probabilities, that he would have been released had the review taken place in March 2008. Damages on the basis of a loss of liberty were therefore appropriate.","14.In its judgment of 29 March 2011 on the amount of damages to be awarded, the court considered a number of just satisfaction awards in cases before this Court in which breaches of Article 5 \u00a7 4 had been found. It distinguished between cases where the delay had merely led to feelings of frustration and those where it had been established that, but for the delay in the holding of the hearing, the applicant would have been released earlier. It awarded the sum of 10,000 pounds sterling (\u201cGBP\u201d) by way of compensation for the loss of ten months\u2019 conditional liberty.","15.The applicant sought leave to appeal to the Supreme Court on the ground that the award was inadequate. The Parole Board sought leave to appeal on the ground that the award was excessive. Leave was granted to both parties, and the applicant was in addition given permission to argue that his detention after March 2008 constituted false imprisonment at common law or a violation of Article 5 \u00a7 1 of the Convention. In respect of his latter argument, he relied on this Court\u2019s findings in James, Wells andLee v. the United Kingdom, nos. 25119\/09, 57715\/09 and 57877\/09, 18September 2012.","16.In its judgment of 1 May 2013 the Supreme Court unanimously rejected the applicant\u2019s appeal and allowed the appeal of the Parole Board, reducing the damages award to GBP 6,500.","17.As regards the alleged violation of Article 5 \u00a7 1 of the Convention, Lord Reed, giving the leading opinion, observed that Article 5 \u00a7 4 provided a procedural entitlement designed to ensure that persons were not detained in violation of their rights under Article 5 \u00a7 1. However, he added, a violation of Article 5 \u00a7 4 did not necessarily result in a violation of Article5 \u00a7 1. He considered this Court\u2019s judgment in James, Wells and Lee, cited above, not to be directly relevant to the applicant\u2019s case since that judgment concerned lack of access to rehabilitation courses and the just satisfaction awards made were for the feelings of distress and frustration resulting from continued detention without access to courses, and not for loss of liberty. Lord Reed noted that the delay in the applicant\u2019s case appeared to have been the result of errors by administrative staff, \u201cof a kind which occur from time to time in any system which is vulnerable to human error\u201d. While it was extremely unfortunate that the errors had occurred and had resulted in the prolongation of the applicant\u2019s detention, they were not of such a character, and the delay was not of such a degree, as to warrant the conclusion that there had been a breach of Article 5 \u00a7 1.","18.On the matter of damages for the violation of Article 5 \u00a7 4 of the Convention, Lord Reed reviewed relevant case-law of this Court where a violation of Article 5 \u00a7\u00a7 1, 3 or 4 had been found, focusing in particular on cases concerning a delay in holding a hearing intended to address the question whether a convicted prisoner should be released. He considered that no clear guidance could be derived from the cases since none concerned awards for loss of liberty resulting from a violation of the speedy decision guarantee in Article 5 \u00a7 4. While, he said, an appellate court would not interfere with an award of damages simply because it would have awarded a different figure if it had tried the case at first instance, in the applicant\u2019s appeal the court was being invited to give guidance as to the appropriate level of awards in cases of this character. For that purpose, the court had undertaken a fuller analysis of the case-law of this Court than the Court of Appeal. Lord Reed concluded:","\u201c87.... In the light of that analysis, and applying the general approach which I have described ..., it appears to me that an award in the region of \u00a36,500 would adequately compensate Mr Faulkner for his delayed release, bearing in mind the conditional and precarious nature of the liberty foregone. That amount falls well short of the award of \u00a310,000 made by the Court of Appeal. In the circumstances, it is in my view appropriate for this court to allow the Board\u2019s appeal and to reduce the award accordingly.\u201d"],"3":["5.The applicant was born in 1972 in Villahermosa (Ciudad Real) and is currently serving a prison sentence in Spain.","6.At the time of the facts the applicant was in prison on remand in Foncalent (Alicante).","7.On 20 October 2009 the applicant was found guilty of a disciplinary offence by the disciplinary board of Alicante Prison and punished under the General Prison Rules. The punishment was: four weekends in isolation for having threatened prison officers (Rule 108 (b)); twenty days without group recreational activities for having disobeyed the orders given by prison officers in the fulfilment of their duties (Rule 109 (b)); and twenty days without group recreational activities for having damaged prison property (Rule 109 (e)).","8.The applicant appealed against the sanction before the Comunidad Valenciana post-sentencing judge no. 2 (Juzgado de Vigilancia Penitenciaria n.o2).","9.On 17 November 2009 the post-sentencing judge found partially in the applicant\u2019s favour and revoked the sanction imposed under Rule 109 (b).","10.On 19 November 2009 a State agent in charge of judicial communications attempted unsuccessfully to serve the applicant in person with the post-sentencing judge\u2019s decision. The applicant had been transferred to a prison in Villena (Alicante).","11.On 28 January 2010 the applicant was served in person with the post-sentencing judge\u2019s decision of 17 November 2009. He signed an acknowledgment of receipt.","12.The applicant lodged a reforma appeal with the same post-sentencing judge, who on 18 February 2010 confirmed her previous decision. A copy of the decision on appeal was served on the applicant. He signed an acknowledgment of receipt.","13.The applicant lodged an amparo appeal with the Constitutional Court. He invoked Articles 20 (freedom of expression) and 24 (right to be presumed innocent) of the Constitution.","14.By a communication of 22 March 2010 the Constitutional Court asked the post-sentencing judge to provide it with a copy of the applicant\u2019s case file.","15.On 12 April 2010 the post-sentencing judge transferred the applicant\u2019s case file to the Constitutional Court.","16.By a decision of 30 September 2010 the Constitutional Court declared the applicant\u2019s amparo appeal inadmissible as devoid of any special constitutional significance. That decision was served on the applicant on 7 October 2010.","17.On 22 December 2010 the applicant asked the post-sentencing judge for a copy of his case file for submission to the European Court of Human Rights. He relied on sections 234 and 454 of the Judicature Act (see paragraph 31 below). He did so from a prison in Zuera (Saragossa) to which he had been transferred.","18.On 4 January 2011 the applicant sent his first letter to the Court giving notice of his intention to lodge an application under Article 34 of the Convention.","19.On 14 January 2011 the Court\u2019s Registry acknowledged receipt of the applicant\u2019s letter and invited him to submit a duly completed application form by 11 March 2011.","20.On 26 January 2011 the post-sentencing judge refused the applicant\u2019s request for a copy of his case file on the grounds that his case \u201cwas still pending before the Constitutional Court\u201d.","21.On 2February 2011 the applicant sent his application form to the Court. He raised complaints under Article 6 \u00a7 2 and Article 10 \u00a7 1 of the Convention. He enclosed a copy of the Constitutional Court\u2019s decision declaring his amparo appeal inadmissible. He further referred to the post-sentencing judge\u2019s decisions of 17 November 2009 and 18 February 2010 in field \u201c17. Other decisions\u201d of the application form. However, he did not enclose a copy of those decisions.","22.On 4 February 2011 the applicant sent a communication to the post-sentencing judge. He stated that the Constitutional Court had delivered a decision in his case on 30 September 2010; that he intended to initiate proceedings before the European Court of Human Rights; and that in order to do so he should be provided with a certified copy of his case file without delay and before the deadline of 11 March 2011.","23.On 22 February 2011 the post-sentencing judge\u2019s registrar rejected the applicant\u2019s request, referring to the decision of 12 April 2010 (see paragraph 15 above) and stating that the European Court of Human Rights had the power to request the case file itself. That decision was served on the applicant on 4 March 2011.","24.On 3 March 2011 the Court acknowledged receipt of the applicant\u2019s application form and invited him to send in all relevant domestic decisions by 3 June 2011.","25.On 4 March 2011 the applicant informed the Court that he had unsuccessfully requested a certified copy of his complete case file from the post-sentencing judge. He complained that the domestic authorities were hindering his right to a defence.","26.On 14 March 2011 the applicant resubmitted his request for a copy of the whole case file to the post-sentencing judge. He referred to the Court\u2019s letter of 3 March 2011.","27.On 1 April 2011 the post-sentencing judge rejected the applicant\u2019s request and refused to provide him with a copy of his case file. She informed the applicant that, for the purposes of subsequent applications before other courts, those courts could request the case files from the domestic courts directly. That decision was served on the applicant on 6April 2011.","28.On 7 April 2011 the applicant informed the Court that the post-sentencing judge had refused to provide him with a copy of his case file."],"4":["A.Psychiatric assistance to the applicant in 2004-12","5.During the autumn of 2004 the applicant assembled several explosive devices with the purpose of extorting money from commercial banks in order to donate the proceeds to orphans. On 25 December 2004 he planted and exploded one of the devices in front of the bank M.; there were no casualties. He then planted another explosive device equipped with a timer and accompanied by a threatening note. It was disarmed.","6.Criminal proceedings were initiated against the applicant; however he was diagnosed with schizotypal personality disorder. On the basis of this diagnosis the Moscow City Court (\u041c\u043e\u0441\u043a\u043e\u0432\u0441\u043a\u0438\u0439 \u0433\u043e\u0440\u043e\u0434\u0441\u043a\u043e\u0439 \u0441\u0443\u0434) on 7February 2007 relieved the applicant of criminal liability and ordered his involuntary treatment.","7.In 2010 the applicant was discharged. He moved to the Republic of Altay, where he registered for psychiatric supervision with the local psychiatric hospital. In April 2012 his schizotypal personality disorder condition was noted several times as being in stable remission.","B.Psychiatric assistance to the applicant in 2012-13","8.On Friday, 14 September 2012 at 11.45 p.m., following a request by the local medical services and information received from the municipal authorities, the applicant was apprehended by the police and taken to Gorno-Altayskaya Psychiatric Hospital (\u0413\u043e\u0440\u043d\u043e-\u0430\u043b\u0442\u0430\u0439\u0441\u043a\u0430\u044f \u043f\u0441\u0438\u0445\u0438\u0430\u0442\u0440\u0438\u0447\u0435\u0441\u043a\u0430\u044f \u0431\u043e\u043b\u044c\u043d\u0438\u0446\u0430, hereinafter \u201cGAPB\u201d). The grounds for the request were the refusal of the applicant to undergo planned outpatient treatment, stated ideas concerning revenge against and murder of certain regional officials, and the applicant\u2019s own complaints about the \u201cworsening\u201d of his condition.","9.On 15 September 2012 a medical counselling panel composed of the resident psychiatrists of the hospital examined the applicant and diagnosed him with schizotypal personality disorder in decompensation. The panel also found that the applicant was a danger to himself or others and there was a risk of significant damage to his health owing to the deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance. The relevant parts of the panel\u2019s report read as follows:","\u201c[The report begins with a detailed account of the applicant\u2019s personal and medical history with a special accent on the events related to the assembly and use of explosive devices and his subsequent involuntary treatment in psychiatric facilities.]","[Mr Makarov] refused medication stating that \u2018he [had] a sufficient supply\u2019. Refused planned inpatient treatments. In recent months the attending psychiatrist has observed changes in his mental state \u2013 mood swings from depression to hypomania, statements about \u2018social pressure\u2019, and conflicts with local and regional public bodies. During the appointments he mentioned \u2018bad ideas about killing Mr B. [the governor of the region]\u2019 ...","Mental state: Conscious. Since his admission refused to discuss his condition, actions, behaviour, reasoning that \u2018this whole situation is a political conspiracy of MrB. and his team\u2019; considers medical personnel and doctors to be \u2018accomplices\u2019, \u2018you are in with B.\u2019s gang\u2019. Does not engage in discussion, leaves the doctor\u2019s office, slams doors. Refuses to consume food and to give samples for analysis. Suspicious of all statements and actions directed at him.","Conclusion: Considering the clinical history of severe mental disorder, avoidance of in- and outpatient treatment, criminal behaviour in acute mental state in the past, his own complaints about \u2018worsening\u2019 of the condition, coupled with refusal of voluntary treatment, the panel [considers involuntary hospitalisation in a psychiatric facility to be necessary] ...\u201d","10.On Monday, 17 September 2012 the hospital applied for judicial authorisation of the applicant\u2019s involuntary hospitalisation under section29(a) and (c) of the Psychiatric Assistance Act 1992, since the applicant was a danger to himself or others and there was a risk of significant damage to his health owing to the deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance. On the same day the Gorno-Altayskiy Town Court (\u0413\u043e\u0440\u043d\u043e-\u0430\u043b\u0442\u0430\u0439\u0441\u043a\u0438\u0439 \u0433\u043e\u0440\u043e\u0434\u0441\u043a\u043e\u0439 \u0441\u0443\u0434, hereinafter \u201cthe Town Court\u201d) received the application and extended the applicant\u2019s detention until 20 September 2012.","11.On 19 September 2012 the Town Court granted the application for the applicant\u2019s involuntary hospitalisation. The hearing was attended by the applicant, his counsel Mr M., the representative of the hospital, and the prosecutor. Upon an application by the prosecutor, the court ordered that the hearing be held in camera in order to protect the applicant\u2019s privacy in respect of his medical condition; the applicant himself and his representative objected to that decision. The relevant parts of the judicial order read as follows:","\u201c[The reasoning of the order begins with a detailed account of the applicant\u2019s personal and medical history with a special accent on the events related to the assembly and use of explosive devices and his subsequent involuntary treatment in psychiatric facilities.]","[According to his medical records] on 7 November 2011 Mr Makarov complained of aggravation of his mental state: tension, restless sleep, gloominess, references to the need for psychiatric treatment, however he refused it owing to lack of trust in the doctors ...","Between December 2011 and March 2012 Mr Makarov did not visit his attending psychiatrists despite repeated reminders ...","On 11 July 2012 during a visit to his attending psychiatrist Mr Makarov complained of \u2018bad ideas of killing Mr B.\u2019 and other persons said by him to be involved in making his diagnosis public. Complained of persecution by local media, officials, insisted on obtaining a certificate concerning aggravation of his mental condition. Schizotypal personality disorder in acute state. Refused planned inpatient treatment.","[The order goes on to provide an account of the applicant\u2019s most recent hospitalisation and reproduces the relevant parts of the medical counselling panel report.]","The court considers that the report of the medical counselling panel was prepared by competent professionals in the relevant field of studies, and due consideration was given to the clinical history of Mr Makarov ... The report contains the symptoms [showing the severity of Mr Makarov\u2019s condition], it states the diagnosis. Having regard to the information obtained through psychiatric observation, the history of criminal behaviour, anxiety, tension and ideas in respect of public officials, the experts concluded that in his current mental state Mr Makarov is a danger to himself or others and there was a risk of significant damage to [his] health owing to the deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance. There are no reasons to doubt the objectivity and impartiality of the experts.","During the hearing Mr Makarov did not contest his diagnosis ... however he argued that his disorder was not severe and he was in a remission state ... Refused inpatient treatment ... Stated that he needed specialised assistance, but not from GAPB; in his statements and replies demonstrated denial and aversion towards [any assistance from them] ... Stated that he supressed the need for psychiatric care with willpower ...","It has been established during the hearing that Mr Makarov needs psychiatric assistance, since otherwise he may suffer from severe deterioration of his health, because he suffers from a severe mental disorder, avoids treatment, refuses assistance of attending psychiatrist, his mental condition aggravated, he has aggressive thoughts and ideas, refuses food, refuses voluntary inpatient treatment ...\u201d","12.In a separate ruling the Town Court observed that the application for involuntary hospitalisation had been submitted outside the statutory forty-eight-hour time-limit and urged the hospital administration to avoid similar occurrences in future.","13.On 19 October 2012 the applicant\u2019s counsel appealed against the order arguing, inter alia, (a) that the Town Court had failed to demonstrate the need for hospitalisation, and (b) that the application for involuntary hospitalisation had been lodged outside of the statutory time-limit and thus the applicant had been detained without a court order for more than forty\u2011eight hours. On29October 2012 his counsel lodged an additional statement of appeal.","14.On 14 November 2012 the Supreme Court of the Republic of Altay (\u0412\u0435\u0440\u0445\u043e\u0432\u043d\u044b\u0439 \u0441\u0443\u0434 \u0420\u0435\u0441\u043f\u0443\u0431\u043b\u0438\u043a\u0438 \u0410\u043b\u0442\u0430\u0439) dismissed the appeal and upheld the lower court\u2019s order as well-reasoned and lawful. Concerning the applicant\u2019s detention beyond the time-limit without a court order, the Supreme Court stated that the delay had been caused by the hospital administration, while the courts had complied with the procedural time-limits."],"5":["1. The applicant, C.P., is a British national, who was born in 1991 and lives in Belfast. The President granted the applicant \u2019 s request for his identity not to be disclosed to the public (Rule 47 \u00a7 4). He is represented before the Court by Mr F. Shiels of M. Madden & Finucane, a firm of solicitors practising in Belfast.","2. The United Kingdom Government (\u201cthe Government\u201d) were represented by their Agent, Ms M. Addis of the Foreign and Commonwealth Office.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","1. The complaints against the applicant and his exclusion from school","4. The applicant was a pupil at Dunluce School (\u201cthe school\u201d) during the academic year 2006\/7. As a \u201ccontrolled school\u201d the school was managed by its Board of Governors and the Employing Authority was the North Eastern Education and Library Board (\u201cthe N.E.E.L.B\u201d).","5. On 31 January 2007 a female pupil (\u201cthe complainant\u201d) informed the Principal of the school that the applicant was engaged in conduct inside and outside school that was causing her distress. The complainant did not wish to make a formal complaint against the applicant and did not want him to be informed of her allegations because she was afraid of him. Later that day, a friend of the complainant told the Principal that the complainant was suffering from deep distress, had extremely low self-esteem, and was \u201cthinking of ending it all\u201d. The Principal also spoke to the complainant \u2019 s mother, who expressed similar concerns about her daughter \u2019 s state of mind and the possibility of suicide. She identified the applicant as the cause of the problem and said the complainant was very vulnerable and needed to be monitored closely.","6. In the days that followed, the Principal had daily meetings with the complainant and some of her friends. He received confirmation from her friends about aspects of the applicant \u2019 s behaviour which they had witnessed.","7. Consequently, the Principal regarded the complainant \u2019 s report as being \u201csincere and genuine\u201d and \u201cextremely serious\u201d.","8. On 1 February 2007 the Vice-Principal of the school attended a multi \u2011 disciplinary case conference arranged by Social Services to consider the applicant. The conference, which was attended by the applicant \u2019 s mother, his grandmother, and a representative of the police, had been convened after one or more persons alleged that he had committed criminal offences of a sexual and violent nature outside the school. These complaints were unrelated to the one made by the complainant.","9. When the Principal of the school was informed of the allegations discussed at the conference, he contacted a Child Protection Officer from the N.E.E.L.B. He informed the officer of the complainant \u2019 s allegations and expressed his concern about the risk the applicant might pose to other pupils.","10. On 6 February 2007 a Risk Assessment meeting was held. At the meeting \u2013 to which the applicant, his mother (his legal guardian) and his grandparents (with whom he was residing) were not invited \u2013 a formal \u201cAction Plan\u201d was agreed. Social Services were to carry out an assessment of the alleged incident with the complainant and the impact on her mental state. While the assessment was being carried out, two options were considered: constant supervision of the applicant at school; and suspension of the applicant with arrangements for his education off-site. As the Principal was not satisfied that sufficient teaching and staff resources were available to ensure constant monitoring of the applicant on school premises, it was agreed that he should be suspended from school for five days, with the possibility of extension, while the assessment of the complainant took place. In order to protect the complainant \u2019 s identity, it was decided that the applicant should not be informed about her complaint.","11. On 7 February 2007 the Principal informed the applicant in person that he was being suspended for a period of five days and that the suspension was precautionary. He was informed that allegations had been made against him in relation to his behaviour but that no further details could be provided. Following the meeting, the Principal telephoned the applicant \u2019 s mother to tell her that he had been suspended. He also wrote to his grandparents to inform them that \u201cfollowing the case conference on Thursday 1 February 2007\u201d and \u201c[b]ased on the information presented at that meeting\u201d the applicant had been suspended for five days with the possibility of extension. The grandparents were further informed that work would be available for collection at the school during this period.","12. The applicant was due to sit his GCSE (General Certificate of Secondary Education) examinations in the spring of 2007. GCSEs are important national assessments in a number of subjects, studied over the course of two years, which lead to internationally recognised qualifications. At the date of his suspension, the GCSE curriculum had already been completed and the focus of education at the school was on revision and preparation for the examinations.","13. The applicant \u2019 s suspension was extended for three further five-day periods until 13 March 2007. The applicant \u2019 s grandparents were notified of these extensions by letters dated 14 February 2007, 23 February 2007 and 5 March 2007.","14. From 7 February 2007 to 14 March 2007 the school had made work available for the applicant in the subjects of Mathematics, English, Science, Religion, Business and Communication Systems, Music and History which was to be collected from the school and then returned for marking. The work was collected only during the first week of his suspension and it was not returned for marking.","15. On 12 March 2007 the Principal wrote to the applicant \u2019 s grandparents to inform them that home tuition had been arranged with effect from 14 March 2007 and that the applicant would thereafter be marked on the school roll as \u201ceducated off-site\u201d. From 13 March 2007 to 20 April 2007 the applicant received eight hours of home tuition a week in English, Mathematics and Science. He co-operated well with the tuition provided, but it was noted that he was a pupil who needed assistance to improve his basic skills.","16. On 14 March 2007 a strategy meeting took place with a view to assessing risk and discussing the ongoing management of the situation.","17. On 20 April 2007 the Principal wrote to all Year 12 pupils, including the applicant, informing them that the normal Year 12 timetable had ceased and that they were permitted to study at home or at school pending their GCSE examinations.","18. On 4 May 2007 the applicant \u2019 s mother and grandparents attended a meeting at the school to discuss his situation and to facilitate his re \u2011 integration. It was noted that Social Services had not yet completed their assessment of the complainant. However, as the Year 12 timetable had ended, there were sufficient resources to allow for close supervision of the applicant. He therefore returned to the school but was isolated from the other pupils on grounds of his own personal safety.","2. Proceedings in the domestic courts","19. The applicant brought proceedings for judicial review against the school and the N.E.E.L.B. on the grounds, inter alia, that his suspension had been unlawful and that there had been a breach of his right to education under Article 2 of Protocol No. 1 to the Convention.","20. Pursuant to paragraphs 3 and 4 of the Scheme prepared by the N.E.E.L.B. (see section on Domestic Law and Practice below), the Principal has a power to exclude a pupil (permanently or temporarily) on disciplinary grounds. Where a pupil is excluded on disciplinary grounds, he must be given reasons for the suspension and be given an opportunity to put forward his version of events.","21. In a judgment handed down on 6 December 2007, the High Court judge found that as the applicant \u2019 s suspension had been \u201cprecautionary\u201d rather than \u201cdisciplinary\u201d, it had not been subject to the requirements of the N.E.E.L.B. Scheme, which only applied to \u201cdisciplinary\u201d suspensions. Therefore, although the reasons for the suspension provided to the applicant \u2019 s mother and grandparents suggested that he was suspended on account of the incidents discussed at the multi-disciplinary case conference on 1 February 2007, the judge found that in the circumstances the lack of information provided had been justified. With respect to Article 2 of Protocol No. 1, the judge held that there had been no breach of the applicant \u2019 s right to education as he had not been denied effective access to the education facilities provided in Northern Ireland. Consequently, the application for judicial review was dismissed.","22. The applicant appealed on the ground that the judge had been wrong to conclude that his suspension was lawful under domestic law. On 26 February 2009 the Court of Appeal dismissed the applicant \u2019 s appeal. In doing so, it accepted that, although the Schools (Suspension and Expulsion of Pupils) Regulations (Northern Ireland) 1995 (\u201cthe 1995 Regulations\u201d) contained no express provision dealing with \u201cprecautionary\u201d suspension, such a power could be inferred. However, such a suspension did not need to comply with the N.E.E.L.B. \u2019 s Scheme; the only requirement was that it should be exercised reasonably. Bearing this in mind, the court was satisfied that the applicant, his mother and his grandparents had been sufficiently aware of the reasons for his suspension. The Principal had been in a difficult position where no perfect solution was possible. The course he chose had not been the only one realistically available, but it was at least defensible as a practical means of protecting the complainant and ensuring that the applicant \u2019 s education did not suffer beyond that which was inevitable as a result of his suspension.","23. The applicant was granted leave to appeal to the Supreme Court. On 23 June 2010 the Supreme Court handed down its judgment in In the matter of an application by \u2018 JR17 \u2019 for Judicial Review (Northern Ireland) [2010] UKSC 27.","24. The Supreme Court disagreed with the lower courts, finding that the applicant \u2019 s suspension had been \u201cdisciplinary\u201d and not \u201cprecautionary\u201d. It therefore found by a majority that the applicant had been unlawfully suspended from school between 7 February 2007 and 20 April 2007. According to Lord Dyson in his leading judgment, the suspension was unlawful because the applicant had not been given an opportunity to put forward his version of events prior to suspension (as required by paragraph 4.2.2. of the Scheme prepared by the N.E.E.L. B.) and because the letter of 7 February 2007 did not give reasons for the suspension (as required by paragraph 5.1. of the Scheme). In reaching this conclusion, Lord Dyson observed","\u201c53. The Principal was undoubtedly faced with a very difficult situation on 1 February. Understandably, he was extremely concerned for the well-being of [the complainant]. He decided that he should respect her confidence. This decision was bound to put him in conflict with para 4.2.2 of the Scheme and probably para 5.1 as well. He decided to suspend the appellant without giving him an opportunity to give his version of events and without giving his parents\/grandparents the reasons for his decision, and to suspend him until Social Services had completed their assessment of [the complainant]. It is not clear what assessment Social Services was being required to undertake, still less how the outcome of the assessment would impact on the decision to suspend the appellant. Further, it is not clear what the Principal would have done if (as proved to be the case) the assessment was not completed within the period available for suspensions (not more than 45 days in a school year).\u201d","25. Likewise, Lord Rodger noted","\u201c89. ... Here, the Principal took a serious view of what the girls had told him. He clearly thought that the matter could not be passed over without further investigation and without appropriate steps being taken if the allegation proved to be true. But the Principal could never have properly concluded that the allegation was indeed true and taken action to deal with the situation without informing the appellant of the allegation against him and giving him an opportunity to give his version of events. So this was a situation where, as envisaged in the policy paper, the girl \u2019 s complaint could not be kept confidential. ...","90. In fact, the Principal took no steps to investigate the allegation himself. Instead, on 6 February, the risk assessment meeting decided that Social Services were to carry out an assessment of the alleged incident with the girl and of any impact on her. It does not appear that any approach to the appellant was envisaged. So this assessment was unlikely to be conclusive and certainly could never have resulted in any action against the appellant. But, in the meantime, the appellant was to be suspended, initially for 5 days, while the assessment took place....\u201d","26. The court dismissed the applicant \u2019 s claim that his suspension amounted to a violation of Article 2 of Protocol No. 1. Relying on the decision of the House of Lords in Ali v. Headteacher and Governors of Lord Grey School [2006] UKHL 14, Lord Dyson, in his leading judgment, concluded that there was no Convention right to education of a particular kind or quality other than that prevailing within the Contracting State. There would therefore be a breach of Article 2 only if the individual was denied \u201ceffective access\u201d to such educational facilities as the State provided for such pupils. In this case educational facilities were available for pupils who had been suspended from school and the applicant had not been denied access to them. Consequently, there had been no restriction on his right to education and no question of proportionality arose.","27. In agreeing with the other Supreme Court Justices in respect of the unlawfulness of the applicant \u2019 s exclusion, Lady Hale noted that the applicant \u2019 s exclusion had been unjust in two ways:","\u201c99. He has been away from school for nearly three months at a critical time. His tutor \u2019 s reports indicate that he attended and cooperated very well with the eight hours \u2019 tuition he was offered each week but he was clearly a pupil who needed help to improve basic skills. ... More seriously, he was not given any opportunity of explaining his side of the story in a way which would have made any difference. The Principal left others to take the matter forward and made no further attempt to establish the truth or to negotiate a solution which would enable both the pupils concerned to continue their education in the school.","... ... ...","103. As to article 2 of the First Protocol to the European Convention on Human Rights, the test is that laid down by Lord Bingham of Cornhill in the Lord Grey School case at para 24: \u201chave the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils?\u201d This is a question of fact and degree. Left to myself, I might have thought that three months out of school in the run-up to important public examinations was indeed to deny him effective access to the educational facilities which the state provides for year 12 pupils. He should not have been relegated to eight hours \u2019 tuition a week for six weeks. But I appreciate that others think and have thought that it may be enough to be \u201ceffective\u201d. The appellant has achieved his major objective of establishing that he should not have been suspended in the way that he was. Had this been recognised at an early stage, he might also have achieved his objective of being allowed back into school. The only purpose of finding a violation of his Convention rights would be to pursue a claim for damages, which could only succeed if the court were satisfied that an award were necessary to afford him just satisfaction: see Human Rights Act 1998, s 8(3). Miss Quinlivan rightly did not place this at the forefront of her submissions. I see no point, therefore, in pressing my doubts to a dissent but, as a declaration is a discretionary matter, I would prefer to make no declaration at all on this issue, the appellant having achieved just satisfaction from his declaration on the first.\u201d","B. Relevant domestic law and practice","1. Legislative framework in Northern Ireland for suspension and expulsion","28. Article 49 of the Education and Libraries (Northern Ireland) Order 1986 (\u201cthe 1986 Order\u201d) applies to \u201ccontrolled schools\u201d. It provides that:","\u201c(1) Each board shall prepare a scheme specifying the procedure to be followed in relation to the suspension or expulsion of pupils from schools under its management.","....","(4) A scheme prepared under paragraph (1) ... shall provide that a pupil may be expelled from a school only by the expelling authority and shall include provision for such other matters as may be prescribed.\u201d","29. Article 134 provides that the Department of Education for Northern Ireland (\u201cthe Department\u201d) may make regulations for the purpose of giving effect to the 1986 Order. Pursuant to article 134 of the 1986 Order, the Department made the Schools (Suspension and Expulsion of Pupils) Regulations (Northern Ireland) 1995 (\u201cthe 1995 Regulations\u201d). Regulation 3 provides:","\u201c3. Without prejudice to the generality of Article 49(4) of the 1986 Order a scheme prepared under Article 49(1), (2) or (3) of that Order shall include provision for the following other matters, that is to say \u2013","(a) a pupil may be suspended from school only by the principal;","(b) an initial period of such suspension shall not exceed five school days in any one school term;","(c) a pupil may be suspended from school for not more than forty-five school days in any one school year;","(d) where a pupil has been suspended from school, the principal shall immediately -","i. give written notification of the reasons for the suspension and the period of the suspension to the parent of the pupil, to the board and to the Chairman of the Board of Governors...; and","ii. invite the parent of the pupil to visit the school to discuss the suspension;","(e) the principal shall not extend a period of suspension except with the prior approval of the Chairman of the Board of Governors and shall in every such case give written notification of the reasons for the extension and the period of extension to the parent of the pupil, to the board....\u201d","30. The N.E.E.L.B. has prepared a Scheme entitled \u201cProcedures for the Suspension and Expulsion of Pupils in Controlled Schools\u201d which elaborates on the procedural safeguards contained within the 1995 Regulations (\u201cthe Scheme\u201d). The Scheme includes the following requirements :","\u201c3.1 A pupil may be suspended only by the principal.","3.2 An initial period of suspension shall not exceed 5 school days in any one school term.","3.3 A pupil may be suspended from school for not more than 45 school days in any one school year.","3.4 The principal shall not extend the period of suspension except with the prior approval of the chairman of the Board of Governors and shall in every such case give written notification of the reasons for the extension and the period of extension to the parent of the pupil and to the Board.","Steps to be Followed Prior to Suspension:","4.1 The school \u2019 s disciplinary policy describes the standards of behaviour expected from pupils and outlines the procedures and sanctions to be adopted when these guidelines are not adhered to.","4.2 The disciplinary policy will provide for the suspension of a pupil in certain circumstances. The option of suspending a pupil for a prescribed period should only be considered:","4.2.1 after a period of indiscipline \u2013 The school is required to maintain a written record of events and of the interventions of teachers, contacts with parents and any requests for external support from the Board \u2019 s educational welfare and educational psychology services; and\/or","4.2.2 after a serious incident of indiscipline \u2013 The school is required to have investigated and documented the incident. The investigation should include an opportunity for the pupil to be interviewed and his or her version of events given before the decision to suspend.","Instigating Suspension","5.1 On taking the decision to suspend a pupil the principal must immediately notify the parents, in writing of the suspension, its duration and the reasons for the suspension (for sample letters see appendix 2). The letter notifying the parents of the suspension must be sent out on the day of the suspension. Its letter is sent home with the pupil this must be followed by a copy sent by first class post.","5.2 The letter must also invite the parents to visit the school to discuss the suspension. Should the parents accept this invitation the principal may consider it appropriate to invite other parties such as educational welfare, educational psychology or social services. The meeting should be chaired by the principal.","5.3 Schools should keep full notes of the meeting.","5.4 A copy of the letter must be sent to the chairman of the Board of Governors.","5.5 All suspensions from all grant aided schools must be notified to the Board using form S1 (see appendix 3) and accompanied by a copy of the letter sent to the parent.","5.6 A suspended pupil can only be sent home before the end of the normal school day with the agreement of the parent and only if the pupil can be delivered directly into the care of the parent or of a person previously agreed by the parents.","5.7 Work should be made available to the pupil during the suspension.","5.8 On the day of the pupil \u2019 s return from suspension the pupil should report immediately to the principal or nominated teacher.\u201d","2. Background to the legislation","31. The background to the legislation is to be found in the \u201cReport of the Working Party on the Management of Schools in Northern Ireland (1979)\u201d otherwise known as the \u201cAstin Report\u201d. The Astin Report stated that there was an urgent need for clarification and greater precision in legislation concerning suspensions and expulsions of pupils from grant-aided schools (paragraph 7.70). It recommended that suspension and expulsion, though regrettably necessary on occasion, should be steps of last resort (paragraph 7.71).","3. Department of Education policy guidance relating to suspensions","32. A 2001 publication of the Department of Education entitled \u201cPastoral Care in Schools: Promoting Positive Behaviour\u201d deals with suspensions and expulsions. In relation to suspensions it notes that \u201cinformal\u201d suspensions are illegal and that all suspensions should be carried out in accordance with the legislation and relevant scheme. In all cases, it stressed, the principles of natural justice apply and a key consideration will be whether the punishment was proportionate. The pupil concerned must always be able to give his or her side of the case and suspension should be made only after full examination of the relevant facts and evidence.","4. Judicial consideration of Article 2 of Protocol No. 1 to the Convention","33. The leading domestic judicial decision is that of the House of Lords in Ali v. Headteacher and Governors of Lord Grey School [2006] UKHL 14. Lord Bingham, giving one of the two leading judgments, considered that:","\u201cThe underlying premise of the article was that all existing member states of the Council of Europe had, and all future member states would have, an established system of state education. It was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states. ... The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils?\u201d","34. Lord Hoffmann put his interpretation of the provision in slightly different terms:","\u201cExcept in cases in which the applicant has been wholly excluded from some sector of the domestic educational system, the European Court \u2019 s jurisprudence on article 2 of the First Protocol has never shown any interest in the procedures by which the applicant was denied entry to or expelled from a particular educational establishment. ... article 2 of the First Protocol is concerned only with results: was the applicant denied the basic minimum of education available under the domestic system? For this purpose it is necessary to look at the domestic system as a whole. ...","....","61. ... In the case of article 2 of the First Protocol, that would have required a systemic failure of the educational system which resulted in the respondent not having access to a minimum level of education.\u201d"],"6":["1. The first applicant, Ms Barbara van Beukering, is a Netherlands national born in 1966 and resident in Amsterdam. She was, at the relevant time, the chief editor of the newspaper Het Parool.","2. The second applicant, Het Parool B.V., is a limited liability company under Netherlands law with its seat in Amsterdam. It publishes the newspaper Het Parool.","3. Het Parool is a newspaper focusing on news relevant to the Amsterdam region. Its readership is likewise to be found mostly in the Amsterdam region, although nationwide circulation is claimed for it.","4. The applicants were represented before the Court by Mr J.P. van den Brink, a lawyer practising in Amsterdam.","A. The circumstances of the case","5. The facts of the case, as submitted by the applicants, may be summarised as follows.","1. Factual background","6. In 2007 the public-service television broadcaster NPS aired a series of five television documentaries entitled Vrije Radicalen (Free Radicals), each episode being devoted to a young person who had made radical choices that set them apart from mainstream society. One episode focused on R.P., a young man born in 1988. It mentioned his lifestyle as an active member of a street gang and as a performer of rap music and his troubled relationship with his mother. R.P. himself was shown recognisably and his name was mentioned. The episode was broadcast twice, in November 2007 and June 2008, and was available for downloading from the internet free of charge until late 2009.","7. In 2009 a video clip was published on YouTube that showed R.P. performing rap music in memory of a fellow rapper who had been killed in a fight. This video clip was, apparently, removed on an unknown date.","8. In 2009 R.P. was admitted to a shelter for the homeless in Amsterdam. On 15 June 2009 R.P. was warned that he would have to leave because of his aggressive behaviour. He drew a knife and stabbed three staff members, killing one and inflicting serious injury on the two others.","9. On 19 September 2009, shortly before the trial of R.P. was to open, Het Parool published an article with the heading \u201cRap artist with a short temper\u201d ( Rapper met een kort lontje ) announcing that R.P. was due to appear in court on charges related to the above-mentioned stabbing. The article described R.P. \u2019 s personal circumstances and background. The information was taken from the documentary described above. The article, which did not state R.P. \u2019 s full surname, was accompanied by a portrait image of R.P., a still picture likewise taken from the documentary. The picture was taken at an angle, showing a prominent scar \u2013 stated in the article to have resulted from a fight \u2013 next to one of R.P. \u2019 s eyes. The article and the portrait image were published both in the newspaper itself and on its internet web site.","10. The portrait image was removed from the newspaper \u2019 s web site on 30 December 2009. The text of the article remains online to this day.","11. On 12 June 2012 R.P. was convicted on appeal of manslaughter and attempted manslaughter and of lesser additional crimes. He was sentenced to twelve years \u2019 imprisonment and placed at the disposal of the Government ( terbeschikkingstelling, \u201cTBS order\u201d) with confinement in a custodial clinic ( bevel tot verpleging van overheidswege ).","12. The trial was covered by other newspapers, television news broadcasters and internet web sites. Some included a drawing stated to be of R.P. in court; others used still pictures copied from the documentary before it was taken offline.","2. Proceedings in the domestic courts","13. On 28 December 2009 R.P., through his lawyer, wrote to the first applicant demanding removal of the portrait image from the newspaper \u2019 s web site and payment of 5,000 euros (EUR). Relying on section 21 of the Copyright Act ( Auteurswet; see below), he stated that his reasonable interests were affected by the publication: he was recognised in the remand prison where he was being held and feared that he would not be able to find a job after his release.","14. R.P. summoned the applicants before the Amsterdam Regional Court ( rechtbank ), seeking a declaration that the publication of his portrait image in the newspaper on 19 September 2009 and on the newspaper \u2019 s web site from 19 September 2009 until 30 December 2009 was unlawful; an order requiring the applicants to ensure that the portrait image no longer be available on the internet at all; and compensation for non-pecuniary damage in an amount of EUR 10,000.","15. On 29 December 2010 the Regional Court gave judgment dismissing R.P. \u2019 s claims. It held that since the portrait image was appropriate to the newspaper article and had been published in a television documentary in which R.P. had cooperated of his own volition, there was no unlawful interference with R.P. \u2019 s rights. R.P. appealed.","16. On 20 March 2012 the Amsterdam Court of Appeal ( gerechtshof ) overturned the judgment of the Regional Court and held in favour of R.P. The Court of Appeal recognised that the case raised questions under both Article 8 of the Convention, in that it concerned R.P. \u2019 s right to respect for his private life, and Article 10, in that it concerned the applicants \u2019 freedom of journalistic expression. Its reasoning included the following:","\u201c3.10 Although it can be conceded to [the applicants] that the image does not contain details of [R.P. \u2019 s] private life [English in the original], strengthens the expressive power of the article and is relevant in itself, the Court of Appeal considers that publication of the image of his face with the article constitutes an interference with R.P. \u2019 s private life. It should be remembered in this connection that it appears from the article that R.P. is suspected of a (very serious) crime. The next question that needs an answer is whether, taking into account [the applicants \u2019 ] freedom of expression, this interference constitutes an unlawful act vis-\u00e0-vis R.P.","3.11 The Court of Appeal takes the view that this is the case. It takes the view that R.P. is not required to suffer publication of the recognisable portrait with the article. It would have been possible for [the applicants] to publish a less recognisable portrait of R.P. without significantly detracting from the expressiveness of the article, for example by placing a black rectangle over the eyes. [The applicants] have argued in this connection that it has been held in other cases that this measure has an even more criminalising effect, but that does not apply in this case, because the article concerned the suspicion of a crime of violence and the impending trial thereof by a criminal court. The Court of Appeal takes the view that in publishing portraits of persons suspected of criminal acts reticence is, in principle, appropriate.","3.12 The circumstance that in 2007 R.P. gave his active cooperation to a documentary that was broadcast on television in 2007 and 2009 and could be viewed on the internet until the end of 2009 does not justify publishing a recognisable portrait together with the article about that documentary and the impending trial. R.P. has not, by cooperating in that documentary (and the rap clip published on YouTube), become a public figure to the extent that he must for that reason suffer his recognisable portrait to be published in the newspaper with nationwide coverage Het Parool and on the website www.hetparool.nl, the less so because he is thereby recognisably connected to a (very serious) crime. As held above, a less recognisable portrait could have limited the interference with his private life without doing any real harm to the expressiveness of the article. It makes no difference that portraits of R.P. (derived from the documentary and the rap clip) can still be found in the internet. What is important is that [the applicants] at the time published an image in the newspaper, which \u2013 unlike in the case of use of the internet \u2013 can be seen in one glance and without any further manipulations. The freedom [the applicants] have, in principle, to determine in accordance with their own views in what way they will inform the public of a newsworthy fact does not go so far that in the specific circumstances of the present case they were at liberty to publish a recognisable portrait of R.P. with the article.","3.13 Taking all circumstances into account, the Court of Appeal therefore finds that R.P. \u2019 s right to respect of his privacy outweighs [the applicants \u2019 ] freedom of expression. The wrongful nature of [the applicants \u2019 ] acts vis-\u00e0-vis R.P. is therefore established. ...\u201d","The applicants were held jointly and severally liable and ordered to pay EUR 1,500 to R.P. in respect of non-pecuniary damage.","17. The applicants lodged an appeal on points of law ( cassatie ) with the Supreme Court ( Hoge Raad ), arguing, as relevant to the case, that the Court of Appeal had overlooked R.P. \u2019 s own responsibility through having cooperated with the documentary and the rap clip, combined with his having stabbed one staff member of the homeless shelter to death and severely wounded two others, from which it followed, in their submission, that R.P. could not claim the same protection of his private life to which he would otherwise have been entitled. They submitted in addition that the Court of Appeal \u2019 s position was tantamount to an absolute prohibition of publication of a recognisable photograph of any criminal suspect who was not a public figure.","18. The Supreme Court gave judgment on 4 October 2013 dismissing the appeal. Its reasoning included the following:","\u201c3.3.2 ... The Court of Appeal has rightly taken as its starting point that the question whether R.P. \u2019 s right to respect for his private life should weigh more heavily in the balance than [the applicants \u2019 ] freedom of expression should be answered in the light of all the circumstances of the case, and taking into account the necessity and proportionality test of Articles 10 \u00a7 2 and 8 \u00a7 2 of the Convention respectively (see, among other authorities, the Supreme Court \u2019 s judgment of 5 October 2012, ECLI:NL:HR:2012:BW9230, Netherlands Law Reports ( Nederlandse Jurisprudentie ) 2012\/571).In the light of this standard, it does not reflect an incorrect understanding of the law that the Court of Appeal has held that publication of a recognisable portrait, taken from [the 2007 documentary], is not justified by the circumstance that R.P. has cooperated with the documentary about his person and the rap clip. Nor is the finding of the Court of Appeal that publication was wrongful vis-\u00e0-vis R.P. based on incomprehensible reasoning. As is shown by paragraph 3.12 of its judgment, the Court of Appeal has in so finding taken into account the nature and content of that documentary and the circumstance that it was made before the crimes were committed of which R.P. was suspected at the time the portrait was published. The Court of Appeal has, furthermore, taken into account that [the applicants] had other means at their disposal than complete recognisable publication of the image, which would not have harmed the expressiveness of the publication and would have constituted a lesser interference with R.P. \u2019 s right to respect for his private life. The Court of Appeal has thus expressed the view that publishing the unmodified image was neither necessary for the expressiveness of the article, taking into account all the circumstances of the case, nor proportionate to the aim pursued, namely informing the public. This finding does not amount to an absolute prohibition as suggested in the ground of appeal.\u201d","B. Relevant domestic law and practice","19. Section 21 of the Copyright Act provides as follows:","\u201cIf a portrait has been made without having been commissioned by the person portrayed or for that person \u2019 s benefit, then the person to whom the copyright to that portrait belongs shall not be allowed to publish it in so far as a reasonable interest of the person portrayed, or after that person \u2019 s death, one of that person \u2019 s surviving kin weighs against publication.\u201d","20. In its judgment of 5 October 2012, ECLI:NL:HR:2012:BW9230, Netherlands Law Reports 2012\/571 ( Peter R. de Vries\/Koos H. ), the Supreme Court, citing Axel Springer AG v. Germany [GC], no. 39954\/08, 7 February 2012, and Von Hannover v. Germany (no. 2) [GC], nos. 40660\/08 and 60641\/08, ECHR 2012, gave its approval to reasoning of the Amsterdam Court of Appeal summarised in the following terms:","\u201cIn the event of a conflict between on the one hand the right to freedom of expression and on the other the right to respect for private life the answer to the question which of these two rights prevails in the specific case must be found by weighing all relevant circumstances of the case. In this connection the position of the press is of particular significance in view of, on the one hand, the duty of the press to spread information and ideas of public importance and to fulfil its vital role of public watchdog, and on the other hand, of the right of the public to receive information and ideas. In this weighing process, the starting point is not that the right to freedom of expression, guaranteed by Article 7 of the Constitution and Article 10 of the Convention, takes precedence. The same applies to the rights guaranteed by Article 8 of the Convention. The test must be applied in one go, the finding that one of the two rights, taking into consideration all relevant circumstances, weighs more heavily in the balance than the other implying that the interference with the other right meets the necessity test of Article 10 \u00a7 2 or Article 8 \u00a7 2 of the Convention as the case may be. If use is made of recognisable images, it is of no importance for the purposes of this weighing process whether the claim is based not only on a violation of private life but additionally on a violation on the right to oppose publication of one \u2019 s portrait.\u201d","C. Recommendation by the Committee of Ministers of the Council of Europe","21. The Appendix to the Recommendation Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings (adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers \u2019 Deputies) contains the following principle of particular interest to the present case:","Principle 8 Protection of privacy in the context of on-going criminal proceedings","\u201cThe provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.\u201d"],"7":["8.The applicants were born in 1985 and 1980 and live in Jilemnice and Prague respectively.","A.Application lodged by Ms \u0160\u00e1rka Dubsk\u00e1","9.The applicant gave birth to her first child in hospital in 2007 without any complications. According to her, during the birth the medical personnel present were urging her to agree to undergo various kinds of medical intervention even though she had expressly stated her wish not to be subjected to any unnecessary medical treatment. She was also forced to give birth in a position she did not find comfortable. She wanted to leave the hospital a few hours after the birth as both she and the baby were healthy, but a doctor ordered her to stay in the hospital. She therefore did not leave until the next day, when she presented a letter from her paediatrician, who confirmed that the applicant would take care of the child.","10.In 2010 the applicant became pregnant for the second time with an expected delivery date in the middle of May 2011. The pregnancy was free from complications and the medical examinations and tests did not indicate any problems. Since she considered that giving birth in a hospital had been stressful for her, the applicant decided to give birth at home and searched for a midwife to assist at the birth. However, she was unable to find any midwife who was willing to assist her with a home birth.","11.On 5 April 2011 she wrote to her health-insurance company and to the Liberec Regional Office (krajsk\u00fd \u00fa\u0159ad) asking for help in finding a midwife.","12.On 7 April 2011 the health-insurance company replied that Czech legislation did not provide for the possibility of a public health-insurance company covering costs arising from home births and that it therefore had no contracts with any health professionals providing such services. Moreover, prevailing expert medical opinion did not approve of home births.","13.In a letter of 13 April 2011 the Regional Office added that the midwives listed in its register of health professionals were, in any event, only allowed by law to attend births at premises possessing the technical equipment required by Decree no. 221\/2010 and not in a private home.","14.Not having found any health professional to assist her, the applicant gave birth to her son alone at home on 11 May 2011.","15.On 1 July 2011 she lodged a constitutional appeal (\u00fastavn\u00ed st\u00ed\u017enost), complaining that she had been denied the possibility of giving birth at home with the assistance of a health professional, in violation of her right to respect for her private life.","16.On 28 February 2012 the Constitutional Court (\u00dastavn\u00ed soud) dismissed the appeal, holding that it would be contrary to the principle of subsidiarity for it to decide on the merits of the case, because the applicant had not exhausted all the available remedies, which included an action for protection of personal rights under the Civil Code and an application for judicial review under Article 82 of the Code of Judicial Administrative Procedure. It nevertheless expressed its doubts as to the compliance of Czech legislation with Article 8 of the Convention and asked the relevant parties to initiate a serious and well-informed debate about new legislation. Nine out of the fourteen judges attached separate opinions to the decision, in which they disagreed with the reasoning behind it. Most of them considered that the Constitutional Court should have dismissed the appeal as an actio popularis and should have refrained from expressing any views on the constitutionality of the legislation concerning home births.","B.Application lodged by Ms Alexandra Krejzov\u00e1","17.The applicant is the mother of two children who were born at home in 2008 and 2010 with the assistance of a midwife. The midwives attended the births without any authorisation from the State.","18.According to the applicant, before deciding to give birth at home, she had visited several hospitals, which had all refused her requests to deliver the baby without any medical intervention that was not strictly necessary. They had also refused to agree to her wish for uninterrupted contact with the baby from the moment of birth, as the regular practice was to take the child away from the mother immediately after the birth to be weighed and measured and for further medical observation for a period of two hours.","19.At the time of lodging the present application, the applicant was pregnant again, with an expected delivery in the middle of May 2012. The pregnancy was free from complications and she again wished to give birth at home with the assistance of a midwife. However, she was unable to find a midwife willing to assist because of the risk of a heavy fine if medical services were provided without authorisation. The applicant asked various authorities to help to find a solution.","20.In a letter of 18 November 2011 the Ministry of Health replied that it did not provide medical services to individual patients and that the applicant should make enquiries to the City of Prague (M\u011bsto Praha), which, acting as a regional office, registered and issued licences to health professionals.","21.On 29 November 2011 the applicant\u2019s health-insurance company informed her that the attendance of a health professional at a home birth was not covered by public insurance.","22.On 13 December 2011 the City of Prague informed the applicant that no midwife registered in Prague was authorised to assist with home births.","23.On 7 May 2012 the applicant gave birth to a child in a maternity hospital in Vrchlab\u00ed, 140 km away from Prague. She had chosen that hospital because of its reputation for respecting the wishes of mothers during delivery. Nevertheless, according to her, not all her wishes had been respected. Despite the fact that both she and the child had been healthy and that no complications had occurred during the birth, the applicant had had to stay in the hospital for seventy-two hours. The newborn baby had been separated from her after the birth, and before leaving the maternity hospital the remains of the child\u2019s umbilical cord had been cut off despite her wishes to the contrary.","A.Guidelines issued and action taken by the Ministry of Health","24.In its bulletin no. 2\/2007 of February 2007 the Ministry of Health published practice guidelines, which stated:","\u201cConducting a delivery in the Czech Republic is regarded as a health-care service that is provided only in a health-care institution. Each health-care institution must fulfil the statutory requirements ... and the requirements laid down by the relevant secondary legislation.\u201d","25.On 20 March 2012 the Ministry of Health set up an expert committee on obstetrics with the objective of studying the issue of home births. There were representatives of care recipients, midwives, physicians\u2019 associations, the Ministry of Health, the Government\u2019s Commissioner for Human Rights and public health-insurance companies. The representatives of the physicians\u2019 associations boycotted the meetings, declaring that the current state of affairs was satisfactory and that, in their view, there was no need to change anything. Subsequently, the Minister of Health removed the representatives of care recipients, midwives and the Government\u2019s Commissioner for Human Rights, with the argument that only by changing the committee\u2019s composition in this way it would be possible for it to agree on certain conclusions.","26.On 18 January 2013 the Governmental Council for Equal Opportunities for Women and Men (Rada vl\u00e1dy pro rovn\u00e9 p\u0159\u00edle\u017eitosti \u017een amu\u017e\u016f), an advisory body to the Government, recommended the prevention of further discrimination against women in the enjoyment of their right to a free choice of the method and circumstances of giving birth and the place of delivery. It also recommended the prevention of discrimination against midwives by permitting them to practise their profession fully through their inclusion in the public health-insurance system. The Council also referred to the recommendations of the Committee on the Elimination of Discrimination against Women, which monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women, to support its position that women should have a choice of where to give birth.","27.In its bulletin no. 8\/2013 published on 9 December 2013, which replaced the previous practice guidelines of 2007, the Ministry of Health described the procedure for providers of health-care services when discharging newborns into their own social environment. It stated that the recommendation of specialists was that a newborn should be discharged from the maternity hospital no sooner than seventy-two hours after birth. The new procedure allows for the discharge of the newborn from the maternity hospital less than seventy-two hours after the birth at the request of the newborn\u2019s legal representative, provided that the latter:","\u201c(a) has submitted a written withdrawal of his or her agreement to the provision of medical services to the newborn, or a written statement declaring his or her disagreement with the provision of the medical services, or, alternatively, such agreement or disagreement has been entered in the newborn\u2019s medical documentation ...;","(b) has been demonstrably and duly informed about the possible consequences following the discharge of the newborn before seventy-two hours have elapsed since the birth ...;","(c) has been duly informed that \u2013 in the interests of the subsequent healthy development of the newborn \u2013 the Czech specialist medical associations recommend:","1. that a clinical examination be conducted within twenty-four hours of the discharge of the newborn ...;","2. that a blood sample be taken within forty-eight to seventy-two hours following the birth for the purposes of screening for hereditary metabolic malfunctions ...\u201d","B.Data on perinatal mortality","28.According to estimated data provided by the World Health Organisation for 2004, the Czech Republic was among the countries with the lowest perinatal mortality rate, which is defined as the number of stillbirths and deaths in the first week of life. The rate for the Czech Republic was 0.4%. In other European countries the figures ranged from 0.5% in Sweden and Italy to 4.7% in Azerbaijan. In most European countries the figures were below 1%. According to their 2006 report, perinatal mortality is an important indicator of maternal care and maternal health and nutrition; it also reflects the quality of available obstetric and paediatric care, comparing different countries. The report recommended that, if possible, all foetuses and infants weighing at least 500 g at birth, whether alive or dead, should be included in the statistics. The reported data regarding stillbirths were not adjusted to this effect in the study.","29.According to the European Perinatal Health Report on the health and care of pregnant women and babies in Europe in 2010, issued in 2013 within the framework of the activities of the Euro-Peristat Project, the Czech Republic was among the countries with the lowest mortality rate for newborns in the first twenty-seven days of their life. The rate was 0.17%. The data for other countries included in the report, mostly European Union member States, ranged from 0.12% for Iceland to 0.55% for Romania.","C.Criminal proceedings against midwives","30.It appears that no midwives have been prosecuted in the Czech Republic for attending home births per se. Several have been prosecuted, however, for alleged malpractice in connection with a delivery at home. The applicants referred to the cases of Ms \u0160. and Ms K., who are both well-known promoters of natural deliveries without any unnecessary medical intervention and who used to regularly conduct home deliveries.","31.On 27 March 2013 the Prague 6 District Court (obvodn\u00ed soud) found Ms \u0160. guilty of negligently causing the death of a baby who was stillborn. She was sentenced to two years\u2019 imprisonment, suspended for five years, and prohibited from practising the occupation of midwife for three years. The culpability of Ms \u0160. was based on the fact that she had not strongly advised the mother to contact a medical facility when consulted by telephone during a labour that was already ongoing at home. She had thus given flawed advice to the mother-to-be without actually examining her. The conviction was upheld on appeal by the Prague Municipal Court (m\u011bstsk\u00fd soud) on 29May 2013, although the sentence was changed to fifteen months\u2019 imprisonment, suspended for thirty months, and two years\u2019 prohibition on practising as a midwife.","32.On 29 April 2014 the Supreme Court (Nejvy\u0161\u0161\u00ed soud) quashed the judgments of the lower courts. Ms \u0160. was eventually acquitted by the District Court on 23 May 2016. It appears that the proceedings are currently pending before the appellate court.","33.On 21 September 2011 the Prague 3 District Court found Ms K. guilty of negligently causing bodily harm to a baby whose home birth she had attended and who had stopped breathing during the delivery. The baby died several days later. Ms K. was sentenced to two years\u2019 imprisonment, suspended for five years, prohibited from practising as a midwife for five years, and ordered to pay 2,700,000 Czech korunas (CZK) (equivalent to 105,000 euros (EUR)) by way of reimbursement of the costs incurred by the insurance company in treating the child until the latter\u2019s death. According to the court, the malpractice on the part of Ms K. consisted in the fact that she had not followed the standard procedures for deliveries as laid down by the Czech Medical Association (\u010cesk\u00e1 l\u00e9ka\u0159sk\u00e1 komora) and her conduct had thus been non lege artis. The criminal complaint was not lodged by the parents but by a hospital.","34.On 24 July 2013 the Constitutional Court quashed all the judgments in the case against Ms K., finding that there had been a violation of her right to a fair trial. It held that the conclusions of the ordinary courts as to MsK.\u2019s guilt had been too subjective and were not supported by the evidence beyond all reasonable doubt, thereby violating the principle of the presumption of innocence. It stated in particular that the courts had uncritically relied on an expert opinion which they had failed to subject to thorough scrutiny. It held that \u2013 on the basis of the expert opinion \u2013 the courts had applied very strict liability to the conduct of Ms K. in a situation where it had not been clear how she could have prevented the baby\u2019s death. Moreover, it had been established that she had tried to help the baby and had called an ambulance immediately after establishing that the baby had hypoxia. To foresee every possible complication during delivery and be able to react to it immediately, as was required of Ms K., would ultimately lead de facto to an absolute prohibition of home births. In that context the Constitutional Court noted:","\u201c... a modern democratic State founded on the rule of law is based on the protection of individual and inalienable freedoms, the delimitation of which closely relates to human dignity. That freedom, which includes freedom in personal activities, is accompanied by a certain degree of acceptable risk. The right of parents to a free choice of the place and mode of delivery is limited only by the interest in the safe delivery and health of the child; that interest cannot, however, be interpreted as an unambiguous preference for deliveries in hospital.\u201d","A.Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine)","62.The relevant provisions of the Convention on Human Rights and Biomedicine read as follows:","Article 5 - General rule","\u201cAn intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.","This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.","The person concerned may freely withdraw consent at any time.\u201d","Article 6 - Protection of persons not able to consent","\u201c... an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.","Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. ...\u201d","Article 8 - Emergency situation","\u201cWhen because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.\u201d","63.Moreover, the explanatory report on the Convention on Human Rights and Biomedicine states in paragraph 34 that \u201cthe word \u2018intervention\u2019 is understood in its widest sense, as in Article 4 \u2013 that is to say, it covers all medical acts, in particular interventions performed for the purpose of preventive care, diagnosis, treatment, rehabilitation or research\u201d.","B.Convention on the Rights of the Child","64.The relevant provisions of the Convention on the Rights of the Child read as follows:","Article 3","\u201c1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.","2.States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. ...\u201d","Article 5","\u201cStates Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.\u201d","Article 6","\u201c1.States Parties recognise that every child has the inherent right to life.","2.States Parties shall ensure to the maximum extent possible the survival and development of the child.","...\u201d","Article 18","\u201c1.States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. ...\u201d","Article 24","\u201c1.States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.","2.States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:","(a)To diminish infant and child mortality;","...","(d)To ensure appropriate pre-natal and post-natal health care for mothers; ...\u201d","C.Convention on the Elimination of All Forms of Discrimination against Women","65.The Committee on the Elimination of Discrimination against Women recommended in its Concluding Observations on the Czech Republic of 22 October 2010 (CEDAW\/C\/CZE\/CO\/5), under the heading \u201cHealth\u201d in particular:","\u201c36.While acknowledging the need to ensure maximum safety for mothers and newborns during childbirth, as well as the State party\u2019s low perinatal mortality rate, the Committee takes note of reports of interference with women\u2019s reproductive health choices in hospitals, including the routine application of medical interventions, reportedly often without the woman\u2019s free, prior and informed consent or any medical indication, a rapid increase in the caesarean section rate, separation of newborns from their mothers for up to several hours without health-related reasons, refusal to release the mother and child from hospital before 72 hours after childbirth, and patronizing attitudes of doctors which impede the exercise by mothers of their freedom of choice. It also notes reports about women\u2019s limited options for delivering their babies outside hospitals.","37.The Committee recommends that the State party consider accelerating the adoption of a law on patients\u2019 rights, including women\u2019s reproductive rights; adopt a protocol of normal birth care ensuring respect for patients\u2019 rights and avoiding unnecessary medical interventions; ensure that all interventions are performed only with the woman\u2019s free, prior and informed consent; monitor the quality of care in maternity hospitals; provide mandatory training for all health professionals on patients\u2019 rights and related ethical standards; continue raising patients\u2019 awareness of their rights, including by disseminating information; and consider taking steps to make midwife-assisted childbirth outside hospitals a safe and affordable option for women.\u201d","66.In its Concluding Observations on the Czech Republic of 14 March 2016 (CEDAW\/C\/CZE\/CO\/6), the Committee recommended the following:","\u201c4.The Committee welcomes the progress achieved since the consideration in 2010 of the State party\u2019s fifth periodic report (CEDAW\/C\/CZE\/CO\/5) in undertaking legislative reforms, including the adoption of:","(a)The adoption of the Act No. 372\/2011 Coll., on health services and the terms and conditions for the providing of such services (The Act on Healthcare Services), as amended by Act No. 167\/2012 Coll.; ...","...","30.The Committee welcomes the low rates of perinatal mortality in the State party. However, it is concerned about continued reports on the conditions for childbirth and obstetric services in the State party unduly curtailing women\u2019s reproductive health choices, including:","(a)Unnecessary separation of newborns from their mothers without medical grounds;","(b)Disproportionate limitations on home childbirths;","(c)Frequent use of episiotomy without medical need and in contravention of the mother\u2019s preference to abstain from them; and","(d)Undue restrictions on the use of midwives in lieu of physicians\/gynecologists in situations where such use does not pose a health risk.","31.The Committee reiterates its previous recommendation that the State party accelerate the adoption of a law on patients\u2019 rights, including women\u2019s reproductive rights. In doing so, the State party should:","(a)Adopt clear guidelines for ensuring that the separation of newborns from their mothers is subject to the requirement of medical necessity;","(b)Establish a prenatal care system that allows for the effective assessment of the suitability of home childbirths and the option for it where appropriate;","(c)In light of its recent adoption of Act No. 372\/2011 Coll., on health services and the terms and conditions for the providing of such services, ensure its effective implementation in compliance with the Convention, including by: Adopting and enforcing a protocol of normal birth care ensuring respect for patients\u2019 rights and avoiding unnecessary medical interventions; and ensuring that all interventions are performed only with the woman\u2019s free, prior and informed consent; monitoring the quality of care in maternity hospitals; providing mandatory training for all health professionals on patients\u2019 rights and related ethical standards; continue raising patients\u2019 awareness of their rights, including by disseminating information; and","(d)Undertake measures, including legislation, to make midwife-assisted childbirth outside hospitals a safe and affordable option for women.\u201d"],"8":["6.The facts of the case, as submitted by the parties, may be summarised as follows.","A.The applicant\u2019s exclusion from Russia","7.The applicant was born in 1984 and moved to live in Russia in the early 2000s.","8.In 2008 she met A.U., a Russian national, and they started living together in the Krasnodar Region. In 2009 the applicant\u2019s daughter from a previous marriage moved in with them to attend a primary school. On 16March 2012 the applicant and A.U. married and on 23August 2012 their son was born. He acquired Russian nationality.","9.On 30 March 2013 the applicant was returning home by train after a visit to Ukraine, together with the two children. Shortly after midnight on 31 March 2013 the Russian Border Control Service handed her a notice, informing her that she would not be allowed to re-enter Russia, in accordance with the Entry and Exit Procedures Act. The notice did not specify the grounds for that decision.","10.In April 2013 the applicant\u2019s husband obtained a copy of a decision pronouncing her presence in Russia to be undesirable (\u201cthe exclusion order\u201d), which the Consumer Protection Authority (CPA) had issued on 9June 2012. The text of the order indicated that the applicant\u2019s presence in Russia had been declared undesirable by the Krasnodar regional division of the CPA on 9June 2012, in accordance with section 25.10 of the Entry and Exit Procedures Act. It did not state any facts or reasons for the applicant\u2019s exclusion. It directed the applicant to leave Russia by 22 June 2012 or face deportation and informed her that she would be denied re-entry to Russia, in accordance with section 27 of the Entry and Exit Procedures Act. It subsequently transpired that the basis for the exclusion order was that during her pregnancy in 2012 the applicant had tested positive for HIV and that the hospital had reported her HIV-positive status to the CPA.","11.According to the Government, the Krasnodar division of the CPA sent the exclusion order to the applicant by registered mail on 19 June 2012. They produced a log of registered correspondence which was to be submitted to the post office for dispatch on that date.","12.The applicant\u2019s husband, acting as the claimant and also as the applicant\u2019s representative, challenged the exclusion order before the Russian courts, claiming in particular that the CPA had disregarded the applicant\u2019s family connections in Russia and her state of health.","13.On 24 May 2013 the Tsentralnyy District Court in Sochi rejected the claim in summary fashion, repeating verbatim the text of the exclusion order and holding that it was lawful. On 23 July 2013 the Krasnodar Regional Court upheld the District Court\u2019s judgment, finding that the applicant\u2019s infection with HIV \u201ccreated a real threat to the Russian population\u201d.","14.In the statement of appeal to the cassation instance, the applicant\u2019s husband prayed in aid the position of the Russian Constitutional Court which emphasised the necessity to take humanitarian considerations into account when deciding on the removal of a family member, and on the Court\u2019s case\u2011law under Article 8 of the Convention. He pointed out that the applicant\u2019s husband and newborn son were Russian nationals, that her daughter was enrolled in a Russian school and that the HIV infection was in a latent stage. On 30September and 19 December 2013 the Krasnodar Regional Court and the Supreme Court of Russia respectively issued summary decisions, dismissing the application for an examination of the case by the cassation instance.","15.The applicant and her daughter eventually took up residence in Novogrodovka in the Donetsk Region of Ukraine. Her husband and their son have been living in St Petersburg, Russia. The husband was unable to visit her in the Donetsk Region.","B.Developments subsequent to the communication of the case","16.On 12 March 2015 the Constitutional Court ruled on a constitutional challenge brought by the applicant and two other aliens and their Russian spouses against section 11(2) of the HIV Prevention Act, section 7(1)(13) of the Foreign Nationals Act, and section 25.10 of the Entry and Exit Procedures Act. The Constitutional Court held that migration laws can lawfully restrict access to Russia by non-Russian nationals whose medical condition might jeopardise public health and pose a threat to national security. It acknowledged the contemporary medical consensus that HIV did not pose a threat to public health because it could not be transmitted merely because of the presence of an infected individual in the country or through casual contact, airborne particles, food or water. The Constitutional Court held as follows:","\u201c1.To declare that the closely related provisions of section 25.10 of the Entry and Exit Procedures Act, section 11(2) of the HIV Prevention Act, and section 7(1)(13) of the Foreign Nationals Act are incompatible with the Russian Constitution ... in so far as they allow [the executive authorities] to declare undesirable the presence of a foreign national or a stateless person whose family permanently resides in Russia, to issue a deportation order or an entry ban, to refuse him a residence permit or to cancel a previously issued residence permit solely because that person is HIV-positive, provided that the person has complied with the legal requirements on HIV-positive individuals relating to the prevention of spreading the infection, and provided that no other circumstances would call for such restrictions.","2.The federal legislator should \u2013 in the light of the requirements of the Russian Constitution and the position of the Constitutional Court, as expressed in the present judgment \u2013 introduce the necessary amendments into the existing corpus of laws which would clarify the grounds and the procedure for making decisions relating to the right of HIV-positive foreign nationals or stateless persons to stay and live in the Russian Federation.\u201d","Pending such amendments, the Constitutional Court directed that the executive and judicial authorities be guided by the position it had formulated in the judgment.","17.On 20 April 2015 the applicant\u2019s husband applied to the Tsentralnyy District Court in Sochi for a reconsideration of the District Court\u2019s judgment of 24May 2013 on account of the new case-law of the Constitutional Court. On 3 July 2015 the District Court dismissed his application. It found that, lacking the information that the applicant had been receiving antiretroviral therapy, she must be presumed to be a threat to others, including those with whom she had social and casual contact. The District Court also stated that she was not a law-abiding individual because she had given birth to a child in Russia after her presence there had been declared undesirable.","18.The applicant\u2019s husband appealed and on 22 October 2015 the Krasnodar Regional Court quashed the above judgment, finding that the District Court had not heeded the position of the Constitutional Court and had incorrectly shifted the burden of proof onto the applicant:","\u201cThe Krasnodar office of the Consumer Protection Authority did not produce any evidence of Ms Ustinova\u2019s conviction under Article 122 of the Criminal Code (Infection by HIV) and\/or under Article 6.1 of the Code of Administrative Offences (Concealing the source of HIV infection). Nor did it show that she had breached any obligation which the law imposes on HIV-positive individuals, for instance, by refusing to take antiretroviral therapy. No such information is available in the case file, whereas the court establishes that [the applicant and her husband] are both receiving medical treatment. It follows that the first-instance court\u2019s finding that MsUstinova\u2019s presence constitutes a threat to other Russian residents, including those with whom she has had social and casual contact, is erroneous and contradicts the Constitutional Court\u2019s judgment since the mere fact of HIV infection is not a ground for applying such important restrictions on her private life.\u201d","19.The Regional Court pronounced the exclusion order unlawful and directed the Krasnodar office of the Consumer Protection Authority to redress the effects of the violation.","20.In response to the Court\u2019s request for additional information of 12May 2016 (see paragraph 4 above), on 29 June 2016 the Government submitted that the applicant had crossed the Russian border on 17 August 2015. On 18 May 2016 the Federal Migration Service issued her a three\u2011year temporary residence permit. On 31 May 2016 the Consumer Protection Authority informed the Border Control Service about the annulment of the exclusion order. Lastly, the Government indicated that measures for removing her name from the list of persons who should be refused entry to Russia, \u201c[were] being taken\u201d.","21.The applicant replied that she had only been able to re-enter Russia by crossing the border between Ukraine and Belarus and by continuing from Belarus to Russia, as there are no controls on the Belarus-Russia border. As of 16 August 2016, she has not been notified that the exclusion order of 9June 2012 was formally rescinded and that the Border Control database was updated accordingly.","31.The Committee of Ministers\u2019 Recommendation Rec(2000)15 concerning security of residence of long-term migrants, adopted on 13September 2000, reads in particular as follows:","\u201c1.As regards the acquisition of a secure residence status for long-term immigrants","a.Each member state should recognise as a \u2018long-term immigrant\u2019 an alien who:","i.has resided lawfully and habitually for a period of at least five years and for a maximum of ten years on its territory otherwise than exclusively as a student throughout that period ...\u201d","32.The Parliamentary Assembly Recommendation 1504 (2001) on non\u2011expulsion of long-term immigrants provides:","\u201c1.Legal immigrants who, while retaining their original nationality, have settled in a host country which is a member of the Council of Europe, in order to live there for a long period of time, may, in accordance with the law in force, be expelled from that country for reasons of public order, and in particular after they have been convicted, or even simply accused, in criminal proceedings.","...","8.Those persons who were lawful residents in a country prior to establishment or restoration of the independence of that country should enjoy at least the same level of protection as long-term immigrants and, in particular, under no circumstances be expelled.\u201d"],"9":["5.The first applicant was born in 1969 and is serving a life sentence in Perekhrestivka in the Sumy region (oblast). The second applicant was born in 1967 and is serving a life sentence in Gorodyshche in the Rivne region.","A.Series of offences of which the applicants were convicted","6.According to the findings of the domestic courts, in early 2000 MrA.B. formed an armed gang which included the applicants, Mr Vladimir Zakshevskiy (the applicant in the case of Zakshevskiy v. Ukraine, no.7193\/04, \u00a7 11, 17 March 2016), Mr S.S., Mr I.K., Mr A.S. and two others. At the time the first applicant, A.B. and Mr Zakshevskiy were former police officers and S.S. was an active police officer.","7.The domestic courts subsequently convicted the applicants, MrZakshevskiy, I.K. and S.S. of various degrees of participation in attacks committed by the gang in four regions and also of the offence of participation in an armed gang (banditry). The attacks were initially investigated by the authorities as unrelated crimes committed by unidentified people.","8.The description of the attacks is set out in the Appendix as Episodes1-7.","9.On various dates criminal proceedings instituted in the four regions were eventually consolidated into the case initially opened to investigate a series of attacks in and around Kharkiv (Episodes 4-6).","B.Pre-trial investigation","1.The first applicant","10.According to the Government, on 29 October 2001 the first applicant was charged in absentia with participation in the Kharkiv attacks, which had been classified as robberies.","11.On 17 November 2001 the first applicant was arrested in Moscow, Russia. The next day the suspected gang leader A.B. was killed there while resisting arrest.","12.On 30 January 2002 the first applicant was extradited to Ukraine.","13.On 4 and 11 February 2002 the first applicant signed two documents explaining in detail his rights as a suspect or accused in the course of the pre-trial investigation, including the right to have a lawyer appointed for him, to consult a lawyer before being questioned for the first time and the right to remain silent. He waived those rights.","14.On 11 February 2002 the first applicant was questioned in the capacity of an accused, admitted his guilt on the charges of robbery, and confessed to a minor role in the Kharkiv attacks.","15.On 3 April 2002 the first applicant was questioned in the capacity of a witness, without a lawyer, about the Luhansk murder (see Episode 2 in the Appendix). He denied any involvement in that crime but stated that he had known A.B. since 1998 and that A.B. had confessed to him during their stay in Moscow that he had committed the Luhansk murder.","16.On 1 July 2002 the first applicant participated in a reconstruction of the attack on Mr and Mrs Va., one of the Kharkiv episodes. The first applicant stated that he and several accomplices had attacked Mrs Va. He also stated that A.S. had shot in Mr Va.\u2019s direction during the attack.","17.On 10 July 2002 the first applicant was charged with offences connected with the attacks set out in the Appendix, including several murders.","18.While being questioned on the same day the applicant retracted all his previous statements, claiming that they had been given under physical and psychological pressure.","19.On the same day, the investigator appointed a lawyer for the applicant after finding that he had to be represented because of the murder charges but could not hire a lawyer himself.","20.On 11 July 2002 the defence lawyer met the applicant.","2.The second applicant","21.In August and December 2000 the second applicant was questioned as a witness about the Luhansk murders and a killing in Donetsk. He denied any knowledge of or involvement in either crime but admitted that he knew A.B., had had a conflict with one of the victims, and that on the night of the Luhansk murder the second applicant had lent his lorry to the victims.","22.On 14 October 2001 the second applicant was arrested. On the same day he was questioned in the presence of a lawyer hired by his wife. He confessed to participation in the attacks on Mr and Mrs Va. and Mr A.I. and described the active role that the first applicant had played in them. In particular, he stated that the first applicant had taken A.S., armed with a handgun, to the place where Mr A.I. had been murdered (Episode 5).","23.On 7 November 2001 the second applicant was questioned in the presence of his lawyer about the circumstances of the Crimea attack (Episode 7) and participated in a reconstruction. He described his and MrZakshevskiy\u2019s role in the attack, stating that he had arrived at the scene of the crime on a motorcycle with Mr Zakshevskiy. The latter had approached the victims\u2019 car and then the second applicant had heard gunshots. The second applicant had then shot at the ground near the feet of Mr R.M., one of the victims, to scare him.","24.Subsequently, the second applicant also confessed to participation in in several other attacks. He retracted his confessions later in the investigation.","3.Pre-trial statements of co-defendants and other witnesses","25.On 11 November 2001 Mr Zakshevskiy surrendered himself to the police and provided statements to the effect that the second applicant and A.B. had told him in 2000 that they had committed the Donetsk murder and that he had also learned at the time that the first applicant and A.B. had committed the Luhansk murder. He also described the two attacks in Toretsk, the attacks on the shoe sellers near Kharkiv, and the Crimea attack (Episodes 3, 6 and 7). He repeated those statements the next day (see Zakshevskiy, cited above, \u00a7\u00a7 10 and 11). In particular, in describing the attack on the shoe sellers, he stated that the applicants had followed the victims in a car while MrZakshevskiy, I.K. and another member of the gang had waited in ambush in an Opel Vectra near the road. After being given a signal over the telephone, Mr Zakshevskiy and I.K., wearing traffic police uniforms, had stopped the cars of two groups of victims in quick succession, first a Gazel minivan and then a Mercedes. They had threatened the victims with handguns and taken their cars to a nearby forest. Afterwards, the applicants had arrived and loaded stolen shoes and money into their car.","26.On 12 and 13 October 2001 Mr G.G. made statements to the investigating authorities in the presence of a lawyer, implicating the applicants in the Kharkiv attacks.","27.On 28 March, 23 April and 10 July 2002 S.S. was questioned in the presence of his lawyer. He stated that he had been present at the scene of the Luhansk murder in a red BMW and had observed A.B. and the first applicant commit that crime. He also stated that he had helped A.B. and the latter\u2019s \u201cacquaintance\u201d to bring two handguns back from the Crimea.","28.Arrested in Belarus in December 2001, I.K. was extradited to Ukraine. On 20 March 2002 he, while denying any active role in the crimes, stated in the presence of his lawyer that he had seen A.B. and the first applicant commit the Luhansk murder and witnessed the applicants participate in the attack on the shoe sellers near Kharkiv.","29.At a later stage of the pre-trial investigation the applicants\u2019 co\u2011defendants retracted their statements, saying they had been given under physical and psychological duress.","30.In the course of the pre-trial investigation a number of victims and other witnesses made statements subsequently used in the applicants\u2019 conviction. There was no possibility for the applicants to put questions to those victims and witnesses at that stage or later. The substance of their statements, as given in the trial court\u2019s judgment, is set out in the Appendix.","C.Trial","31.The applicants and their co-defendants Mr Zakshevskiy, S.S. andI.K. stood trial at the Donetsk Regional Court of Appeal, acting as a trial court (\u201cthe trial court\u201d).","32.On 14 February 2005 the trial court noted that a number of victims and other witnesses had failed to appear and ordered the police to bring Mrand Mrs Va., Mr V.K. and Mr R.K., and R.M. (Episodes 4, 6 and 7 respectively) to court. On 17 March 2005 the trial court ordered the police to bring Mr G.S. and Mr N.K., witnesses to the Luhansk murder, to court on 6April 2005.","33.On 6 April 2005 N.K. appeared. However, the hearing had to be adjourned because one of the judges was ill. The presiding judge asked whether the witness would appear at the next hearing. He replied that he wished to confirm the statements he had given in the course of the pre-trial investigation, and that the only point he might be confused about was the make of the foreign car he had seen on the night of the murder, since he was not a specialist. He asked not to be called again, citing his extreme poverty and the long distance to the court.","34.At a subsequent hearing the court read out reports from the police that V.K., R.K. and R.M. could not be brought to the court because they were not present at the addresses they had given and could not be found. The court also read out the death certificate of G.S. and statements by N.K., O.Va. and S.Va. that they were unable to attend.","35.The court then sought the parties\u2019 opinions as to whether it would be justifiable to declare that it was not possible to obtain the appearance of those witnesses at the trial and to read out their statements. The applicants\u2019 lawyers did not object although the defendants insisted that the witnesses be questioned.","36.The court ruled that it considered that it was not possible to have the witnesses attend the trial and proceeded to read out their pre-trial statements.","D.Trial court\u2019s judgment","37.On 6 October 2005 the trial court delivered its judgment. It convicted the applicants of banditry, armed robbery and related offences of carjacking, aggravated murder and attempted aggravated murder. It acquitted the applicants of several counts of robbery for lack of proof. It sentenced them to various terms of imprisonment on the charges other than murder. In respect of the murder charges the sentence was life imprisonment, which was also the final sentence for both applicants.","38.The specific crimes of which the applicants were convicted and the key evidence relied on for those convictions is set out in the Appendix.","39.Ten pages of the judgment were dedicated to whether the defendants\u2019 pre-trial statements could be used in evidence even though they had been retracted. In concluding that they could be used, the trial court referred in particular to corroborating evidence, including expert reports and physical evidence on the firearms used in the crimes (see Appendix).","40.A further four pages of the judgment were dedicated to a discussion of whether the defendants\u2019 pre-trial statements had been coerced. In rejecting that allegation, the court stated in particular that: (i) the second applicant\u2019s statements had been made in the presence of a lawyer hired by his wife; (ii) the defendants had changed their statements over the course of the investigation to minimise their own role in the crimes and their culpability, which was inconsistent with their allegation that their statements had been forced on them by the authorities; (iii) a video recording of the second applicant\u2019s interview and of a reconstruction of the crime with him and Mr Zakshevskiy had shown that his statements had been given freely; (iv) two investigations of the defendants\u2019 allegations of undue pressure and ill-treatment conducted by the prosecutor\u2019s office at the trial court\u2019s request had found no proof in support of the allegations, which was consistent with the court\u2019s own conclusions.","41.In response to the applicants\u2019 allegations of various procedural irregularities, in particular alleged violations of their right to defence, in the course of the pre-trial investigation, the trial court stated that all evidence obtained in violation of the Code of Criminal Procedure had been excluded from the file and the remaining evidence had been obtained in compliance with the Code.","E.Preparation for appeal and appeal proceedings","42.Upon completion of the trial the first applicant began studying the case file. On 12 May 2006 he signed a statement that he had examined the record of the trial in full. Afterwards, he examined the case file on at least five days up to 2 August 2006.","43.On various dates the applicants lodged appeals and supplementary appeals against their conviction, arguing in particular that the trial court had convicted them without sufficient proof, and based on pre-trial statements given under duress rather than on their testimony in court. They also alleged that their defence rights had been breached in various ways.","44.In his appeal the first applicant submitted, in particular, that the witnesses G.S. and N.K. had in the course of the pre-trial investigation identified, based on photographs, A.B. as the person they had seen standing on the road at the scene of the Luhansk murder dressed as a traffic police officer. He also submitted that Mr and Mrs Va. had given descriptions of the attackers in their pre-trial statements which had not fitted him.","45.The second applicant submitted, in particular, that in the course of his pre-trial interviews R.M. had stated that he clearly remembered the attackers, would be able to recognise them by their faces and voices and had provided a description which had enabled an identikit picture to be prepared. However, that picture, in the second applicant\u2019s opinion, had not looked like him.","46.On 19 October 2006 the Supreme Court dismissed the applicants\u2019 arguments as unsubstantiated and upheld their conviction and sentence. It stated, in particular, that the trial court findings that the applicant were guilty were supported by various evidence, in particular the statements of witnesses G.S. and N.K., Mr and Mrs Va. and R.M."],"10":["1. The first applicant, Mr J.M.N., is a Swedish national born in 1973. The second applicant, Ms C.H., is a Norwegian national born in 1976. The applicants live in Moelv. They were represented before the Court by Mr A. Westeng, a lawyer practising in Oslo.","A. The circumstances of the case","2. The facts of the case, as submitted by the applicants, may be summarised as follows.","3. The applicants have a son, X, born in August 2013. In 2006, the second applicant had a son, Y, with another man. The second applicant suffers from paranoid schizophrenia, a chronic mental illness requiring medication. X had a difficult birth with birth asphyxia and possible withdrawal symptoms from the second applicant \u2019 s medication, which she had taken during pregnancy. Six days after X was born, Ringsaker Child Care Protection Services ( barneverntjenesten ) decided to take him into public care on an emergency basis because of the second applicant \u2019 s poor mental health and the first applicant \u2019 s inability to understand that this could be hazardous for X.","4. The applicants \u2019 appeal was rejected on 5 September 2013 by Oppland and Hedmark County Social Affairs Board ( fylkesnemnda for barnevern og sosiale saker, henceforth \u201cthe Board\u201d). The applicants were at the same time granted contact rights for two hours once per week with X. The applicants did not appeal against the Board \u2019 s decision.","5. On 10 October 2013 the Child Care Protection Services requested the Board to take X and Y into permanent public care, place them in foster homes and regulate the contact rights with the applicants. The applicants opposed the measures.","6. On 4 March 2014, the Board decided to take X and Y into permanent public care and place them in foster homes. Y was placed with his maternal grandmother, with whom he had already lived since he was a baby. X was placed in another foster home. The applicants were granted contact rights with X for two hours, three times per year, with a foster parent present if needed. The second applicant was granted more substantial contact rights with Y, including overnight visits. An oral hearing was held for two days and 12 witnesses were heard. Moreover, the Board took into consideration a report issued by an expert, psychologist M.H., who had observed the applicants during several visits with X. The report concluded that the applicants failed to provide X with personal contact and security and that there were flaws in the emotional and child development care.","7. The applicants appealed against the permanent public care order and the decision on contact rights only regarding X.","8. On 24 June 2014, the Board \u2019 s decision was confirmed by Hedmarken City Court ( tingrett ), after a two-day oral hearing where 12 witnesses and the expert M.H. were heard. The court was composed of one judge and two expert lay judges. The court found that the applicants were able adequately to take care of X \u2019 s basic daily needs. However, as a vulnerable child, X had a special need for contact and emotional interaction. Regarding the second applicant, the court took into consideration the report by M.H. where it was noted, inter alia, that she was strongly affected by negative psychosis symptoms such as passivity and social withdrawal. She was emotionally numb, with heavily reduced function levels. As to the first applicant, M.H. had found that he was not able to compensate for the first applicant \u2019 s deficiencies. Although he could take care of X \u2019 s material needs, he was unable to fulfil X \u2019 s need for contact and interaction. In view of this, the court concluded that the public care of X could not be terminated.","9. One of the expert lay judges dissented and expressed the view that the first applicant was able to compensate for the second applicant \u2019 s deficiencies, at least if support measures were put in place by the authorities.","10. On 10 April 2015, Eidsivating High Court ( lagmannsrett ) unanimously rejected the applicants \u2019 appeal against the lower court \u2019 s judgment concerning the permanent public care order. The appellate court consisted of three judges and two expert lay judges. Although the applicants did not appeal against the judgment in so far as it concerned the contact rights, the appellate court considered the matter on its own initiative. An oral hearing was held for three days. The parties and 14 witnesses were heard. With regard to X, he was considered by the appellate court to be a healthy and normal child but, due to his infant trauma, still vulnerable. Moreover, it noted that the second applicant had a chronic mental illness. The court relied on the same expert, M.H., as the City Court. M.H. had observed visits between the applicants and X on several occasions and had issued a new report, dated 23 February 2015, where, inter alia, the following was noted:","\u201c[The second applicant] has, during the visits I have observed, occasionally been more active with [X] than during the visits I observed in 2013. But her demeanour during the visits is, as during earlier visits, with some exception, characterised by her subdued ( avdempet ), detached ( f\u00f8lelseflat ) and quiet ( stille ) behaviour. There are long pauses where it is completely silent in the room.\u201d","As to the first applicant, the report by M.H. noted, inter alia, the following:","\u201c[He] was very passive during both visits. He followed [X] around the room while [X] explored the various games, and sat down on the floor when [X] did. However, he sat down behind [X] so that there was no face-to-face contact between them ... He smiled at [X] but did not take the initiative to interact or answer or develop the various initiatives X took for interaction during play. The visits were characterised by [the first applicant] quietly observing X \u2019 s play and the [second applicant \u2019 s] and [X \u2019 s] play. When [the second applicant] during the last part of the visits became more passive, [the first applicant] did not take over, but remained passive and quiet.\u201d","The report concluded that neither parent was able to meet X \u2019 s need for contact and interaction. Even though the first applicant was considered to possess more parental ability, he was still not found able to compensate for the second applicant \u2019 s lack of such ability, in particular as he lacked in his ability for sensitive care ( sensitiv omsorg ). It was furthermore concluded by M.H. that neither parent saw, understood or responded to X \u2019 s signals. The first applicant still lacked an understanding of the second applicant \u2019 s mental illness and how it affected her capacity to care for the child.","11. The appellate court found that the expert M.H. \u2019 s observations were confirmed by the court \u2019 s own observations during the oral hearing. It further considered that support measures would not be sufficient because of the applicants \u2019 lack of interest in such measures and lack of understanding of their deficiencies. Moreover, X had settled well in his foster home and developed positively. Thus, it was in X \u2019 s best interest that the permanent public care order be granted.","12. The applicants appealed to the Supreme Court ( H\u00f8yesterett ), submitting that the permanent public care order should not be granted. They did not complain about the contact rights.","13. On 23 June 2015, the Supreme Court refused leave to appeal.","B. Relevant domestic law","14. According to Section 4-8(2) of the 1992 Child Welfare Act ( lov om barneverntjenester ), a newborn child may be taken into public care if it is highly probable that a move to the parents would lead to such a situation or risk to the child as mentioned in Section 4-12.","15. Section 4-12(a), of the Act stipulates that a child may be taken into public care if there are serious deficiencies in the daily care of the child or in relation to the personal contact and security the child needs, depending on his or her age and development.","16. According to Section 4-21(2) of the Act, the parties may request the County Social Affairs Board to terminate the public care as long as at least 12 months have passed since the Board or the courts last considered the matter.","17. Contact rights between a child in public care and his or her parents are regulated in Section 4-19 of the Act which stipulates that the extent of the contact rights is decided by the County Social Affairs Board. The private parties can demand that the matter be reconsidered by the Board as long as at least 12 months have passed since the Board or the courts last considered it (Section 4-19(5)).","C. Relevant international law","18. Article 3 of the Convention on the Rights of the Child, in so far as relevant, reads as follows :","\u201c1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.","2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. \u201c"],"11":["5.The applicant, who was born in 1952, is a farmer and the head of a farming company, A. He lives in Borzna.","6.In the winter of 2001, S.Sh., the newly-appointed head of a private agricultural company, D., requested that the law-enforcement authorities investigate the suspected misappropriation of D.\u2019s property. In particular, S.Sh. stated that in the autumn of 2000, K., another agricultural company, had written off a debt of 15,517 Ukrainian hryvnyas (UAH) owed to his company, although the latter had not received any payment.","7.On 17 and 21 March 2001 the applicant, interviewed in connection with the inquiry into the case, informed the police that in the autumn of 2000 he had received twenty concrete slabs from K. in settlement of a debt to D., of which he was a shareholder. The applicant said he had used the slabs to construct a trench for A., to which D. had also owed money. D.\u2019s former director had been aware of that fact. The transaction had not been finalised on the books as there had been disagreements between the parties over the price of the slabs and on various procedural issues.","8.On 3 May 2001 the Borznyanskiy district prosecutor (the \u201cdistrict prosecutor\u201d) instituted criminal proceedings against the applicant on suspicion of fraudulently appropriating slabs that he had received on D.\u2019s behalf.","9.On 6 June 2001 a police investigator called the applicant in for questioning as a witness in connection with the case, but rejected his request to be assisted by a lawyer during the questioning. According to the applicant, his lawyer had accompanied him to the investigator\u2019s office but had not been allowed to be present during the questioning.","10.In the course of the questioning the applicant again admitted to receiving the slabs and using them on his farm. He also explained that the transaction had not been finalised in the accounts because the parties had had debts to each other and had still been negotiating over how to write those debts off. In any event, the directors of K. and D. had been well aware that the applicant had used the slabs on his own farm and had never objected to that use. As can be seen from the copy of the record of the questioning submitted to the Court, it was apparently filed as pages 82 and83 in the domestic case file.","11.On 5 July 2001 the applicant was officially indicted for the fraudulent appropriation of twenty concrete slabs transferred by the K.company to the D. company in payment of a debt. On the same date, the applicant was questioned as a defendant in the presence of his lawyer but he refused to testify and relied on his right to silence.","12.On 11 July 2001 the applicant was informed of the completion of the pre-trial investigation and committed to stand trial in the Borznyanskiy District Court (\u201cthe District Court\u201d).","13.On an unspecified date the applicant presented the authorities with an agreement dated 14 April 2001 and signed by the directors of K., D. and himself. According to that document, the three parties had agreed that the value of the twenty slabs received by the applicant was UAH2,000 and that the transfer of the slabs to the applicant covered the relevant portion of K.\u2019s debt to D. and D.\u2019s debt to the applicant\u2019s farm.","14.By September 2001 the above agreement had been reflected in all three parties\u2019 documents relating to accounting, tax and other matters.","15.In the course of the trial, the District Court questioned the applicant and numerous other individuals, including the directors and accountants of D. and K., and examined various documents. As can be seen in the minutes of the court hearings submitted by the Government, the documents examined in the course of the trial included \u201ca letter from the farming company\u201d, included as page65 in the domestic case file.","16.During the trial, the applicant, represented by a lawyer of his own choice, reiterated that he had had no fraudulent intent in taking possession of the slabs and that the three parties had decided on all the details of the transaction in April2001 (that is, before the criminal proceedings had been instituted against him). The transaction had also been properly accounted for in all the paperwork by September2001 (that is, before the trial had commenced). The delay in finalising the papers had been due to various objective circumstances, including initial disagreements between the parties concerning the scope of the transaction and a fair price for the slabs, the replacement of D.\u2019s director in November 2000, and a lengthy break in the functioning of D.\u2019s accounts office.","17.On 13 August 2003 the District Court found the applicant guilty of the charges. It found that although the case had eventually been settled, there was sufficient evidence that the applicant\u2019s initial intent had been fraudulent. In justifying that finding, the court noted, in particular, as follows:","\u201cAs regards the arguments by the defendant LobodaG.I. that ... the three-party agreement had been concluded ... before the initiation of the criminal case, and that the managers of the three entities had agreed on the price and procedure for the transfer of the concrete slabs, the court cannot accept them, as they contradict the case file materials and the evidence examined in court. It appears from the case file materials that the above-mentioned agreement was submitted by LobodaG.I. at the end of the pre-trial investigation. It can be seen from the testimony of the witnesses ... that [K.\u2019s debt to D.], amounting to UAH15,517, had been reinstated after having been written off ... According to ... order no.6 of August2001 the slabs transferred were valued at UAH2,000 and [K.\u2019s] debt to D. as of 1September2001 remained at UAH 13,517.","The aforementioned evidence shows that an understanding between the managers of [K.], [D.] and [A.] concerning the price and procedure for the transfer was reached after the criminal case had been instituted, in the course of the pre-trial investigation. These findings correspond to the declarations by the head of the farming company Loboda G.I. contained on pages65 and67 of volume1 of the case, dated June2001\u201d.","18.The District Court then granted the applicant an amnesty and released him from any punishment.","19.On the same date the court issued a separate ruling (\u043e\u043a\u0440\u0435\u043c\u0430 \u043f\u043e\u0441\u0442\u0430\u043d\u043e\u0432\u0430) in which it drew the attention of the district prosecutor to various procedural shortcomings in the preparation of the case for trial. It noted, in particular, as follows:","\u201cOn 3 May 2001 the [district prosecutor] initiated criminal proceedings against [the applicant]. On 6 June 2001 the [police investigator] ... questioned [the applicant] as a witness, despite ... sufficient evidence ... for him to be questioned as a defendant, in compliance with all the requirements of the Code of Criminal Procedure of Ukraine ...","With regard to the said breaches, the testimony [of the applicant] given ... during his questioning as a witness on 6June2001 was not taken into account by the court as evidence in the present case ....\u201d","20.It appears from the case-file materials that on an unspecified date the applicant filed an appeal against his conviction, which was accepted for examination. No copy of this appeal has been provided to the Court.","21.On 27 August 2003 lawyer I. also filed a separate appeal in the applicant\u2019s interests. In this appeal he challenged, primarily, the substantive conclusions of the trial court and contended that the applicant\u2019s actions had not been criminal.","22.On 23 October 2003 the Chernigiv Regional Court of Appeal (\u201cthe Court of Appeal\u201d) upheld the applicant\u2019s conviction. Referring to statements by various witnesses and the documentary evidence on file, it concluded that the applicant had not made any reasonable and meaningful efforts to regularise his appropriation of the slabs until the criminal proceedings had been instituted.","23.The applicant lodged a cassation appeal, in which he complained, in particular, that his right to mount a defence had been breached on account of his being questioned without a lawyer on 6 June 2001. He argued that it was clear from the phrase, \u201cThese findings correspond to the declarations by the head of the farming company Loboda G.I. contained on pages 65 and67 of volume1 of the case, dated June 2001\u201d in the District Court\u2019s judgment of 13August2003, that the testimony he had given on 6June 2001 had in fact been relied on for his conviction, in spite of the District Court\u2019s formal decision to exclude the record of that questioning from the case file.","24.On 28 October 2004 the Supreme Court of Ukraine examined submissions by the applicant, in the absence of both the applicant and his lawyer. However, the prosecutor was present and advised the Panel to reject the applicant\u2019s arguments.","25.On the same date the Supreme Court rejected the applicant\u2019s cassation appeal, finding that the lower courts had correctly assessed the facts and applied the law. Without addressing directly the applicant\u2019s complaint concerning the breach of his right to defence, it made the following general remark concerning the procedural fairness of the proceedings:","\u201c... no breaches of the provisions of the criminal-procedure law in the course of pre-trial investigation as well as during the court proceedings can be identified\u201d.","26.A copy of the Supreme Court\u2019s ruling of 28 October 2004 was sent to the applicant by post on 29 August 2005 and, according to him, was received on 29 September 2005.","27.At various times the applicant made unsuccessful attempts to institute criminal proceedings against the investigator who had questioned him on 6 June 2001, and to begin administrative and civil proceedings to challenge various purported procedural omissions on the part of the District Court judge in his case."],"12":["5.The applicants in this case are Natalya Sergeyevna Ponyayeva, who was born on 7 July 1978, and her two daughters, Svetlana Aleksandrovna Oleneva, born on 18 March 2006, and Anastasiya Aleksandrovna Oleneva, born on 11 July 2000. The applicants live in Moscow.","A.Transactions in respect of the flat later purchased by the first applicant","6.Prior to its privatisation, the flat at 83-3-4 Ulitsa Svobody, Moscow, had been owned by the City of Moscow. Ol. had resided there as a tenant under the social housing agreement with the City.","7.On 13August 2003 Ol. was tried for having made a fake terror threat. He was relieved from criminal liability and committed to a psychiatric institution for treatment.","8.On 3February 2004, when Ol. was still undergoing inpatient treatment, an unidentified person applied for a new passport on his behalf and asked notary B. to issue two powers of attorney authorising several persons to carry out transactions on Ol.\u2019s behalf in respect of the flat.","9.On 9 March 2004 the Department of Housing of the City of Moscow (the \u201cHousing Department\u201d) transferred the title to the flat to Ol. under a privatisation scheme. The privatisation agreement on behalf of Ol. was signed by a person acting by virtue of the power of attorney of 3February 2004 and subsequently registered by the Moscow City Department of the Federal Registration Service (the \u201cRegistration Service\u201d).","10.On 1 April 2004 B. and K. bought the flat from Ol. On 13April 2004 the Registration Service registered the transaction and issued the relevant deed confirming B. and K.\u2019s title to the flat.","11.On 12 January 2005 the Tushinskiy District Court of Moscow granted a claim lodged by B. against Ol. In particular, the court found that the latter had forfeited the right to reside in the flat and annulled his residence registration.","12.On 10 March 2006 B. and K. sold the flat to the first applicant. The Registration Service registered the transaction and issued the relevant deed confirming the applicant\u2019s title to the flat.","B.Annulment of the first applicant\u2019s title to the flat and eviction proceedings","13.On 31 January 2006 the prosecutor\u2019s office received a complaint from N., an acquaintance of Ol., in which she alleged that the latter had been fraudulently deprived of the flat. On 14 March 2006 the district department of the interior opened a criminal investigation into the matter. According to the Government, the investigation is pending to date.","14.On 14May 2008 the inter-district prosecutor brought a civil claim on behalf of Ol. and the Housing Department behalf seeking invalidation of the privatisation and subsequent transactions in respect of the flat.","15.On 2 July 2010 the District Court granted the prosecutor\u2019s claim. In particular, it established that Ol.\u2019s signatures on the power of attorney authorising third parties to act on his behalf in respect of the flat and his signature on other related documents had been forged. The court conceded that the first applicant was a bona fide purchaser of the flat. However, it ruled that the case fell under one of the two exceptions to the protection of a bona fide purchaser\u2019s title, which required that precedence be given to the previous owner, in this case the City of Moscow. In this connection, the court reasoned that Ol.\u2019s rights could be adequately protected only by means of restoring the City of Moscow\u2019s ownership in respect of the flat. The first applicant\u2019s title to the flat was annulled and the ownership was transferred to the City of Moscow. The court further recognised Ol.\u2019s right to reside in the flat and ordered the applicants\u2019 eviction. The applicants appealed.","16.On 6 April 2011 the Moscow City Court upheld the judgment of 2July 2010, in substance, on appeal.","17.According to the Government, the title to the flat was not transferred to the City of Moscow and the applicants continued to reside in the flat."],"13":["5.The applicant was born in 1953 and lives in Vienna.","6.M.K., the applicant\u2019s son born in 1981, was taken to the Otto Wagner Hospital on 19 March 2010 suffering from an acute episode of paranoid schizophrenia. The Otto Wagner Hospital is a public institution of the City of Vienna specialising in neurology, orthopaedics, psychiatry and pulmonology. It is situated on a vast area outside the city center in the west of the green-belt of Vienna, consisting of some 26 hospital buildings with annexes, a church, a museum, a theatre and a large park.","7.In a decision of 7 April 2010, the F\u00fcnfhaus District Court (Bezirksgericht) ordered M.K.\u2019s involuntary placement in the psychiatric unit of that hospital pursuant to section 8 of the Hospitalisation Act (Unterbringungsgesetz).","8.On 12 May 2010 M.K. failed to return from an authorised walk in the hospital grounds. He had escaped from the premises and died after jumping in front of a subway train.","9.Subsequently, in August 2010 the applicant brought a civil action in the Vienna Regional Civil Court (Landesgericht f\u00fcr Zivilrechtssachen) under the Official Liability Act (Amtshaftungsgesetz) against the City of Vienna (Stadt Wien) as the authority responsible for the hospital, seeking compensation of 20,000 euros (EUR) plus interest in respect of non\u2011pecuniary damage.","10.She stated that in 2006 and 2007 her son had already undergone inpatient treatment for paranoid schizophrenia at the Otto Wagner Hospital and the Vienna General Hospital (Allgemeines Krankenhaus Wien). Hospitalisation had been ordered on 19 March 2010 because M.K. had posed a danger both to himself and others. He had attacked a chewing gum dispenser with a sledgehammer and appeared to be utterly confused when the police arrived on the scene. The expert Dr P., who was called to assess M.K.\u2019s mental state, diagnosed him with paranoid schizophrenia. Because of M.K.\u2019s delusional behaviour, there was a risk that he would harm himself or others. The expert concluded that M.K.\u2019s mental state required him to be placed in a closed psychiatric institution.","11.However, on 25 and 29 March 2010 M.K. managed to escape from the closed ward of the Otto Wagner Hospital and was found and brought back only after a search conducted by the police and the hospital staff. On 12 May 2010 he escaped from the open ward to which he had been transferred in the meantime, and committed suicide by jumping in front of a subway train.","12.The applicant claimed that she had suffered a massive shock as a result of her son\u2019s death. Before his involuntary placement in the hospital, M.K. had lived with her in the same household and they had had a very close relationship. The applicant claimed that as a result of his death she had suffered from depression and insomnia and had been seeing a psychotherapist since June 2010. Nonetheless, her mental state had not improved since.","13.The fact that her son had been able to escape from the hospital premises led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties. Because M.K.\u2019s behaviour had been unpredictable, he should have been under strict supervision. In the circumstances, and especially because he had managed to escape twice before, restriction of his freedom of movement within a closed ward was proportionate, necessary and adequate. Furthermore, such restriction should have included a degree of supervision by the hospital staff. The contract for M.K.\u2019s treatment had included duties of protection and care. There had been signs of suicidal thoughts on the patient\u2019s part, and the hospital staff should therefore have prevented him from leaving the ward. However, the necessary diligence had not been exercised. For these reasons, the applicant claimed that the City of Vienna had been at fault and was therefore responsible for the non-pecuniary damage she sustained.","14.The City of Vienna asked the Vienna Regional Civil Court to dismiss the applicant\u2019s claim. It argued that M.K.\u2019s involuntary placement in the psychiatric institution on 19 March 2010 had been necessary as he had not been aware of his mental illness and had refused to be treated. At the time, he had been utterly confused and it had not been possible to reason with him. Because of the threat he posed to himself and others, he had repeatedly had his freedom of movement restricted whilst in hospital and had had to be medicated parenterally. On 25 March 2010 he had left the acute station without permission and went to his parents\u2019 place. When the police and the ambulance brought him back to the hospital, he had had to be sedated intravenously because of the highly psychotic state he was in. On 29March 2010, only four days later, he escaped again from the acute station, but was apprehended by the hospital\u2019s security staff on the premises of the hospital. However, from 2April 2010, M.K.\u2019s attitude changed and he became willing to take oral medication. From that day on, his freedom of movement was no longer restricted. He had appeared well-adjusted and friendly. In view of the progress in his treatment, and as he appeared more reasonable and able to abide by agreements, he had been transferred from the acute station to the subacute ward on 20 April 2010. However, he had then succumbed to so\u2011called \u201cdynamic exhaustion\u201d (dynamische Entleerung), which manifested itself in a noticeable loss of drive and the desire for a quiet environment. The hospital staff had therefore tried to animate M.K. through occupational therapy and recreational walks in the hospital grounds, which \u2212 on the basis of a well-documented medical order \u2212 he had been allowed to take on his own as of 21 April 2010. This medical order had taken into account the fact that M.K. had twice before escaped from his ward. Thereafter, however, M.K. had continued to receive treatment for over three weeks and there had been a considerable improvement in his condition. Moreover, he had been made aware that he was not allowed to leave the hospital premises and had to notify the staff before going out for a walk and again upon his return. He had also been permitted to leave the building to smoke a cigarette. The hospital had maintained detailed documentary records of his medical treatment and progress. There had been no indication of suicidal thoughts. However, on 12May 2010 at 5.15pm the doctor on duty was informed by the hospital staff that the applicant\u2019s son had not returned from an authorised walk in the hospital grounds and had apparently taken his personal clothing with him. A search operation had immediately been initiated on the premises and at the same time the police had been asked to search for him. At approximately 9pm the police informed the hospital that M.K. had been killed in a subway train accident at around 4pm.","15.The City of Vienna submitted that under the provisions of the Hospitalisation Act and in keeping with current practice in the treatment of mentally ill patients, \u201copen\u201d psychiatry was the norm and restriction of a patient\u2019s freedom of movement was permissible only in cases of absolute necessity and within the bounds of proportionality. In the present case, by 12 May 2010 restriction of the physical movement of the applicant\u2019s son (known as \u201cfixation\u201d), and\/or the spatial restriction of his movement to the confines of a psychiatric bed, or his permanent supervision, were no longer medically indicated, nor would such measures have been reasonable or adequate. On the contrary, the lack of any indication of suicidal thoughts on the part of M.K. would have rendered any further restriction of his freedom of movement unlawful under the Hospitalisation Act.","16.During the oral hearing of 3 September 2012 the applicant reduced her claim to 15,000 EUR plus 4% interest per annum.","17.On 30 November 2012 the Vienna Regional Civil Court granted the claim. It found that even shortly before his death on 12 May 2010, it could be assumed that M.K. still posed a threat to himself and others, in particular because he still suffered from the delusional idea that he was a different person and did not recognise his parents as his own. Self-harming behaviour could occur outside the hospital environment, due to overstimulation, even in patients who had shown progress after a psychosis. It was no longer possible to determine whether the applicant\u2019s son had jumped in front of the subway train in order to deliberately commit suicide, or whether he followed a spontaneous impulse or a delusional thought to that end. In any event the hospital should have made sure that he was not able to leave the hospital grounds, even if therapeutic walks were medically indicated and permissible in the circumstances.","18.From a legal perspective, the Regional Civil Court affirmed that, as the authority responsible for the Otto Wagner Hospital, the City of Vienna could be held accountable for any culpable action or omission by its organs or officials, pursuant to section 1 of the Official Liability Act. At the material time, the applicant\u2019s son had been lawfully hospitalised by a decision of the F\u00fcnfhaus District Court of 7 April 2010, which remained valid until 21 May 2010. Sections 3 and 33 of the Hospitalisation Act in force at the time provided that, in cases where hospitalisation had been ordered, it was also necessary to guard against threats potentially posed by the patient. Accordingly, the hospital was obliged to ensure restriction of the patient\u2019s freedom of movement in order to protect against potential damage. In the instant case, M.K. was allowed to take walks on the hospital premises because such walks were medically indicated. However, no measures were taken to ensure that he respected the restrictions on his freedom of movement. There was no effective supervision of his walks or their duration. By disregarding its duty of supervision, the hospital had implemented the Hospitalisation Act incorrectly. It was immaterial that the applicant\u2019s son had not shown any signs of suicidal tendencies because the hospitalisation was originally effected because of the danger he posed to himself and to others. Therefore, even if he did not pose a threat to himself anymore, the requirement for hospitalisation was still valid because of the threat he posed to others. In the instant case, the lack of supervision of M.K. resulted in the applicant having to suffer the shock of the death of her son. The court concluded that the civil claim was justified and granted the applicant EUR 15,000 plus interest by way of compensation in respect of non-pecuniary damage.","19.The City of Vienna appealed, claiming that the court had wrongly assessed the evidence, that its finding of facts was incorrect, and that it had wrongly interpreted the law.","20.On 26 March 2013 the Vienna Court of Appeal (Oberlandesgericht) granted the defendant\u2019s appeal and dismissed the applicant\u2019s claim. In its view, there had been no causal link between the wholly unexpected suicide of the applicant\u2019s son and the alleged dereliction of the hospital\u2019s duty of supervision under the Hospitalisation Act. Although it was stated in the hospital admission report that there was a danger of M.K.\u2019s putting himself and others at risk due to his disoriented state, it was also explicitly mentioned that he had no suicidal thoughts. According to the expert opinion by Dr P of 25 May 2012, the continuation of M.K.\u2019s hospitalisation on 12May 2010 was indicated only because of the threat he posed to others, in particular to his mother, but no longer to himself. This was the reason why his freedom of movement at that point had been restricted to the hospital premises rather than just the closed ward. The court found that in the light of the improvement in his symptoms, it was not unusual that he had been allowed to take walks for therapeutic purposes, even if it might have been advisable to allow these walks only when accompanied by hospital staff.","21.The Court of Appeal further affirmed that there had been no indication of self-harm during M.K.\u2019s entire stay at the hospital. He had not voiced suicidal thoughts or undertaken any actions of a suicidal nature. It could not be established whether his jumping in front of the subway train was a suicide which he had planned even before he left the hospital premises, or whether it had been a spontaneous act of self-harm resulting from his psychosis. Naturally, M.K. would not have been able to commit suicide if he had been prevented from leaving the hospital grounds. Even with patients whose psychotic symptoms had improved, the phenomenon of overstimulation could occur if they left the therapeutic environment, whereas such a situation was much less likely to occur within the confines of a hospital. Section 3 \u00a7 1 of the Hospitalisation Act referred, as its purpose, only to the protection of the life and limb of the mental patient himself and third parties. The behaviour of M.K. had not been foreseeable because there had no longer been any indication of possible self-harm at the material time and his action was therefore not attributable to the hospital. The fact that the risk of self-harm could never be entirely excluded in the case of psychotic patients did not change this assessment.","22.The applicant appealed, arguing that at the time when M.K. had committed suicide, the initial decision by the F\u00fcnfhaus District Court on his hospitalisation had still been valid and was based on the assessment that he posed a danger to himself and others because of his paranoid schizophrenia. No new expert opinion had been obtained, and the hospital had not informed the guardianship court (Pflegschaftsgericht) that the threat of self\u2011harm had ceased to exist. Consequently, the medical indication would still have been a restriction of M.K.\u2019s freedom of movement. By failing to restrict his movement, the hospital had acted contrary to the court decision ordering his hospitalisation.","23.On 18 July 2013 the Supreme Court dismissed the applicant\u2019s appeal, upholding the legal and factual findings of the Court of Appeal. It added that a lawful implementation of the Hospitalisation Act was possible both inside and outside a closed ward. M.K.\u2019s hospitalisation had therefore not been unlawful, even though he had been placed in the open ward from 20 April 2010. Contrary to the applicant\u2019s line of argumentation, the Otto Wagner Hospital had not had a duty to implement the F\u00fcnfhaus District Court\u2019s decision on M.K.\u2019s hospitalisation in a manner which compelled it to restrict his movement. This followed from section 32 of the Hospitalisation Act \u2013 according to which a hospitalisation order could be lifted at any time by the head of the institution \u2013 and section 33, which stated that restriction of movement was permissible in limited cases only. The District Court\u2019s decision had not defined the extent or duration of any specific restriction of movement. Section 33 of the Hospitalisation Act provided that a restriction of freedom of movement might only be used as an exceptional measure and \u201clast resort\u201d. Also, Articles 3 and 5 of the Convention restricted the permissibility of isolating mentally ill patients. Even within a closed ward, mentally ill patients had to have the widest possible amount of freedom of movement. Only the more restrictive measures under section 33 of the Hospitalisation Act were subject to judicial review.","24.The Supreme Court also stated that from a therapeutic perspective M.K. had been allowed to take unaccompanied walks because of the improvement in his condition. Moreover, from the time he had been authorised to take these walks, he had always returned without problems. This measure, which had been ordered by the psychiatrist treating him, had therefore been proportionate and necessary pursuant to section 33 of the Hospitalisation Act. In conclusion, the hospital had not acted culpably, for which reason the applicant\u2019s claim under the Official Liability Act was not justified."],"14":["1. Names and personal details of the 212 applicants are indicated in the appendix.","2. The applicants were represented before the Court by Mr A. Saccucci, a lawyer practising in Rome.","A. Circumstances of the case","3. The facts, as presented by the applicants, may be summarised as follows.","4. Before 25 June 1991, the date on which the Republic of Slovenia declared its independence, the applicants were all nationals of both the Socialist Federal Republic of Yugoslavia (\u201cthe SFRY\u201d) and of one of its constituent republics. As nationals of the SFRY, they had acquired the status of permanent residents in Slovenia. They belong to a group of persons known as the \u201cerased\u201d ( izbrisani ), former nationals of the SFRY with permanent residence in Slovenia whose names had been deleted from the Register of Permanent Residents on 26 February 1992 or on subsequent dates (see paragraph 34 below).","5. They are currently nationals of Bosnia and Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, Montenegro, Serbia and Slovenia. Some are stateless persons.","1. The general context","6. The complaints raised in this application arise out of the events and circumstances surrounding the dissolution of the SFRY, the declaration of independence of the Republic of Slovenia and the operation of the legislation enacted on that date, 25 June 1991. This independence legislation resulted in the so-called \u201cerasure\u201d, without any prior notification, of the applicants \u2019 names from the Register of Permanent Residents in Slovenia, on 26 February 1992 or on subsequent dates. According to official data, 25,671 persons were thus \u201cerased\u201d.","7. That meant in particular that the \u201cerased\u201d only subsequently became aware that they had become aliens, when, for example, they attempted to renew their personal documents. They experienced a number of adverse consequences, such as the destruction of their identity documents, the loss of job opportunities, the loss of health insurance, the impossibility of renewing identity documents or driving licences, and difficulties in securing pension rights. Some were also deported from Slovenia.","8. Further to the Constitutional Court \u2019 s rulings of 1999 and 2003 to the effect that the legislation on the \u201cerasure\u201d had been unconstitutional, the Act on the Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in Slovenia ( Zakon o urejanju statusa dr\u017eavljanov drugih dr\u017eav naslednic nekdanje SFRJ v Republiki Sloveniji \u2013 \u201cthe Legal Status Act\u201d) was adopted in 1999 and subsequently amended in 2010. The deadline for filing requests for permanent residence permits under the amended Legal Status Act expired on 24 July 2013.","9. However, neither that legislation nor the practice of the Slovenian courts at the material time provided for the payment of any financial compensation to the \u201cerased\u201d for the damage they had suffered.","10. A more detailed account of the historical background and the relevant provisions of the Aliens Act, the Citizenship Act and the (amended) Legal Status Act, as well as other laws and the practice of Slovenian authorities, are to be found in the Court \u2019 s judgment in the pilot case of Kuri\u0107 and Others v. Slovenia (merits) [GC], no. 26828\/06, \u00a7\u00a7 16-83, ECHR 2012.","2. The pilot judgment on the merits delivered on 26 June 2012","11. In the above-mentioned judgment the Grand Chamber held, unanimously, that there had been a violation of the applicants \u2019 rights, as guaranteed by Articles 8, 13 and 14 of the Convention. The violation essentially originated in the prolonged failure of the Slovenian authorities, in spite of the Constitutional Court \u2019 s leading judgments, to regulate the applicants \u2019 residential status following their \u201cerasure\u201d and to provide them with adequate redress in Slovenia (see paragraphs 6-8 above and Kuri\u0107 and Others (merits), cited above, \u00a7\u00a7 339-362, 369-372 and 384-396 ). Under Article 46 of the Convention, the Grand Chamber ordered the respondent State to set up as a general measure a domestic ad hoc compensation scheme within one year of the delivery of its judgment, that is to say no later than 26 June 2013 (see Kuri\u0107 and Others (merits), cited above, \u00a7 415 and point 9 of the operative part).","12. The Court also awarded 20,000 euros (EUR) to each successful applicant in respect of non-pecuniary damage and the overall sum of EUR 30,000 in respect of costs and expenses. It reserved the applicants \u2019 claims for pecuniary damage for a later stage (see Kuri\u0107 and Others (merits), cited above, \u00a7\u00a7 424-427 and points 10 and 11 of the operative part).","3. Developments following the delivery of the judgment on the merits","(a) The \u201cErased\u201d Compensation Act","13. On 21 November 2013 the Act on Compensation for Damage to Persons Erased from the Register of Permanent Residents ( Zakon o povra\u010dilu \u0161kode osebam, ki so bile izbrisane iz registra stalnega prebivalstva, ZP\u0160OIRSP ) (\u201cthe \u2018 Erased \u2019 Compensation Act\u201d) was enacted. It entered into force on 18 December 2013 and has been applicable since 18 June 2014 (see paragraphs 38-44 below).","14. Within the framework of the execution of the pilot judgment of the Court referred to above, the Act set up an ad hoc compensation scheme for the \u201cerased\u201d, providing for financial compensation and other forms of redress, as well as stipulating the procedure to be followed.","15. Its essential features are that it provides for financial compensation for the \u201cerased\u201d, to be claimed in administrative proceedings, calculated on the basis of a lump sum of EUR 50 for each completed month of \u201cerasure\u201d, covering both pecuniary and non-pecuniary damage sustained.","16. Should the \u201cerased\u201d consider that they are entitled to additional compensation, they may lodge a claim under the general rules of the Code of Obligations ( Obligacijski zakonik, Official Gazette no. 83\/2001) in the judicial proceedings. The Act removes the statute of limitations in respect of claiming damages under the Code of Obligations, as interpreted previously by the Slovenian courts (see Kuri\u0107 and Others (merits), cited above, \u00a7 83). Those \u201cerased\u201d who have previously had their claims for compensation dismissed or the proceedings in respect thereof stayed may lodge new claims with the courts.","17. The total amount of financial compensation, to be paid immediately or in a maximum of five installments (depending on the sum), may not exceed three times the lump sum of EUR 50 for each month of \u201cerasure\u201d.","18. The beneficiaries of the scheme are those \u201cerased\u201d who have acquired a permanent residence permit, on any legal grounds, or been granted Slovenian citizenship, and also those \u201cerased\u201d who made an unsuccessful application to that effect under the previous legislation (that is to say prior to the enactment of the amended Legal Status Act), subject to certain conditions.","19. Any claims for compensation will have to be lodged no later than three years after the \u201cErased\u201d Compensation Act became applicable, that is by 18 June 2017, or after receipt of the decision on permanent residence or Slovenian citizenship or the final negative decision under the previous legislation. In any event, the period of \u201cerasure\u201d may not extend beyond the date of the Act entering into force (for further details, see Kuri\u0107 and Others v. Slovenia (just satisfaction) [GC], no. 26828\/06, \u00a7\u00a7 20-29, ECHR 2014-I).","(b) The Just Satisfaction Judgment in the Kuri\u0107 and Others pilot case delivered on 12 March 2014","20. As to the proceedings concerning the application of Article 41 of the Convention in the pilot case, given that the respondent Government was late in adopting the domestic ad hoc compensation scheme and that the Court on 9 April and 14 May 2013 did not grant their requests for an extension of the time-limit, it decided to adjudicate on the outstanding issues under Article 41. On 12 March 2014 it handed down a just satisfaction judgment in respect of the pilot case ( ibid. , \u00a7\u00a7 12 and 13).","21. Having regard to the inherently uncertain character of the damage arising from the violation of the Convention rights and the lapse of time since the damage had occurred, and making an assessment on an equitable basis, the Grand Chamber considered it reasonable to make a monetary award, based on the varying length of time spent by each applicant as an \u201cerased\u201d person, from 28 June 1994 until the date on which his or her legal status was finally restored, multiplied by a monthly lump sum of EUR 150. A monetary award to two applicants in respect of their respective children was also made, calculated on the basis of a monthly lump sum of EUR 80 for each month of \u201cerasure\u201d (ibid. , \u00a7\u00a7 86-89 and 108-109). The applicants were all thus awarded sums of between EUR 29,400 and EUR 72,770 in respect of pecuniary damage and sums in respect of costs and expenses incurred in the proceedings ( ibid., point 1 of the operative part).","22. Under Article 46 of the Convention, the Grand Chamber also made a preliminary positive assessment of the domestic ad hoc compensation scheme that had in the meantime been implemented (ibid. , \u00a7 140).","(c) Other developments","23. As to the subsequent court proceedings in Slovenia, following the adoption of the \u201cErased\u201d Compensation Act, on 24 January 2014 the Constitutional Court dismissed a petition lodged by an association of the \u201cerased\u201d for a constitutional review of the amended Legal Status Act and of the legal order in general, mostly in respect of the lack of financial reparation for the consequences of the \u201cerasure\u201d (no. U-I- 85\/11 - 19 \u2013 see Kuri\u0107 and Others (merits), cited above, \u00a7 81). The Constitutional Court held that the previous legal vacuum had been filled by the enactment of the \u201cErased\u201d Compensation Act and that the petitioners no longer had any legal interest in pursuing the proceedings before the Constitutional Court.","24. Furthermore (according to information available on the Internet), in 2015 the Constitutional Court rendered several decisions, quashing judgments given by the lower courts and remitting cases for reconsideration. It held that in ruling on such compensation claims, special regard should be given by the courts to the special situation of the \u201cerased\u201d, in particular in respect of the State \u2019 s liability and the rules governing the statute of limitations, thus reversing the case-law established after the Supreme Court \u2019 s decision of 2012 ( see also Kuri\u0107 and Others (merits), cited above, \u00a7 83, as well as paragraph 9 above). It stated that the Court \u2019 s judgments in the pilot case of Kuri\u0107 and Others were of special relevance.","4. Execution of the pilot judgment and the final Resolution of the Committee of Ministers","25. On 25 May 2016 the Committee of Ministers adopted Resolution CM\/ ResDH( 2016)112 in the pilot case of Kuri\u0107 and Others (\u201cthe 2016 CM Final Resolution\u201d) under the terms of Article 46 \u00a7 2 of the Convention. It examined an action report provided by the respondent Government indicating the measures that would need to be taken in order to give effect to the judgment on the merits in that case.","26. In that action report, which was submitted on 18 March 2016, the respondent Government informed the Committee of Ministers that both individual and general measures had been taken in executing the merits and just-satisfaction judgments. As to general measures, steps had been taken to ensure that the compensation scheme functioned properly and that adequate funds had been set aside to meet the claims. It was estimated that approximately EUR 129,600,000 would be needed for the purposes of pecuniary compensation. The actual amount paid in pecuniary compensation that had been claimed through administrative and judicial proceedings in 2014 and 2015 stood at EUR 3,972,128.63 and EUR 5,137,542.37, respectively. The 2016 and 2017 budgets foresee a total of EUR 7,110,200 and EUR 10,007,000 in compensation, respectively.","27. As to the statistics, from 18 June 2014, when the \u201cErased\u201d Compensation Act became applicable, until 26 February 2016, 7,268 claims for financial compensation were lodged with the administrative authorities. By 26 February 2016, decisions had been adopted in respect of 7,081 claims, representing 97.5% of the claims lodged. By 26 February 2016, the total amount determined by final decisions in respect of the payment of compensation in administrative proceedings stood at EUR 21,985,500.","28. During the same period, fifty-one additional claims were lodged with the courts in judicial proceedings, while twenty-nine similar claims were addressed to the State Attorney \u2019 s Office in an attempt to reach a settlement. By 26 February 2016, the State Attorney \u2019 s Office had closed eighteen cases by dismissing the claims concerned. It had also terminated two cases, one by awarding compensation in the amount of EUR 9,854.11. As to the judicial proceedings, the first- and second-instance courts had given decisions in six cases by 26 February 2016. Three such decisions had become final; two of those decisions had ordered the payment of compensation, while third had confirmed the withdrawal of the claim in question. Other proceedings were pending.","29. The Government stated that these figures should be seen in the correct context. By July 2013, 10,046 of the 25,671 \u201cerased\u201d had settled their residence status (see Kuri\u0107 and Others (just satisfaction), cited above, \u00a7 28). Furthermore, by 31 January 2016 under the amended Legal Status Act, 1,907 requests for permanent residence had been lodged (of these, 1,608 had been lodged by the \u201cerased\u201d themselves, seventy by their children and 229 by citizens of other successor States to the former SFRY who had not been subject to the \u201cErased\u201d Compensation Act). By the same date, a total of 259 permanent residence permits had been issued (217 of these to \u201cerased\u201d persons), 1,395 requests for a permanent residence permit had been refused and 253 were awaiting a decision.","30. The data available as at 31 January 2016 also showed that 933 requests for a special ex tunc decision on the granting of a residence permit had been lodged with the lowest administrative authority (see Kuri\u0107 and Others (merits), cited above, \u00a7 77). Of these, 254 such requests had been lodged by the \u201cerased\u201d, 70 by the children of \u201cerased\u201d, and 609 by Slovenian nationals who had been \u201cerased\u201d before they had acquired Slovenian citizenship. By the same date, the administrative authorities had issued 612 such special decisions (111 of these were granted to the \u201cerased\u201d, 39 to their children and 462 to Slovenian nationals). 255 requests had been refused and 66 proceedings remained pending.","31. The respondent Government considered, in view of the above \u2011 mentioned figures, that most eligible beneficiaries had largely availed themselves of the possibility to claim compensation provided for under the \u201cErased\u201d Compensation Act.","32. The Committee of Ministers, having satisfied itself that all the measures required by Article 46 \u00a7 1 had been adopted, declared that it had exercised its functions under Article 46 \u00a7 2 of the Convention in the Kuri\u0107 and Others case and decided to close the examination thereof.","5. The particular circumstances of the present case","33. All applicants in the present case are in an essentially similar situation to that of the successful applicants in the pilot case of Kuri\u0107 and Others, who had regularised their legal status in Slovenia by the acquisition of permanent residence permits before the Grand Chamber judgment on the merits was given (see Kuri\u0107 and Others (merits), cited above, \u00a7\u00a7 95, 123, 133, 158, 173 and 194).","34. Most of the applicants were \u201cerased\u201d from the Register on 26 February 1992, since they had failed to apply for Slovenian citizenship within the prescribed time-limit, 25 December 1991. Furthermore, some of the applicants did apply in time for Slovenian citizenship, but their requests were refused on other grounds (for instance because they did not meet the requirement that they actually be resident in Slovenia at the time of lodging their respective citizenship requests). Accordingly, they were \u201cerased\u201d from the Register two months after the relevant administrative decision had become final. They thus became aliens with no legal status in Slovenia (see paragraphs 4 and 6 above).","35. By means of legal instruments adopted on various dates by the Slovenian authorities under the Legal Status Act, the amended Legal Status Act, or the Citizenship Act, or further to the leading decisions of the Constitutional Court (see paragraph 8 above), the applicants regularised their legal status in Slovenia either by obtaining permanent residence permits (with or without retroactive effect) or by acquiring Slovenian citizenship. Some of the applicants, having obtained Slovenian citizenship, were granted ex tunc permanent residence from the date of their \u201cerasure\u201d until the date of their acquiring citizenship (for the dates of regulation of the legal status as well as periods of unregularised status in respect of individual applicants, see the appendix ).","36. None of the applicants has informed the Court that they had made use of the compensatory remedy provided for by the \u201cErased\u201d Compensation Act (see paragraphs 13-19 above and 38-44 below).","B. Relevant domestic law","1. General background and laws, as applicable before the \u201cErased\u201d Compensation Act came into effect","37. A detailed description of the historical, political and social background to the case and of the laws affecting and governing the status of the \u201cerased\u201d can be found in Kuri\u0107 and Others (merits), cited above, \u00a7\u00a7 16 \u2011 83 and 196-215.","2. Act Regulating Compensation for Damage Sustained as a Result of Erasure from the Register of Permanent Residents ( Zakon o povra\u010dilu \u0161kode osebam, ki so bile izrisane iz registra stalnega prebivalstva, Official Gazette no. 99 \/2013)","38. Section 2 of this Act defines the beneficiaries of the ad hoc compensation scheme.","Section 2","\u201c(1) A beneficiary of compensation for damage sustained as a result of erasure from the Register of Permanent Residents shall be a person who was erased from the Register of Permanent Residents and","- obtained a permanent residence permit under the Aliens Act ..., the Legal Status Act ... or the Temporary Asylum Act ... after being erased from the Register of Permanent Residents, or","- was granted citizenship of the Republic of Slovenia after being erased from the Register of Permanent Residents.","(2) A beneficiary of compensation for damage sustained as a result of erasure from the Register of Permanent Residents may also be a person erased from the Register of Permanent Residents","- who after erasure from the Register of Permanent Residents and before the enforcement of the amended Legal Status Act ... lodged an application for the issuance of a permanent residence permit under the Aliens Act ..., the Legal Status Act ... or the Temporary Asylum Act ... or an application for citizenship of the Republic of Slovenia, and","- whose application was rejected [or] dismissed or the procedure was stayed, except in the event that the application was rejected because of a threat to public order, security or the defence of the Republic of Slovenia, international relations or the prosecution of criminal offences, in compliance with the provisions of the Citizenship of the Republic of Slovenia Act ... [or] the Aliens Act ..., or ... on grounds [specified in] Article 3 of the Legal Status Act, or if the procedure was stayed due to the non-cooperation of the party concerned during the establishment of such grounds, [provided that] the person actually lived in the Republic of Slovenia during the period between [his or her] erasure from the Register of Permanent Residents and a final decision being made under the preceding paragraph.","(3) The condition of actual residence in the Republic of Slovenia under the preceding paragraph [shall be deemed to have] been met if the person left the Republic of Slovenia and the uninterrupted absence lasted for no more than one year, irrespective of the reason for such absence. The condition of actual residence in the Republic of Slovenia shall also have been met if the absence lasted for more than one year and the absence was justified ...","(4) The right to compensation for damage sustained as a result of erasure from the Register of Permanent Residents shall not be accorded to a person who was erased from the Register of Permanent Residents and whose application for permanent residence, lodged in accordance with the act regulating the legal status of citizens of the former Yugoslavia living in the Republic of Slovenia, was rejected, dismissed or the procedure was stayed after the enactment of the amended Legal Status Act.\u201d","39. Section 3 of this Act defines the period of \u201cerasure\u201d.","Section 3","\u201c(1) [For a person not in possession of a permanent residence permit of the Republic of Slovenia prior to his or her naturalisation as a citizen of the Republic of Slovenia] the period of erasure shall be the period between the date of erasure from the Register of Permanent Residents and the date of the issuance of a permanent residence permit or the period between the date of erasure from the Register of Permanent Residents and the date of naturalisation as a citizen of the Republic of Slovenia. ...\u201d","40. Section 4 specifies the different forms of redress available to the \u201cerased\u201d.","Section 4","\u201c(1) Pecuniary compensation for damage sustained during the period of erasure as a result of deletion from the Register of Permanent Residents may be claimed by a beneficiary in an administrative procedure and shall be determined in accordance with the conditions and criteria laid down in this Act; a beneficiary shall also have the right to initiate a court action to seek pecuniary compensation.","(2) Subject to the conditions laid down in this Act, a beneficiary shall also be entitled to other forms of just satisfaction for damage sustained as a result of erasure from the Register of Permanent Residents.","(3) A beneficiary shall be entitled to claim damages under this Act if prior to the application of this Act a pecuniary compensation claim brought in judicial proceedings in respect of compensation for damage sustained as a result of erasure from the Register of Permanent Residents was finally rejected or dismissed or the procedure was stayed.\u201d","41. The following provisions are relevant for claiming financial compensation within the framework of administrative proceedings.","Section 7","\u201c(1) The amount of pecuniary compensation awarded to a beneficiary in the administrative procedure shall depend on the period of erasure.","(2) A beneficiary shall be entitled to a compensation payment of EUR 50 for every complete month of erasure from the Register of Permanent Residents. ...\u201d","Section 8","\u201c(1) The administrative procedure for determining pecuniary compensation shall be initiated by the party [concerned]. A claim for the determination of the amount of pecuniary compensation shall be lodged within three years of the date the application this Act becoming applicable.","(2) A person who has not yet been issued a final decision on an application for permanent residence permit or for citizenship of the Republic of Slovenia lodged prior to the date of this Act becoming applicable and who, on the basis of the aforementioned application, satisfies the conditions referred to in Article 2 of this Act shall have the right to lodge a claim to determine the amount of pecuniary compensation within three years of obtaining a permanent residence permit or being granted citizenship of the Republic of Slovenia or within three years of a final decision by which an application for the issuance of permanent residence or citizenship of the Republic of Slovenia was rejected [or] dismissed or of the procedure being stayed. ...\u201d","42. The provisions concerning claims for financial compensation within the framework of judicial proceedings are the following.","Section 10","\u201c(1) Compensation for damage caused by erasure from the Register of Permanent Residents and sustained by a beneficiary during the period of erasure may be claimed by the beneficiary in a court action for payment of compensation for damage sustained as a result of erasure from the Register of Permanent Residents (hereinafter: an action) within three years of the date of this Act becoming applicable. ...\u201d","Section 11","\u201c(1) When deciding on pecuniary compensation for erasure from the Register of Permanent Residents, the provisions of the act governing obligations shall be followed, unless otherwise provided by this Act.","(2) The proceedings referred to in paragraphs 1 and 2 of the preceding Article shall not be subject to the statute of limitation in respect of claims referred to in paragraph 15 of the Code of Obligations.\u201d","Section 12","\u201cTotal pecuniary compensation for damage sustained as a result of erasure from the Register of Permanent Residents, including statutory default interest, awarded in judicial proceedings may not exceed three times the pecuniary compensation determined for a beneficiary in administrative proceedings.\u201d","43. Section 13 defines the payment procedures in respect of financial compensation.","Section 13","\u201c(1) Pecuniary compensation shall be paid to a beneficiary in up to five instalments, depending on its amount.","(2) Pecuniary compensation determined in an amount up to and including EUR 1,000 shall be paid to a beneficiary in a single sum within 30 days of the final decision or judgment. ...","(6) Pecuniary compensation determined in an amount above EUR 4,000 shall be paid to a beneficiary in five equal instalments, whereby the first instalment must not be lower than EUR 1,000. The first instalment, of a minimum of EUR 1,000, shall be paid within 30 days of the final decision or judgment and the remaining amount shall be paid in four equal instalments, to be paid one year following the due date of the first or previous instalment.\u201d","44. Section 15 provides for other forms of redress to be made to the \u201cerased\u201d.","Section 15","\u201cIn addition to pecuniary compensation under the conditions laid down in this Act, a beneficiary shall also be entitled to other forms of just satisfaction:","1. payment of contributions for compulsory health insurance;","2. inclusion and priority consideration in social assistance programmes;","3. facilitation of exercising rights to public funds;","4. State scholarships;","5. equal treatment in resolving housing problems;","6. access to the education system;","7. participation and priority treatment in programmes for aliens other than EU nationals aimed at assisting their integration into the cultural, economic and social life of the Republic of Slovenia.\u201d"],"15":["1. The applicant, Ms Rabiya Akda\u011f, is a dual Dutch and Turkish national who was born in 1990 and lives in Vlaardingen. She was represented before the Court by Ms Y.M. Schrevelius, a lawyer practising in Rotterdam.","A. The circumstances of the case","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","1. Background","3. The applicant, who was born and grew up in the Netherlands, had a relationship in that country with Mr S., who is a Dutch national and who was born in Suriname. A son was born to them on 10 January 2012. Initially the child was given up for adoption. However, after three months the son was placed back with the applicant as the latter no longer wished to continue the adoption process. Mr S. then also got involved in the upbringing of the son. Mr S. acknowledged paternity on 16 April 2012. He obtained joint parental authority on 11 June 2012.","4. On 26 June 2012 the applicant and her son, who, like the applicant, has both Dutch and Turkish nationality, emigrated to Suriname to settle there with Mr S. The applicant, Mr S., and their son lived there with the parents of Mr S.","5. On 6 July 2013 the applicant returned to the Netherlands with her son. She initially stayed with Mr S. \u2019 s grandmother. Two weeks later, Mr S. followed the applicant back to the Netherlands. Their relationship ended soon after.","6. On 26 September 2013 the applicant lodged a criminal complaint against Mr S., as he was planning to take their son back to Suriname, allegedly without her permission. Mr S. was arrested at the airport on the same day and the son was returned to the applicant.","2. Proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (\u201cthe Hague Convention\u201d)","7. On 31 October 2013 Mr S. applied to the Regional Court ( rechtbank ) of The Hague for an order requiring the applicant, pursuant to Article 12 of the Hague Convention (see paragraph 22 below), to either return the son to Suriname or to hand in the son \u2019 s valid travel documents so that he could take the child back to Suriname.","8. On 1 November 2013 the Regional Court ruled that the Rotterdam Youth Care Office ( Stichting Bureau Jeugdzorg ) should have temporary guardianship over the applicant \u2019 s son until 22 November 2013. At the same time, the assessment of the application made by Mr S. was adjourned.","9. A preparatory hearing ( regiezitting ) was held on 14 November 2013. At this meeting, in the presence of the guardian ( voogd ) of the Rotterdam Youth Care Office, who submitted that it would be better if the parents mutually reached a solution and that the son was seemingly developing well, the applicant and Mr S. agreed to start a mediation process. However, on 18 November 2013 the Regional Court was informed that mediation had failed.","10. The Regional Court decided on 22 November 2013 to extend the temporary guardianship of the Rotterdam Youth Care Office until a decision was put into effect on the return of the son.","11. Another hearing was held on 5 December 2013 to obtain further statements from the applicant and Mr S. The applicant stated that she and Mr S. had intended to return to the Netherlands to resettle there, that she was the primary carer of her son, and that it was impossible for her to return to Suriname. Mr S. stated that he had not agreed to return to the Netherlands to settle there permanently, and added that the applicant had a residence permit in Suriname which allowed her to live and work there and, should she choose not to return to Suriname, he could take care of their son.","12. On 19 December 2013 the Regional Court refused Mr S. \u2019 s application for an order for the son to be returned to Suriname. At the outset the Regional Court noted that by virtue of section 11(1) of the International Child Abduction Implementation Act ( Uitvoeringswet internationale kinderontvoering; hereafter \u201cthe Implementation Act\u201d) it had jurisdiction to deal with all cases concerning the forced return of an abducted child to the person who had parental authority over said child and the repatriation of that child from the Netherlands. It further noted that Mr S. had based his request for the son \u2019 s return on the Hague Convention, and although Suriname was not a Contracting State, it observed that the Implementation Act also applied to situations of international abduction of children that were not covered by a convention. It also noted that section 13(3) of the Implementation Act provided that in situations which were not covered by a convention the judge could refuse the return request on the grounds set out in Article 12 paragraph 2, Article 13 and Article 20 of the Hague Convention. Therefore the Regional Court found that the Implementation Act allowed it to apply the Hague Convention by analogy in the case before it.","13. As regards the assessment of Mr S. \u2019 s application, the Regional Court held that it was undisputed that the son had been habitually resident in Suriname before his retention in the Netherlands and that joint parental authority was, or would have been, exercised during that period had this not been the case. The Regional Court noted that, contrary to her submissions in the proceedings at issue, the applicant had not said, in the statements given by her to the police on 26 September 2013 in relation to the criminal complaint she had made against Mr S ., that the latter had consented to the child moving to, and living permanently in, the Netherlands. Having failed to explain her contradictory statements regarding any permission given by Mr S. for their son \u2019 s resettlement in the Netherlands, the Regional Court found that documentary evidence introduced by the applicant, including an email reply from a company in the Netherlands to a job application made by Mr S. and a letter from a social housing cooperation, also in the Netherlands, about an outstanding payment, were insufficient to conclude that Mr S. had indeed given his prior permission to the applicant to take their son to the Netherlands. The Regional Court concluded that the son \u2019 s retention by the applicant violated the parental authority of Mr S. and was wrongful within the meaning of Article 3 of the Hague Convention (see paragraph 22 below).","14. With reference to Article 12 of the Hague Convention, the Regional Court noted that this provision required the immediate return of the child when a period of less than a year had lapsed between the child \u2019 s retention and the submission of the return application, and that even in cases where more than a year had lapsed an immediate return may be ordered unless it was demonstrated that the child was rooted in its new environment. The Regional Court held that in the present case, where the period between the retention and the return application was less than a year, it did not have to assess whether the son was rooted in the Netherlands, and that his immediate return should be ordered, unless an exception as provided in Article 13 of the Hague Convention (see paragraph 22 below) applied.","15. Accordingly, the Regional Court next examined whether Article 13 of the Hague Convention stood in the way of an order being issued for the son \u2019 s immediate return. It held, firstly, that it had not been established that Mr S. had subsequently acquiesced in the retention of his son (Article 13 (a) of the Hague Convention). Secondly, as to the question whether the return of the son would expose him to physical or psychological harm or otherwise place him in an intolerable situation (Article 13 (b) of the Hague Convention), the Regional Court observed that the applicant and Mr S. were young adults and that the pregnancy had not been planned, but that after the first three months of their son \u2019 s life they had both assumed their parental roles. As the birth of their son had changed their study and work plans and there had been problems between, on the one hand, the applicant and Mr S. and, on the other, the couple and the applicant \u2019 s family, they had decided to start a new life in Suriname, where the family of Mr S. were residing. The Regional Court noted that the applicant and Mr S. had not been able to build up an independent life in Suriname, where they depended on Mr S. \u2019 s family for both their income and housing. The applicant \u2019 s return to Suriname would entail a return to the same situation of dependency. The Regional Court also noted that Mr S. had acknowledged that the applicant did not have independent accommodation and for the time being also no means of subsistence in Suriname. While the applicant would be able to obtain work in Suriname, it remained unclear if and when she would succeed in doing so and how she would be able to fend for herself in the meantime. The Regional Court further noted that Mr S. had not offered to contribute to the applicant \u2019 s residence in Suriname, other than to propose that she return to live in his parents \u2019 house, which could not be expected of her as her relationship with Mr S. had ended. The Regional Court therefore concluded that it was impossible for the applicant to return with her son to Suriname. Accordingly, were the return of the son to be ordered, the son would be separated from his mother. The Regional Court held that it was generally known that children of the son \u2019 s age, who was at that time two years old, were going through a crucial phase of the process of forming an attachment bond. The son had primarily formed such a bond with his mother, given that she had been his main carer in Suriname as Mr S. was employed full-time in his family \u2019 s company. Also, it took into account that the son was even more vulnerable given his early history. The Regional Court concluded that the son would be placed in an intolerable situation by separation from the applicant.","16. On 2 January 2014 Mr S. lodged an appeal with the Court of Appeal ( gerechtshof ) of The Hague disputing the conclusion of the Regional Court that the son would be put in an intolerable situation in the event of a return to Suriname. He argued that the applicant had not provided any evidence to that end, that the exceptions provided in Article 13 of the Hague Convention should be interpreted restrictively, and that he was also able to take care of his son, with the support of his family when necessary. Mr S. further submitted a statement from his father in which the latter pledged to provide the applicant with housing in Suriname, within a maximum distance of 15 km of her son \u2019 s place of residence and for a period of six months and with a financial allowance for the same period of time, as well as to make the necessary effort to help find a job for the applicant.","17. The applicant argued that it could not be expected of her to return to Suriname, where she lacked social and family ties. She added that she could not rely on the guarantees provided by the family of Mr S. and that in any event these were insufficient and only valid for a period of six months, after which she would most likely either have to live below the poverty line or be separated from her son because she would need to work many hours per week in order to make a living. The applicant further added that a child of her son \u2019 s age forms an attachment bond with one person only and, with reference to a scientific publication and the website of the Netherlands Youth Institute ( Nederlands Jeugdinstituut ), that a disruption of a secure attachment bond could have serious repercussions and lead to behavioural problems at a later stage in a child \u2019 s life. Given that her son had formed such an attachment bond primarily with her, as his main carer, she submitted that a separation from his mother would place her son in an intolerable situation.","18. A hearing was held before the Court of Appeal on 13 January 2014. Mr S. submitted that he would pay for the applicant \u2019 s ticket, and that his father \u2019 s offer to provide housing for the applicant for the first six months after her return to Suriname also applied regardless of whether the son lived with the applicant or with him (Mr S.); it would be for a Surinamese court to decide with which of his parents the son would live. The applicant stated that she could not rely on the statements made by Mr S. or his father. The son \u2019 s guardian had been unable to attend the hearing. At the end of the hearing, the presiding judge informed the parties that the guardian would be contacted by telephone prior to the Court of Appeal issuing its decision, and that the parties would be given an opportunity to respond to the contents of that telephone conversation.","19. On 15 January 2014 the presiding judge telephoned the guardian, who stated, inter alia, that the son would be in good hands with either the father or the mother, that there was no risk of abuse ( mishandeling ), that the son was developing age-appropriately, that he recognised the family in Suriname from photographs, and that he had in the meantime also become acquainted with his mother \u2019 s family. However, he did not understand the situation very well and clarity was needed. The following day the presiding judge contacted the representatives of the applicant and Mr S. to allow them to respond to the findings of the guardian. Mr S. submitted that if the son were to remain in the Netherlands he foresaw problems in connection with the fact that the applicant \u2019 s family did not accept him (Mr S.). The applicant stated that nothing had been said about the bonding of the son or about how he might react to being separated from one of his parents.","20. In its decision of 27 January 2014, the Court of Appeal upheld Mr S. \u2019 s appeal, quashed the Regional Court \u2019 s decision in so far as it concerned its rejection of the request submitted by Mr S., and ordered that the son be returned to Suriname. While the Court of Appeal agreed with the Regional Court that the son \u2019 s retention was wrongful within the meaning of Article 3 of the Hague Convention, it found in contrast to the lower court that the applicant had made an insufficiently plausible case for believing that the son would be exposed to physical or mental harm or put in an intolerable situation upon his return to Suriname. Although the child was only two years old, had changed his place of residence multiple times and had been separated from his parents for the first three months of his life, it was undisputed that he was doing well, that he was developing age-appropriately, and that he was attached to both parents. It considered that both parents were involved in their son \u2019 s life and were able to take good care of him. The appellate court found that the applicant had insufficiently substantiated her argument that she would be unable to fend for herself in Suriname and take care of her son due to a lack of financial means, as a result of which her son would be put in an intolerable situation. The Court of Appeal referred in this regard to the undertaking given by Mr S. \u2019 s father to the effect that he would provide the applicant with accommodation and an income for the first six months of her stay in Suriname, and the further explanation of that undertaking provided by Mr S. at the hearing, including the additional undertaking that Mr S. would cover the cost of a flight ticket for the applicant.","B. Relevant domestic and international law and practice","1. The International Child Abduction Implementation Act","21. Provisions of the Implementation Act relevant to the case are the following:","Section 11","\u201c1. Without prejudice to the competence of the provisional measures judge of the Regional Court of The Hague in interim injunction proceedings, the juvenile judge of the Regional Court of The Hague has exclusive first-instance jurisdiction to hear all cases relating to the forced return of an internationally abducted child to the person who holds parental authority [over that child] and the repatriation of such a child across the Netherlands border ...\u201d","Section 12","\u201cThe cases referred to in section 11 are introduced by an application.\u201d","Section 13","\u201c... 3. In cases where no convention applies the judge may refuse the application on the grounds set out in Articles 12, paragraph 2, 13 and 20 of the Hague Convention ...\u201d","2. The Hague Convention on the Civil Aspects of International Child Abduction","22. The Hague Convention, ratified by the Netherlands, in its relevant parts reads as follows:","Article 3","\u201cThe removal or the retention of a child is to be considered wrongful where \u2013","a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and","b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.","The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.\u201d","Article 4","\u201cThe Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.\u201d","Article 12","\u201cWhere a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.","The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.","Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.\u201d","Article 13","\u201cNotwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -","a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or","b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.","The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.","In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child \u2019 s habitual residence.\u201d","23. The Explanatory Report on the Hague Convention, prepared by Elisa P\u00e9rez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982 (\u201cthe P\u00e9rez - Vera Report \u201d ), provides the following comments on the notion of \u201cthe best interest of the child\u201d:","\u201c... one fact has rightly been highlighted, viz. that \u2018 the legal standard \u201cthe best interest of the child\u201d is at first view of such vagueness that it seems to resemble more closely a sociological paradigm than a concrete juridical standard ... the general statement of the standard does not make it clear whether \u201cthe interests\u201d of the child to be served are those of the immediate aftermath of the decision, of the adolescence of the child, of young adulthood, maturity, senescence or old age \u2019 ...\u201d (\u00a7 21, p. 431)","and","\u201c... [ the philosophy of the Convention] can be defined as follows: the struggle against the great increase in international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests. Now, the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests of the child. ... In fact, ... in the literature devoted to a study of this problem, \u2018 the presumption generally stated is that the true victim of the \u201cchildnapping\u201d is the child himself, who suffers from the sudden upsetting of his stability, the traumatic loss of contact with the parent who has been in charge of his upbringing, the uncertainty and frustration which come with the necessity to adapt to a strange language, unfamiliar cultural conditions and unknown teachers and relatives \u2019 .\u201d (\u00a7 24, pp. 431 and 432)","and","\u201cIt is thus legitimate to assert that the two objects of the Convention \u2013 one preventive, the other designed to secure the immediate reintegration of the child into his habitual environment \u2013 both correspond to a specific idea of what constitutes the \u2018 best interests of the child \u2019 ... However ... it has to be admitted that the removal of the child can sometimes be justified by objective reasons which have to do either with its person, or with the environment with which it is most closely connected. ...\u201d (\u00a7 25, p. 432)\u201d","24. The P\u00e9rez-Vera Report contains the following general comments about the exceptions to the principle of the child \u2019 s prompt return:","\u201c... [ the exceptions] to the rule concerning the return of the child must be applied only as far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them \u2013 those of the child \u2019 s habitual residence \u2013 are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child \u2019 s residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration.\u201d (\u00a7 34, pp. 434 and 435)","and","\u201c... the exceptions [in Articles 13 and 20] do not apply automatically, in that they do not invariably result in the child \u2019 s retention; nevertheless, the very nature of these exceptions gives judges a discretion \u2013 and does not impose upon them a duty \u2013 to refuse to return a child in certain circumstances.\u201d (\u00a7 113 p. 460)","and","\u201cWith regard to article 13, the introductory part of the first paragraph highlights the fact that the burden of proving the facts stated in sub-paragraphs a and b is imposed on the person who opposes the return of the child, ...\u201d (\u00a7 114, p. 460; [italics in original])","and","\u201cThe exceptions contained in [Article 13] b deal with situations ... where the return of the child would be contrary to its interests, ... Each of the terms used in this provision is the result of a fragile compromise reached during the deliberations of the Special Commission [of the Hague Conference on Private International Law] and has been kept unaltered. Thus it cannot be inferred, a contrario, from the rejection during the Fourteenth Session of proposals favouring the inclusion of an express provision stating that this exception could not be invoked if the return of the child might harm its economic or educational prospects, that the exceptions are to receive a wide interpretation.\u201d (\u00a7 116, p. 461)"],"16":["9.The applicant was born in 1966. She is currently detained in Forest-Berkendael Prison.","10.On 22 September 1990 the applicant married B.M., whom she divorced after the events to which the application relates. According to her explanations, since 1983 B.M. had been living with DrM.S., a man fifteen years his elder, who had taken him in following B.M.\u2019s arrival from Morocco, providing him with a home and paying for his studies.","11.The applicant and her husband had five children. In 1992, shortly after the birth of her first child, the applicant began suffering from depression and stopped working as a French and history teacher, only returning for a few months in 1993. Dr M.S. certified her unfit for work on account of depression and asthenia. Subsequently, her insurance company\u2019s medical adviser confirmed that she was unfit for work on account of depression. In October 1996 a report by a court-appointed psychiatrist, which was later endorsed by the Employment Tribunal, diagnosed her as suffering from \u201crecurrent endogenous anxiety and depression, with a slightly destabilised basic personality\u201d, rendering her more than 66% unfit for work. The expert concluded as follows:","\u201c... social contact feeds a sense of persecution and interpretative paranoia. The patient is socially withdrawn and has a tendency to retreat into herself. When faced with anxiety-inducing situations, the patient regresses emotionally, retreats into herself and takes refuge in passive-receptive and hypochondriac behaviour. On account of her intrinsic sensitivity, her anxiety may be combined with reactive depression. To conclude, we are confronted with a fragile, sensitive and anxious personality, with feelings of abandonment and phobic and obsessional components, who is likely, in situations of anxiety, to regress emotionally, to withdraw into herself and to develop various manifestations of anxiety, persecution and depression.\u201d","12.The applicant and B.M. lived in a house which had been bought in their name but paid for by Dr M.S. The applicant\u2019s husband worked part-time as Dr M.S.\u2019s administrative assistant.","13.On 25 June 2004, on the recommendation of Dr M.S., who was her general practitioner, the applicant consulted a psychiatrist, D.V., who prescribed an antidepressant, sleeping tablets and anti-anxiety medication. Dr D.V., who had suggested that the applicant undergo psychiatric monitoring, saw her again on 4 February 2005, among other occasions, and wrote to M.S. recommending that he prescribe her a new antidepressant, as well as sleeping tablets and anti-anxiety medication. The applicant consulted D.V. once a month between February 2005 and the summer of 2006. The latter noted that the applicant appeared to be \u201calways very tense and suffering from nervous exhaustion, constituting all the hallmarks of rumination\u201d and that she showed \u201csymptoms of social withdrawal and abnormal exhaustion during household tasks\u201d. In the spring of 2006 the applicant reported to D.V. that she felt isolated from her own family. From September 2006 she saw him every three weeks. In December 2006 D.V. successively prescribed the applicant two types of sleeping tablets. On 12January 2007 she linked her exhaustion to the fact that she could not bear Dr M.S.\u2019s presence, and on that occasion D.V. noted \u201ca feeling of dependence\u201d on M.S. financially, \u201ca feeling of insecurity\u201d and \u201ca feeling towards that person [M.S.] which was one of intrusion, of having an unwelcome person under her roof, and also a great deal of ambivalence\u201d.","14.Dr D.V. saw the applicant again on 30 January and 9 and 13February 2007. On the last-mentioned date the applicant wrote him a letter, which read:","\u201cDoctor, I don\u2019t feel very well when I wake up, I have trouble getting out of bed and I have stomach cramps. I have to get up though because I have diarrhoea every morning. I have this big knot. The whole of my left arm is frozen. I feel so sad, deeply sad. I can no longer manage a coffee in the morning. I feel very weak and lacking energy. I am afraid all the time. I am afraid of myself. I am afraid of the future. When I walk down the street, I am afraid. I don\u2019t have the courage. I don\u2019t know where to find the courage and I am tired of it all. I don\u2019t want to believe in a better future. I am at a dead end. I have been to a shop. I went to see if they had a very sharp meat knife. I don\u2019t know how I am going to tell my husband all this, that I don\u2019t feel well and that I have always kept it hidden that I felt so bad about myself and in my head and that I was taking medication. Please do something for me. I am being crushed by a mass of bad feelings. I have never felt so vulnerable. I feel unwell during the night. I often wake up and think. Ms Lhermitte ...\u201d","15.In February 2007 the applicant mentioned sharp knives to D.V. on one or two occasions. D.V. interpreted this as \u201can impulse phobia\u201d. He saw her again on Friday 23 February 2007, noting that the applicant remained \u201cextremely preoccupied as well, in the absence of her husband who [had] gone to Morocco again, and [found] herself having to deal alone with her uneasy feelings towards [M.S.]\u201d.","16.Early in the morning of 27 February 2007, the day before the incident, the applicant went to Dr D.V.\u2019s practice and delivered a second letter which she had just written. The letter read as follows:","\u201cDr [V.], you don\u2019t have much time. I have not felt well these last few days. I\u2019m having dark thoughts. They are suicidal thoughts which are going to carry me away and I will take my children with me. It\u2019s a daily struggle. My friend [V.G.] is supporting me. There is no solution to my problem. I feel walled up. I feel like a prisoner. I no longer have the strength. I don\u2019t think my husband will save me because whichever way you look at it, he is in a favourable position. He is coming home tomorrow evening but I can\u2019t tell him of all my pain and distress. The family situation cannot be turned around. I have already had suicidal thoughts in the past. I imagine scenarios which are both true and realistic and I know I am capable. This is not a game. Sorry to take up your time! Ms Lhermitte ...\u201d","17.Later that day, in the early afternoon, the applicant telephoned DrD.V.\u2019s practice to check that her letter had actually been received.","18.The applicant\u2019s letters addressed to Dr D.V. dated 13 and 27February 2007 were not included in the file on the criminal investigation. D.V. later indicated that they had not formed part of the applicant\u2019s medical records.","19.On 28 February 2007 the applicant left a final letter, together with a bag of jewellery, in the letterbox of her friend and confidante V.G. The letter read as follows:","\u201cMy dear friend [V.],","I have cut off my phone and I am now starting to write this letter.","I hope you will not be shocked by what I\u2019m going to write.","You must show it to [Dr D.V.] who will be at \u00c9rasme [hospital] on Friday morning at9. He will be able to help you and explain what you explained to me so kindly when you came to my house. I don\u2019t have the courage to get things moving and I am completely frozen and paralysed with fear because there is no solution to my problem. You have always opened your door to me and my children and have been a ray of sunshine in our life, and I will thank you forever. I have decided to go a long way away with the children forever. One day, you\u2019ll see, we\u2019ll meet again but I don\u2019t regret this final solution.","Please let my sister Mireille ... and my other sister Catherine ... know. Please forgive me. I beg my sisters to forgive me if I have hurt them. I can no longer bear this situation, because my husband is blind and deaf and despite that, he is happy in this situation.","[M.S.] is a bastard who has ruined my life and robbed me of my privacy with my husband and children. I left the hell of my parents\u2019 home only to fall into another hell. ...\u201d","20.The applicant ended her letter by asking her friend to share her jewellery with her two sisters. She also left a voicemail message on V.G.\u2019s mobile phone \u2013 in a voice which the investigating officers later described as \u201ctrembling\u201d and \u201chesitant\u201d \u2013 telling V.G. that she had left a letter and a present in her letterbox and asking to be \u201cforgiven\u201d, before saying \u201cgoodbye\u201d.","21.Afterwards, using two knives which she had stolen from a department store, the applicant killed her five children one by one before attempting suicide.","22.After writing the message \u201ccall the police\u201d on a sheet of paper stuck to her front door, she telephoned the emergency services to say that she had killed her five children and to report her suicide attempt. When the police, the ambulance crew and the medical services arrived at the scene, they found the applicant, who was injured, and the bodies of the five children with their throats slit.","23.When the applicant was admitted to the intensive-care unit on the day of the incident, the doctor treating her noted \u201cdepressive, self-destructive thoughts against a background of psychotropic, anti-anxiety and antidepressant medication\u201d. During her initial police interview, the applicant had explained that she had acted in a fit of despair caused by her family\u2019s dependence on Dr M.S.","24.On 1 March 2007 an investigating judge at the Nivelles Court of First Instance charged the applicant with the intentional and premeditated homicide of her five children. The applicant was also placed in pre-trial detention.","25.Forensic medical reports produced between 12 March and 31December 2007 concluded that the five homicides had been committed in a relatively short time \u2013 about ten minutes in each case \u2013 and that, in view of the speed at which the events had occurred, they were the result of a preconceived plan. In addition, toxicological analyses carried out on blood samples taken from the applicant confirmed that she had only been taking a combination of anti-anxiety medication and sleeping tablets, the plasma levels detected being described as subtherapeutic \u2013 in other words, very low.","26.The investigating judge ordered several psychological reports. Two psychologists examined the applicant and submitted their respective reports on 30 October and 8 November 2007. They both concluded that the applicant was suffering from inner fragility requiring massive, rigid defences to preserve a perfect facade. She had developed a maternal omnipotence and a lack of psychological distance between the children and herself. Thus, by killing her children \u2013 love-objects in whom she had over-invested \u2013 the applicant was killing herself both as a person and as a mother.","27.A psychiatric assessment was also ordered by the investigating judge, who appointed a panel of three psychiatrists, Drs G., B. and M. The panel of experts examined the applicant and drew up a report dated 30October 2007, in which they concluded:","\u201cWe consider that [the applicant] was in a severe state of anxiety and depression which encouraged her to act as she did and profoundly impaired her judgment, without destroying it altogether.","...","The accused was not suffering at the time of the events, and is not currently suffering, from a mental disorder or a severe mental disturbance or defect making her incapable of controlling her actions.\u201d","28.In an order of 17 June 2008 the Indictments Division (chambre des mises en accusation) of the Brussels Court of Appeal, upholding an order made by the investigating judge on 19 May 2008, committed the applicant to stand trial in the Assize Court for the following offence:","\u201c... in Nivelles, on 28 February 2007,","having knowingly, intentionally and with premeditation, killed the following persons:","- [Y.M.], born on 13 August 1992;","- [N.M.], born on 13 February 1995;","- [My.M.], born on 20 April 1997;","- [Mi.M.], born on 20 May 1999;","- and [Me.M.], born on 9 August 2003.\u201d","29.The indictment of 19 October 2008, drawn up by the Principal Public Prosecutor, ran to fifty-one pages and gave an account of the precise sequence of events, the steps taken and evidence obtained during the investigation, and the forensic medical reports; a substantial part of it also focused on the applicant\u2019s personal history and family life and the motives and reasons that had prompted her to carry out the killings, particularly in the light of the expert assessments of her psychological and mental state.","30.The applicant\u2019s trial took place in the Assize Court of the province of Walloon Brabant from 8 to 19 December 2008. At the start of the trial the indictment was read out by the Advocate-General representing the prosecution, and the nature of the offence forming the basis of the charge and any circumstances that might aggravate or mitigate the sentence were likewise indicated.","31.While giving testimony during the trial in the Assize Court, Dr D.V. mentioned the existence of the two letters dated 13 and 27 February 2007 which the applicant had addressed to him. He produced them in court, thus disclosing them for the first time in the proceedings. In view of this new evidence, the President of the Assize Court duly instructed the panel of three psychiatrists, G., B. and M., who had already been involved at the investigation stage and had already confirmed their findings orally before the Assize Court, to produce a further report.","32.On 14 December 2008 the panel of three psychiatrists adopted a report in which they expressed a unanimous opinion. They began by noting by way of introduction:","\u201c[The first question, concerning the applicant\u2019s ability to control her actions at the time of the events and at present] is regularly the most difficult and controversial because of the \u2018all or nothing\u2019 nature of the answer that has to be given regarding inability to control one\u2019s actions, so much so that some psychiatrists have for that reason declined to produce expert reports in criminal cases. A total loss of control over one\u2019s actions is absolutely clear only in certain cases, such as delusional psychosis (\u2018dementia\u2019). In other cases, it is more debatable and the personal conviction of the experts will be influenced by the presence of certain indicators. Their conclusions, in concise form, must give precise answers to the questions set out in the instructions. These answers reflect the experts\u2019 personal conviction after carrying out the various written procedures. They are only ever an informed opinion, and not an absolute scientific truth.\u201d","The experts went on to make the following findings in particular:","\u201cThe letter of 13 February [2007] suggests all the signs of melancholic major depression. ... These melancholic states are grounds for emergency hospital admission, or observation, where necessary. ... In the second letter, although in terms of content she unequivocally expresses her anxiety in relation to a suicide where \u2018I will take my children with me, because there is no longer any future\u2019, in terms of meaning she is clearly asking for help, apparently foreseeing her inability to control her future actions. ... These documents thus demonstrate beyond doubt that MsLhermitte no longer felt capable of controlling her actions ... it has always been clear that there was mental disturbance ... new evidence [warrants] the firm conviction that at the time of the events, Ms Lhermitte was incapable of controlling her actions on account of a severe mental disturbance. ... Ms Lhermitte developed a severe state of anxiety and depression ... [and] a transient dissociative state of depersonalisation, causing her to perform acts of extreme violence. Only operational thought remains; reflective consciousness is momentarily lost. ... Currently ... she remains fragile and there is still a chance, particularly because mourning is impossible, that she will experience a further episode of mental disturbance making her incapable of controlling her actions: the possibility remains that she may attempt suicide ...","CONCLUSIONS","The mental examination of Genevi\u00e8ve Lhermitte prompts the following conclusion:","The accused was suffering at the time of the events from a severe mental disturbance making her incapable of controlling her actions, and is currently suffering from a severe mental disturbance warranting long-term treatment. ...\u201d","33.The experts presented their report during the trial, on 16 December 2008.","34.On 18 December 2008, after the submissions of the prosecution and the parties had been heard, the jury was called to answer the following fivequestions put to it by the court\u2019s president:","\u201c1st question (principal question as to guilt)","Is the accused Genevi\u00e8ve Lhermitte, present before this court, guilty of having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] in Nivelles on 28 February 2007?","2nd question (subsidiary to the 1st question, to be answered by the jury only if it has answered the 1st question in the affirmative)","Is it established that the intentional homicide referred to in the first question was premeditated?","3rd question (principal alternative as to the commission of an act classified as a serious crime, to be answered by the jury only if it has answered the 1st question in the negative)","Is it established that the accused Genevi\u00e8ve Lhermitte, present before this court, committed the act classified as a serious crime of having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] in Nivelles on 28 February 2007?","4th question (subsidiary to the 3rd question, to be answered by the jury only if it has answered the 3rd question in the affirmative)","Is it established that the act classified as a serious crime referred to in the 3rdquestion was premeditated?","5th question (principal question as to social protection, concerning the accused\u2019s current mental state, to be answered by the jury only if it has answered the 1stquestion in the affirmative or the 3rd question in the affirmative)","Is it established that the accused Genevi\u00e8ve Lhermitte, present before this court, is suffering either from a mental disorder or from a severe mental disturbance or defect making her incapable of controlling her actions?\u201d","35.Counsel for the applicant did not raise any objections to these questions. The following day, after withdrawing to deliberate on their own without the judges, the members of the jury answered \u201cyes\u201d to the first twoquestions, concerning the applicant\u2019s guilt, and \u201cno\u201d to the last question, concerning her current mental state.","36.Subsequently, the Assize Court, composed of both the three judges and the jury, deliberated on the sentence to be imposed. In a judgment of 19December 2008 it took note of the guilty verdict reached by the jury alone and sentenced the applicant to life imprisonment. In conformity with Article 364, final paragraph, of the Code of Criminal Procedure, the Assize Court provided the following reasons for the punishment:","\u201cThe accused\u2019s heavy family responsibilities and her painful feelings of isolation and dependence may account for a legitimate desire for greater personal freedom. Her mental fragility, depression and character no doubt made it more difficult to handle this desire and, through dialogue, to seek possible improvements within the limits of her specific circumstances, taking into account all those close to her.","However, neither those factors, nor even a wish to escape from what she considered a dead-end situation through suicide, nor a lack of appropriate help, can provide a sufficient explanation for the acts of extreme violence which she resolved to commit, and which she carried out in cold blood. ...","Regard being had to the specific circumstances relating both to the accused\u2019s character and to her living environment, the genuine difficulties experienced by her do not constitute mitigating factors, given the extremely serious nature of her acts.\u201d","37.As an ancillary penalty, the applicant was stripped of all titles, ranks and functions she held and was permanently deprived of certain rights in accordance with Articles 19 and 31 of the Criminal Code as in force at the material time. Lastly, the judgment was to be printed and publicly displayed in the municipality where the crime had been committed, in accordance with Article 18 of the Criminal Code.","38.On 8 January 2009 the applicant appealed on points of law, raising the same complaints as those submitted before the Court.","39.On 6 May 2009 the Court of Cassation dismissed the applicant\u2019s appeal. As regards the fact that the questions to the jury had not dealt with each of the five homicides separately but had considered them as a whole, it observed in particular that the parties had agreed to the wording of the questions put to the jury. It also pointed out that the requirement for the verdict to take the form of a simple \u201cyes\/no\u201d answer to the questions put to the jury was laid down in Article 348 of the Code of Criminal Procedure. In response to the applicant\u2019s argument that no reasons had been given for the jury\u2019s disagreement with the experts\u2019 unanimous opinion that she had been suffering from a severe mental disturbance making her incapable of controlling her actions at the material time and at the time of the trial, the Court of Cassation held:","\u201cIn noting the accused\u2019s cold-blooded manner and her determination to carry out her crimes, the judgment indicates the reason why the Assize Court did not accept that the perpetrator had been suffering from any mental disturbance making her incapable of controlling her actions at the time of the events.","Furthermore, the judgment notes that the appellant\u2019s attitude demonstrates a lack of awareness of her responsibility, which she will be able to remedy through self-reflection while serving the sentence.","The judgment therefore states the reasons why the conditions for the application of the Social Protection Act are not satisfied.\u201d"],"17":["5.The applicant was born in 1971 and lives in Helsinki.","6.The applicant and her partner began to cohabit in 2003. Their daughter was born in November 2004. In the spring of 2006 the applicant felt that, in her view, the child\u2019s father was behaving strangely with the child and that the child did not want to stay at home alone with her father. She also started to fear for her own and her child\u2019s safety as the father was, in her view, violent. In May 2006 the applicant and her daughter left the child\u2019s father.","A.First set of proceedings concerning custody and contact rights","7.In July 2006 the child\u2019s father initiated custody and contact rights proceedings vis-\u00e0-vis his daughter.","8.In August 2006 the Kouvola District Court (k\u00e4r\u00e4j\u00e4oikeus, tingsr\u00e4tten) gave an interim decision that the father was to meet his daughter for two hours every other weekend under supervision. This arrangement continued for about a year but was disrupted for some time in 2007. According to the applicant, the child was often restless and talked strangely after the meetings with her father.","9.On 15 June 2007 the Kouvola District Court gave another interim decision according to which the father had a right to meet with his daughter for 2 to 4 hours at a time without supervision.","10.On 21 August 2007 the Kouvola District Court held an oral hearing about the custody and contact rights.","11.On 4 September 2007 the Kouvola District Court gave both parents joint custody of the child. She was to live with her mother and to meet her father every other weekend from Friday to Sunday and during the holidays, unsupervised. The meetings were, however, temporarily discontinued for the duration of the pre-trial investigation (see below). On 9 January 2008 the Kouvola Appeal Court upheld the District Court\u2019s decision.","B.First involvement of the child welfare authorities and the police","12.The applicant claimed that after the third unsupervised visit with the father in August 2007, her almost three-year-old daughter\u2019s behaviour changed radically and she was showing strong symptoms. The child was using vulgar language and was restless and anxious. The child had told her mother about things that her father did to her. She kept repeating these issues and suffered from increasingly bad nightmares. The applicant contacted a child psychiatrist. On 16 August 2007 she contacted the child welfare authorities in Helsinki reporting her suspicions of sexual abuse.","13.On 29 August 2007 the child welfare authorities reported the matter to the police. They recommended that the meetings with the father be discontinued for the duration of the investigation.","14.On 5 September 2007 the pre-trial investigation conducted by the Helsinki Police Department commenced. Both parents were questioned. On 14 September 2007 the Forensic Child and Adolescent Psychiatry Centre received an official request for assistance from the Helsinki Police Department. At the time the child was two years and ten months old. The Centre replied that children under three years old could not be interviewed within the forensic-psychological interview framework as it was not possible to obtain reliable information on possible sexual abuse from children under three years of age, especially in situations involving custody disputes. Such interviews became effective only in respect of children aged four years or more.","15.On 20 September 2007 a physiological examination was carried out to determine whether the child showed any signs or symptoms of the alleged abuse, but no such external signs were revealed. The pre-trial investigation was concluded on 15 October 2007 as there was no appearance of any crime.","16.After having received information about the conclusion of the pre\u2011trial investigation, the applicant contacted the Forensic Child and Adolescent Psychiatry Centre on 18 October 2007 and expressed her surprise that no psychological assessment had been conducted in the matter.","17.In a telephone conversation of 19 October 2007 the applicant expressed to the social worker her fear that her child continued to be at risk of being subjected to sexual abuse when meeting her father and insisted on another investigation. She was concerned that the pre-trial investigation by the police had not been complete and that the social workers would be responsible if something happened to her child while the meetings with the father were not supervised. The social worker in turn explained to the applicant that the pre\u2011trial investigation had not brought to light any somatic signs or symptoms that would suggest sexual abuse of the child. Moreover, concerning the visiting rights, the social worker explained that the decision of 4 September 2007 by the Kouvola District Court was still in force and that if the applicant was not satisfied with it, she would have to appeal against it in courts of law instead of complaining about it to the child welfare authorities. However, the applicant insisted on making the second report to the child welfare authorities, claiming that she had been threatened with loss of her custody rights if she did not allow the meetings with the father. The father of the child received information about this report from the police.","C.Further involvement of the child welfare authorities and the police","18.On 18 January 2008 the applicant submitted another child welfare report and the second report to the police, insisting on another investigation and stating that she suspected that someone was abusing her child during visits to the child\u2019s father. She also reported the matter to the social workers in Helsinki.","19.On 25 and 28 January 2008 respectively the applicant took her daughter to an emergency clinic for examination as she had trouble sleeping and was behaving oddly. No somatic signs or symptoms of sexual abuse were found.","20.The Kouvola Police Department started to investigate the matter. As the applicant had taken the child to a doctor on 25 and 28 January 2008, no new physical examination was carried out. The pre-trial investigation was concluded on 4 May 2008 as there was no appearance of any crime.","D.Administrative complaints","21.On 18 February 2008 the applicant lodged a complaint with the National Authority for Medico-legal Affairs (Terveydenhuollon oikeusturvakeskus, R\u00e4ttsskyddscentralen f\u00f6r h\u00e4lsov\u00e5rden) about the fact that the child had not been heard at all during the pre-trial investigation in autumn 2007. The case was transferred ex officio to the regional State Provincial Office (l\u00e4\u00e4ninhallitus, l\u00e4nsstyrelsen).","22.On 18 February 2008 the applicant also lodged a complaint with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman), asking him to investigate why the police did not hear her child during the pre-trial investigation.","23.On 16 April 2008 the Parliamentary Ombudsman decided not to take any measures as the police investigation was still pending before the Kouvola Police (see paragraph 20 above). He did not have competence to give orders to the police concerning the investigation of the matter as he could not examine the actions of private individuals.","24.On 24 November 2008 the regional State Provincial Office found that there was no minimum age for hearing a child and that the three-year age\u2011limit for child psychiatric interviews was only a recommendation. The child had only been two years and ten months old at the time of the first police investigation. No new physical examination had been carried out during the second pre-trial investigation as such an examination had been carried out on 25 and 28 January 2008. The Office decided to take no action in the applicant\u2019s case.","E.Defamation proceedings","25.On an unspecified date, the father of the child asked the police to investigate whether the applicant had defamed him as she had given false information about him to the social worker on 19 October 2007, claiming that the child was in danger of being sexually abused by her father during their upcoming meetings (see paragraph 17 above). He claimed that these allegations were not true and that the applicant\u2019s motive for such accusations was that she wanted to have sole custody of the child and hamper the meetings between the father and the child.","26.On 17 February 2009 the Public Prosecutor pressed charges against the applicant for having insisted on 19 October 2007 that the child was in danger of being sexually abused by her father after the police had already investigated the matter and, on 15 October 2007, found no appearance of any crime.","27.On 11 September 2009 the Helsinki District Court convicted the applicant of defamation and sentenced her to 45 day-fines, amounting to 630 euros (EUR). She was ordered to pay the father EUR 1,000 in non\u2011pecuniary compensation and his costs and expenses amounting to EUR1,885.66. The court\u2019s reasoning was the following:","\u201cThe insinuation made by M.P. and referred to in the charges cannot be understood to refer to any other person than [the father of the child] and it was made in a situation in which M.P. knew about the decision of the Helsinki Police Department to stop investigating the suspected sexual abuse of a child, which investigation had been initiated solely on the basis of the information submitted by her. According to the decision, the investigation did not reveal any such evidence on the basis of which the threshold of \u201creason to suspect\u201d would have been attained. The decision refers to the somatic examination of the child, requested by the police and conducted on 20 September 2007 by a specialist in paediatrics at which M.P. was also present. According to the medical certificate, the girl\u2019s somatic status was normal and there were no external signs of sexual abuse.","From the medical certificate of 15 October 2008, which was admitted as written evidence, it appears that the meetings between the father and the child had been supervised until 16 June 2007 and that thereafter until the filing of the police report on 29 August 2007 and the freezing of the meetings, there had been unsupervised day meetings only three times, lasting four hours each. [The father of the child] stated that out of these few meetings one meeting had taken place in an amusement park, which was not disputed by M.P. M.P. stated that the sexually-coloured talk of the child had started already during the supervised visits. At that time the child was less than three years old.","On the sole basis of the meeting circumstances and the medical examination, M.P. could not have had strong grounds to consider that her insinuation of the crime was true, even if the child had said what she was alleged to have said. Nor could the child\u2019s other, more general symptoms have given sufficient confirmation of her insinuation.","When assessing whether one is guilty of defamation, it is irrelevant that the act has been committed by pursuing an earlier report to child welfare authorities and that it has been made to a public official who is bound by confidentiality. Even in a child welfare report one must not give untruthful and smearing information or insinuations about others. M.P. must have understood that the insinuation was of such a kind that in any event it would come to the knowledge of [the child\u2019s father] and that its content, being almost of the worst kind, was bound to cause him suffering.","...","Ignorance of legal provisions does not eliminate the punishability of an act. Taking into account what has been said above about the circumstances of the case and the nature of the criminal insinuation, there is no basis for considering that M.P.\u2019s act could be regarded as manifestly excusable due to a mistake.","On the basis of the grounds expressed above, the District Court considers that M.P. did not have any such reasons to make an insinuation towards [the father of the child] that she would have had a reasoned ground to do so without defaming him.\u201d","28.By letter dated 12 October 2009 the applicant appealed against the judgment of the District Court to the Helsinki Appeal Court (hovioikeus, hovr\u00e4tten). She claimed only to have voiced her previous concern as the child was not heard at all during the concluded pre-trial investigation. Her concerns were not directed at the father but at the fact that a danger to the child\u2019s health still existed. It had been the child welfare authorities who had qualified these concerns as relating to sexual abuse. Sexual abuse did not always leave physical marks which could be revealed by medical examination but it was a grave procedural mistake not to interview the child during the pre-trial investigation. She considered this mistake to be so substantial that the danger to her child\u2019s health still existed despite the outcome of the investigation. She also referred to the case Juppala v.Finland, no. 18620\/03, 2 December 2008.","29.On 5 January 2011, after having held an oral hearing, the Helsinki Appeal Court upheld the District Court judgment. The court found the following:","\u201cOn the basis of the oral hearing held, the Appeal Court has no reason to assess the evidence differently than the District Court. The acts committed by M.P. [...] fulfil the constituent elements of defamation, criminalised by Chapter 24, section 9, of the Penal Code. The fact that the insinuation was made to a public official who is bound by confidentiality is not relevant when assessing the constituent elements, as appears from the Supreme Court precedent 2006:10. M.P. [...] did not have sufficiently strong grounds to hold the information true in a situation where [she] knew that the pre-trial investigation into [the child\u2019s father] had terminated. Although child protection considerations have to be taken into account, a conviction in these circumstances is not in contradiction with freedom of expression which is protected as a fundamental and human right. M.P. has considered that she is free from criminal liability under Chapter 4, section 2, of the Penal Code due to a mistake as to the unlawfulness of her act as she had mistakenly regarded her act as lawful because of a reason similar to erroneous advice given by public officials. The pre\u2011trial investigation had, however, been started solely on the basis of information given by M.P. and this investigation was already terminated, M.P. being aware of it, before the commission of the present act. Therefore there are no grounds to apply the provision concerning mistake as to the unlawfulness of the act. Nor is there any reason to change the District Court judgment as far as the conviction is concerned.\u201d","30.By letter dated 7 March 2011 the applicant appealed to the Supreme Court (korkein oikeus, h\u00f6gsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court.","31.On 14 December 2011 the Supreme Court refused the applicant leave to appeal.","F.Second set of proceedings concerning custody and contact rights","32.On 18 March 2010 the father of the child requested the Helsinki District Court to order that the child live with him.","33.On 25 January 2011 the Helsinki District Court ordered that the child was to live with her father in Kouvola. This decision was upheld by the Helsinki Appeal Court on 2 December 2011. On 11 May 2012 the Supreme Court refused the applicant leave to appeal.","34.The applicant has complained to the Court about these proceedings in a separate application (see application no. 71785\/12 M.P. and E.B. v.Finland) which was declared inadmissible on 17 April 2014.","G.Most recent administrative appeals","35.On an unspecified date the applicant asked the Ministry of the Interior (sis\u00e4asiainministeri\u00f6, inrikesministeriet) to investigate whether the decision not to hear the child was acceptable. On 7 May 2012 the Ministry of the Interior transferred the matter to the National Police Board (Poliisihallitus, Polisstyrelsen).","36.On 3 August 2012 the National Police Board found that police conduct in the matter had been appropriate. The police had conducted an adequate pre-trial investigation without leaving any issues unclarified."],"18":["9.The applicant was born in 1959 and lives in Baktal\u00f3r\u00e1nth\u00e1za.","10.Between 1 May 1975 and 14 July 1997 the applicant was employed and made the statutory contributions to the social-security scheme. Subsequently, she was in receipt of unemployment benefit from 15September 1997 until 9 September 1998.","11.In response to a request lodged on 16 October 2001, the applicant was granted a disability pension (rokkants\u00e1gi nyugd\u00edj) later that same year on the basis of a retrospective finding that she had lost, as of 1 April 2001, 67% of her capacity to work on account of various ailments. This assessment was maintained in 2003, 2006 and 2007.","12.As of 2008 the legislation on the methodology used to assess health impairment in occupational contexts changed. In application of the new methodology, the applicant\u2019s disability was assessed by an expert at 40% on 1December 2009. Without envisaging any procedure for rehabilitation, the assessment panel scheduled the next check-up of her medical status for 2012.","13.The Government submitted that, under the new methodology, the applicant\u2019s previous condition of 67% loss of working capacity would have corresponded to 54% overall health impairment. Since, however, she was found to have only 40% health impairment, her condition had to be deemed to have improved in the intervening period.","The applicant submitted that the connection suggested by the Government between the scores of 67% in the old system and 54% in the new system was not based on any legal text. In her submission, her condition had not improved at all; the difference in scores was solely a consequence of changing the methodology used.","14.As a consequence of the applicant\u2019s newly assessed 40% level of disability, on 1February 2010 the relevant pension insurance directorate withdrew her entitlement to the disability pension. The applicant appealed against that decision. On an unspecified date, the decision was upheld by the second-instance pension insurance authority.","At the relevant time the monthly amount of the applicant\u2019s disability pension was 60,975Hungarian forints (HUF), approximately 200 euros (EUR).","On 25 March 2010 the applicant brought an action before the Ny\u00edregyh\u00e1za Labour Court, challenging the administrative decision.","15.The Ny\u00edregyh\u00e1za Labour Court heard the case, and appointed an expert with a view to obtaining an opinion as to the reasons for the difference in the scores. In an opinion of 16 February 2011, the expert submitted that the old score of 67%, as well as the new one of 40%, were correct under the respective methodologies; at any rate, the applicant\u2019s condition had not significantly improved since 2007.","16.Observing that the applicant had accumulated 23 years and 71 days of service time, the court retained the disability score of 40% and dismissed her action on 1April 2011. The applicant was ordered to reimburse the amounts received after 1 February 2010. The court noted that the applicant\u2019s next medical assessment was due in 2012. It drew her attention to the possibility of making a renewed application for disability pension should her health deteriorate.","17.In 2011 the applicant requested another assessment of her disability. On 5 September 2011 the first-instance authority assessed it at 45%, scheduling the next assessment for September 2014. The second-instance authority changed this score to 50% on 13 December 2011, with a reassessment due in March 2015. Such a level would have entitled her to disability pension had rehabilitation not been possible. However, this time the assessment panel envisaged the applicant\u2019s complex rehabilitation within a 36-month time-frame, and recommended that she be entitled to rehabilitation allowance (rehabilit\u00e1ci\u00f3s j\u00e1rad\u00e9k). Nevertheless, no such rehabilitation took place, and the applicant did not receive rehabilitation allowance.","18.As of 1 January 2012, a new law on disability and related benefits (Act no.CXCI of 2011) entered into force. It introduced additional eligibility criteria. In particular, instead of fulfilling a service period as required by the former legislation, the persons concerned had to have at least 1,095 days covered by social security in the five years preceding the submission of their requests. Individuals who did not meet this requirement could nevertheless qualify if they had no interruption of social cover exceeding 30 days throughout their careers, or if they were in receipt of a disability pension or rehabilitation allowance on 31 December 2011.","19.On 20 February 2012 the applicant submitted another request for disability allowance (rokkants\u00e1gi ell\u00e1t\u00e1s). Her condition was assessed in April 2012, leading to the finding of 50% disability. On 5June 2012 her request was dismissed because she did not have the requisite period of social cover. Rehabilitation was not envisaged. The next assessment was scheduled for April 2014.","20.Between 1 July and 7 August 2012 the applicant was employed by the Mayor\u2019s Office in Baktal\u00f3r\u00e1nth\u00e1za.","21.On 15 August 2012 the applicant submitted a fresh request for disability pension under the new law. She underwent another assessment, during which her degree of disability was again established at 50%. Rehabilitation was not envisaged.","22.In principle, such a level of disability would have entitled the applicant to a disability allowance under the new system. However, since her disability pension had been terminated in February 2010 (that is, she was not in receipt of a disability pension or a rehabilitation allowance on 31December 2011) and, moreover, she had not accumulated the requisite number of days of social-security cover or demonstrated uninterrupted social cover, she was not eligible, under any title, for a disability allowance under the new system. Instead of the requisite 1,095 days covered by social security in the five preceding years, the applicant had been covered for947days. According to the Government, had the law not been so amended, the applicant would again have become eligible for a disability pension, since her health impairment was again assessed as exceeding the relevant threshold in 2012.","23.The applicant\u2019s request was refused by the relevant authority of Szabolcs-Szatm\u00e1r-Bereg County on 23 November 2012 and, on appeal, by the National Rehabilitation and Social Welfare Authority on 27February 2013. On 27 March 2013 the applicant filed an action with the Ny\u00edregyh\u00e1za Administrative and Labour Court, challenging these administrative decisions. On 20 June 2013 the court dismissed her case. This judgment was not subject to appeal.","24.From 1 January 2014 the impugned legislative criteria were amended with a view to extending eligibility to those who have accumulated either 2,555 days of social-security cover over ten years or 3,650days over fifteen years. However, the applicant does not meet these criteria either.","25.In 2011 and 2012 the applicant received a monthly housing allowance from the local municipality, in the amount of HUF4,100 (EUR14) in 2011 and HUF 5,400 (EUR 18) in 2012. The applicant also applied for the basic welfare allowance (rendszeres szoci\u00e1lis seg\u00e9ly), but her request was denied because she did not meet the statutory requirements."],"19":["5.The applicant was born in 1967 and lives in Prague.","6.In the period between 30 December 2005 and 8 June 2006 the applicant was found to have addressed emails to C., his former partner, stating, among other things:","\u201c... It is this [C.] that I wish to see; I don\u2019t want to meet the other one again. I gave up the possibility of keeping her at bay by any means (such as pictures of her injecting drugs, pictures of her offering prostitution services or pictures of her masturbating), because I have so much respect for her that I did not want to spend any more hours trying to pull off dirty tricks on her, naively believing that the second time I would be able to open her eyes to the truth. ...","You say that you are scared of me. Well, get rid of that fear finally; otherwise we cannot even be very good friends ...","I suggest we draw a line under the past, particularly the evil period, and turn over a new leaf. In the same spirit, I suggest not talking about the evil things ever again; otherwise you will not be able to get rid of your fear ...","... Are we really only able to talk to each other when I yell at you or tie you up or abduct you in my car, or do I have to think up a similar dirty trick? Do I have to become evil before you can hear me out and are willing to talk to me? You are not going to believe me, but it hurt me that I had to lower myself to that level. ...","It\u2019s a pity that one has to abduct you or tie you up, in other words simply use means of physical restraint in order to make you listen and carefully think about and evaluate what they have told you. I would be happier if you could do so without such actions ...","... promise made in the car ...","Because I have not humiliated you either, although I had a good opportunity to do so. I could have taken pictures of you, forced you to make a porn movie and sent it to all those people in England. I could have forced you to sign whatever I wished for, and I know that you would forced yourself to sign whatever I wished and I know that you would have done it at that moment. Do not wonder about the things I am able to think about; wonder about why I have not done so ...","I will tell her everything about what I have done to you as well as why I have done it; I will give her your contact details, and maybe she can help us become closer ...","I told the psychologist everything about what I have done to you, ... how I was bad to you, including the threats I have recently made in order to make you hear me out. When I told her about how I tied you up, she replied that I must not do that to you ever again and that I should be glad that you have not turned me in ...","On Monday, it will be one month since that last time I threatened you and intimidated you ...","... all my threats are really just my defensive response to various feelings of injustice ...","When you were at my place, I could have done whatever I wanted with you; but I\u2019m not like that, it is hard to hurt you in any way because I love you ...","If you cannot accept it, I will not do anything more than what I have repeated a thousand times when we made that agreement at Christmas ...","I will do or pay someone to do something that will harm you. Ranging from pettiness to heavy force that would be in violation of the law ...","[C.], I\u2019m slowly starting to realise that my feelings for you are heading towards freezing point and hatred is starting to prevail ...\u201d","7.On 7 June 2006 C. made a statement about the applicant\u2019s threatening telephone calls and emails at the police station in Surrey (the United Kingdom). On the next day, upon police advice, she changed her telephone number and email address.","8.On 23 June 2006 the Prague 1 District Prosecutor\u2019s Office (obvodn\u00ed st\u00e1tn\u00ed z\u00e1stupce) received an anonymous criminal complaint containing allegations of the sexual abuse of children. The female informer indicated that a certain C. had confessed that she had participated in sexual abuse whilst working as an au pair in the United Kingdom.","9.In July 2006 several individuals including the applicant were questioned in connection with the criminal investigation into the criminal complaint.","10.On 13 July 2006 C.\u2019s mother made a statement at the police station in Prague 1 according to which the applicant had tied C. up in his apartment and had shown her a bag in which he intended to carry her away. She stated, in particular, that:","\u201cOn 6 June 2006, my daughter called me, asking me whether I had time and that maybe I should sit down. She informed me that she had not been dating [L.], as she had claimed the entire time she dated [the applicant], but that instead she had been dating [the applicant], who had allegedly threatened and was currently still threatening her with physical annihilation if she would not resume her relationship with him; he had also demanded that [C.] continue to have sexual relations with him. She decided to tell me about the entire matter only after he had allegedly sent her an email with the words ... \u2018and don\u2019t forget that you have a family \u2013 mother, brother \u2013 back at home\u2019 ... Given her experience of him, [C.] considers it very likely that this threat could be carried out by [the applicant]. Since that time she had changed her email address and phone number; she also informed me that she had changed her place of residence in England because she did not want to have contact with him any more. In addition, my daughter informed me that she had also reported the entire matter in England, where she had been questioned about the matter after suffering a mental breakdown there. This condition of my daughter was caused by the actions of the [applicant], who had continuously been sending her emails and threatening her. My daughter said that she had these emails at her disposal ...","In addition, I learned from my daughter that [the applicant], during the period when he was communicating and was able to communicate with her, had told her that she could come back to him, that she was in no danger from him because he had started seeing a psychologist ... in order to reduce or eradicate his violent behaviour, which he was aware of and had been using against her \u2013 against [C.] ...\u201d","11.On 19 July 2006 C.\u2019s female friend D.B. stated that, in a letter of 28January 2006, C. had confided in her about the forcible coercion by the applicant, which had taken place on 29 December 2005. She further stated that, at about the same time, C. had called her from the United Kingdom, telling her that the applicant had been menacing her and her family with threats to their lives. In addition, she said that the applicant had contacted her by SMS, by phone and by email. She submitted the letter to the police.","12.On 7 August 2006 the police asked the Prague 6 District Prosecutor\u2019s Office to apply for an \u201curgent or non-repeatable measure\u201d (neodkladn\u00fd nebo neopakovateln\u00fd \u00fakon) pursuant to Article 158a of the Code of Criminal Procedure (hereinafter \u201cthe CCP\u201d), and the following day an interview with C. was conducted. The request included a very detailed justification explaining that the applicant had forcibly coerced C. in the Czech Republic as well as in the United Kingdom, where she had filed a criminal complaint. At the time of making that request, C. had been living and working in the United Kingdom but arrived back in the Czech Republic for the purpose of her interview on 8August 2006. Her employment and the distance between the place of her employment and Prague, where she was interviewed, made it impossible for her to travel more often to the Czech Republic, where she did not feel safe anyway, given the prior events.","13.On the same day, a prosecutor at the District Prosecutor\u2019s Office asked the Prague 6 District Court (obvodn\u00ed soud) to secure the presence of a judge during C.\u2019s interview, which was to be carried out as an urgent and non-repeatable measure.","14.On 8 August 2006 the police interviewed C. as a witness in the presence of a judge pursuant to Article 158a of the CCP. At that time, the applicant had not been charged and was therefore not present at the interview. C. stated at the outset that:","\u201c... [S]ince September 2005 I have been working as an au pair in the United Kingdom. ... I arrived in the Czech Republic on the basis of an agreement with the police authorities of [the Czech Republic] and upon the advice of my employer, ..., who is a police officer, after the actions of [the applicant] reached such an intensity that I started to be really scared.\u201d","She further stated that the applicant had not come to terms with the fact that she had broken off their intimate relationship. She described in detail the acts of intimidation conducted by him in the form of phone calls, SMS messages, emails, letters and verbal threats. She also stated that on 29December 2005, between 12 noon and 4.30 p.m., she had been present in the applicant\u2019s flat, where he had tied her to the bed, partially undressed the lower part of her body, and threatened to drug her with heroin, to carry her out from the flat in a large bag and to hand her over to unspecified persons to be trafficked to Turkey for 100,000 CZK (EUR 3,622) unless she promised to resume their intimate relationship, which she had broken off on 25 December 2005. According to her, the applicant had threatened to take pornographic pictures of her or to record a porn movie with her, which he would then send to her employer in the United Kingdom and the company which had acted as intermediary in finding her a job in the United Kingdom. Furthermore, on 1 January 2006 they had been in a car together and the applicant had threatened to throw C. into a snowdrift and drive off, or to kill both her and himself in a deliberate car accident. C. also stated that the applicant had searched through her mobile phone contacts to find the number of her female friend D.B., whom he had contacted at a later date. C. wrote an explanatory letter to D.B. She had also phoned her mother and had confided in her about the intimidation by the applicant. C. also stated that the applicant was seeing a psychotherapist. As the intimidation continued, C. filed a criminal complaint at a police station in the United Kingdom on 7June 2006.","She also stated:","\u201cUpon the advice of the police in the United Kingdom, on 8 June 2006 I changed my mail address, after 9 June 2006 I also changed the number of my mobile phone and at the advice of my employer, I have also the confidential employment that [the applicant] or his eventual messengers could not contact me. ...","...","I was asked to make comment on the email notice which was made anonymously at the Prague 1 District Prosecutor\u2019s Office on 23 June 2006 at 10.48 a.m.. ... I do not know any girl who would meet me in a club in the United Kingdom; I do not know any such girl who would know the information about me, which were written in this denouncement. ... The information indicated in this denouncement corresponded to what [the applicant] knows about me, what I foolishly told him in the past.\u201d","At the end of the interview, C. submitted copies of her email exchanges with the applicant and a tape recording of his voice messages, and made available SMS messages on her mobile phone for transcription.","15.On 25 October 2006 a judge at the Prague 6 District Court ordered the compilation of a list of incoming and outgoing telephone calls from the applicant\u2019s mobile phone between 20December 2005 and 31 July 2006. On 26 October 2006 he ordered the compilation of a list of communications executed from three mail-boxes between 14 February and 30June 2006 and between 1 January and 30 June 2006, respectively. On 31October 2006 the judge ordered the compilation of a list of communications carried out from several of the applicant\u2019s other mail-boxes in the period from 25December 2005 to 30 June 2006, and also the provision of information on the total number of communications logged in these mailboxes between 25December 2005 and 18 October 2006. On the same day, the judge ordered the compilation of a list of outgoing telephone calls from the applicant\u2019s land line on 9 June 2006 between 11 a.m and 3 p.m.","16.On 5 April 2007 criminal proceedings were initiated against the applicant for unlawful restraint (omezov\u00e1n\u00ed osobn\u00ed svobody) in concurrence with coercion (vyd\u00edr\u00e1n\u00ed), defamation (pomluva) and false accusation (k\u0159iv\u00e9 obvin\u011bn\u00ed).","17.In April 2007 a search was conducted in both the applicant\u2019s flat and the commercial premises where he ran his business, upon the search orders issued on 16 and 18 April 2007 respectively. The applicant was arrested on 20 April 2007 and was charged with unlawful restrain, coercion, defamation and false accusation, and released afterwards.","18.The police continued to gather evidence during 2007 and 2008. They obtained an expert psychiatric opinion on the applicant\u2019s health, analysed his computer, carried out a search of his flat and questioned a number of witnesses.","19.On 27 April 2007 C.\u2019s mother was interviewed. She stated, in particular, that:","\u201cOn 6 June 2006 ... my daughter called me at work, started crying on the phone ... She told me that ... she had been dating [the applicant] the entire time. [She] continued crying a lot, which made me realise that this was not all there was to it. It made me feel physically sick. She continued the story, saying that when she was at home for Christmas [the applicant] had abducted her. She had agreed to meet him somewhere in Prague they met normally and agreed to go out for a drink in the evening. But he said that he needed to change clothes so they would first drive to his place and then go out later in the evening. In the apartment, however, he tied her up and menaced her with horrible threats. At that time, she did not tell me any details. ... At the same time, during our phone conversation we came onto the topic of the threatening emails that [the applicant] had been sending her the entire time. She said that she had not paid much attention to them but that lately it had got completely out of hand and ... he had started threatening to kill her and, finally, had sent her an email saying that she should not forget that she had her entire family in Prague, specifically mentioning her mother and brother, and that she should not forget that he knew where we lived.","...","I personally contacted the psychologist ... She confirmed that my daughter had phoned her as well. She said that she had advised her ... to immediately cut off all contact with [the applicant] ... I told her about what [the applicant] had done to my daughter at Christmas 2005 and she essentially replied that [the applicant] had also told her about it and that she had strictly forbidden him to ever do such a thing again ...","[C.] told me that in December 2005, when she was in his flat, [the applicant] had tied her up, threatened to kill her, to traffic her, to make a movie of her taking drugs or a porn movie; he had also searched through her handbag and taken a piece of paper with her home address or had written it down, had searched through the address book in her mobile phone and had accessed her electronic mail box after forcing her to give him the password ...\u201d","20.The investigation having been concluded in May 2008, the applicant was indicted for coercion under Article 235 \u00a7\u00a7 1 and 2 of the Criminal Code on 16 June 2008. This legal classification of his criminal acts was more serious than that indicated in the notice served on him on 20 April 2007, when he had been charged with deprivation of personal liberty under Article231 \u00a7\u00a7 1 and 2 of the Criminal Code in conjunction with coercion under Article 235 \u00a7 1 of the Criminal Code. According to the applicant, he had not been informed about it, contrary to Article 176 \u00a7 2 of the CCP.","21.According to the Government, on 10 September 2008 C. apologised through her mother for not being able to attend the hearing before the District Court.","22.The trial started on 14 October 2008. As C. apologised for not attending the main hearing, the statement made by her on 8 August 2006 was therefore read out. The applicant claimed that C.\u2019s residence abroad had not been a sufficient reason for carrying out her interview as an urgent measure and that her statement should not be read out at the trial. He argued that the conditions laid down in Article 211 \u00a7 2 of CCP had not been met.","23.The District Court tried to summons C. again. In its letter of 12March 2009, the court sent a summons to the main hearing to C. through her mother. On 13 March 2009 the District Prosecutor\u2019s Office sent to the District Court copies of the documents justifying the urgent need to interview C., namely the request of 7 August 2006 to secure the presence of a judge during an urgent and non-repeatable measure and the police letter of 7August 2006.","24.In a letter of 24 April 2009, C. informed the presiding judge that, although she had been summonsed, she was unable to attend the main hearing because she had been working abroad for more than four years and intended to stay abroad on a permanent basis. She stated that the circumstances justifying the applicant\u2019s criminal prosecution were very stressful for both her and her mother. It appears that the District Court did not try to summon C. again.","25.In a judgment of 8 December 2009 the District Court found the applicant guilty of coercion and sentenced him to two and a half years\u2019 suspended prison sentence subject to a probationary period of two years. The court explicitly noted that in finding the applicant guilty, it mainly relied on the testimony of C., but also on a statement made by D.K., a schoolfriend of C.\u2019s, who stated that she had received emails concerning C.; the statement by M.V., C.\u2019s psychotherapist, who testified that C. had confided in her about having been taken somewhere by the applicant against her will; the statement by C.\u2019s mother; a testimony by L.B. implying that the applicant and C. had met at Christmas 2005; expert opinions in cybernetics and computer technology and in psychiatry; the emails sent by the applicant to C. between 30 December 2005 and 8 June 2006; and the letter from C. to D.B., in which C. wrote to her female friend about the applicant\u2019s violent behaviour.","26.The court then stated:","\u201cBased on such secured evidence, the court came to a clear conclusion, finding the defendant guilty as indicated in the verdict of the judgment. The defendant denies any such behaviour and actions on his part directed against [C.] as described in the judgment; however, he has clearly been proved guilty by the evidence taken. The court relied in particular on the testimony of witness [C.], who described the defendant\u2019s actions in great detail. The testimony is consistent with further evidence taken. This includes email correspondence, which corroborates the victim\u2019s statement and the victim\u2019s mother\u2019s statement to the effect that the victim had confided in her about everything on 6 June 2006. A brief description of the defendant\u2019s behaviour was also included in the letter sent by the victim to her female friend [D.B.] which was available to the court ... In his expert opinion, the expert concluded that it was absolutely possible and posed no problem for the defendant to use previously prepared straps to tie the victim to bed and partially undress the bottom half of her body, and that it was absolutely possible and posed no problem for him to tie her up in the manner she had described ...\u201d","27.On 13 February 2010 the applicant appealed, raising a number of procedural, factual and interpretational complaints. He claimed, inter alia, that C.\u2019s statement remained uncorroborated evidence on which his conviction was based.","28.In his extensive submissions of 26 March 2010, he requested that C. be questioned in order, inter alia, to clarify the contradictions between the statements given by C., her mother, and her psychologist and the applicant\u2019s testimony. He also suggested that an expert opinion be drawn up by a psychiatric expert to assess the reliability of C. and to complete and assess other evidence, including the hearing of three witnesses who had been rejected without adequate reasoning by the first instance court. He also requested that the Prague Municipal Court (m\u011bstsk\u00fd soud) postpone the public hearing, without giving any reason in this respect.","29.The hearing before the Municipal Court was held on 30 March 2010 in the absence of the applicant, who had apologised in writing on 29March 2010 indicating that he could not attend the hearing due to serious personal and family reasons, but agreeing that the court carry out merely the procedural acts allowed by Article 263 \u00a7 5 of the CCP and asking, at the same time, to postpone the hearing afterwards. At the hearing he was represented by counsel who, contrary to the applicant\u2019s written appeal, did not request that any further evidence be taken. The court, having rejected the applicant\u2019s request to postpone the hearing, examined his appeal, upholding the conviction of the first instance court.","30.The court found that the applicant\u2019s guilt had been securely established in particular by the statement given by C., which was not the only evidence against the applicant, her statements having been corroborated by further indirect evidence, such as the testimony of her mother, in whom C. had confided at the material time. The appellate court also found that, although C. and her mother had not had a close relationship before, C. contacted her out of fear for her and her brother\u2019s life and described the acts of coercion carried out by the applicant. Witness C.\u2019s mother also claimed that the initial anonymous criminal complaint sent by email to the Prague 1 District Prosecutor\u2019s Office had been sent by the applicant, who had thus lodged a false accusation. Her testimony was examined in detail. The indirect evidence also included text messages sent by the applicant on 5June 2006 and the criminal complaint filed by C. in the United Kingdom on 7 June 2006. The time concurrence was thus a significant factor, too.","31.As regards the reliability of C. and the assessment of evidence, the court stated:","\u201c... the assessment of the evidence is reasonable and convincing, as is [the District Court\u2019s] conclusion concerning the reliability of witness [C.]. The District Court was not wrong in believing this witness, who proved the defendant\u2019s guilt of the criminal acts. The testimony of the victim was not the only convincing evidence against the applicant on which the District Court based its conclusion about the defendant\u2019s guilt, since the defendant\u2019s criminal acts are also proved by a chain of indirect evidence corroborating the testimony of the victim and confirming the credibility of her statements. This includes, in particular, the testimony of her mother ... in whom the victim confided during a phone call on 6 June 2006 in which she described the defendant\u2019s actions, including the way he had tied her up in his apartment, threatened her and sent her threatening emails. The testimonies given by [C.] and her mother ... regarding the relevant facts correspond to the content of the criminal complaint filed by the victim at the police station in Surrey, United Kingdom ... on 7 June 2006. The defendant\u2019s complaint that the unreliability of the victim is proved by the fact that she did not confide earlier in her mother or a close female friend about his alleged behaviour is ill-founded: the evidence taken clearly shows that the victim and her mother did not previously have a particularly close relationship since she did not confide in her mother about her relationship with the defendant. This is understandable given that she was allegedly abused by the mother\u2019s partner (as the victim confided in the defendant). Furthermore, the victim was already back in the United Kingdom at the relevant time (as of 3 January 2006) and her contact with the defendant was conducted solely via mobile phone calls and email correspondence. In these circumstances, the behaviour of the victim appears rather logical and understandable, i.e. confiding in her mother and brother concerning the threats to their health and her life in an SMS message. ... The reliability of the victim and the veracity of her testimony is also corroborated by the emails included in the ... These emails, which were submitted to the police by the victim, correspond case file to her testimony as to the timeframe and the contents ... It is hardly possible for the Municipal Court to believe that the victim would systematically and for many months beforehand prepare all the evidence ... in order to be able to file a criminal complaint against the defendant. In addition to the above, the defendant\u2019s contacts with the victim (which he himself did not deny) and her reliability are also clearly shown in the defendant\u2019s affidavit of 2 June 2006 ..., in which the defendant declared he did not have any financial claims against the victim. Finally, one should not disregard the statement of an impartial witness ... namely the victim\u2019s psychotherapist, who confirmed that the victim came to her because of relational problems with the defendant, confided in her about having been held by the defendant against her will and driven off somewhere in his car, and about his emails threatening to harm her if she left him. All this indirect evidence is interrelated and consistent with the victim\u2019s testimony. Consequently, the defendant\u2019s complaint concerning the unreliability of the victim is ill-founded ... As a result, the District Court correctly believed the testimony given by the victim in relation to this matter, considering her testimony in general to be credible ...","The defendant\u2019s behaviour and verbal aggression, as documented in the emails and SMS messages sent by him escalated at a later stage, prompting the victim to file a criminal complaint and change her contact details because she was afraid of the defendant\u2019s behaviour after he threatened to harm her mother and brother. ...\u201d","32.In respect of the applicant\u2019s complaint concerning C.\u2019s interview, which was conducted as an urgent and non-repeatable measure under Article 158a of the CCP, the Municipal Court noted that:","\u201cThe victim was duly interviewed in the presence of a judge ..., with the unrepeatability of the measure being determined by the long-term residence of the witness in the United Kingdom. The justification of such a procedure and the unavailability of the witness were confirmed by the efforts of the District Court to secure her attendance at the main hearing, which the witness repeatedly failed to attend, providing a written statement to the effect that she was residing abroad on a long-term basis and would not be able to attend the main hearing in the foreseeable future. Therefore, the Municipal Court deemed legal the procedure applied by the District Court whereby, after exhausting the possibility of examining the victim in the main hearing for unavailability due to her residence abroad, it read out the statement she had made ... in the pre-trial proceedings in accordance with Article 211 \u00a7 2(a) of the Code of Criminal Procedure. Although this was key evidence, it was not the only evidence proving the defendant\u2019s guilt ...\u201d","33.The appellate court admitted that the prosecutor had violated Article176 \u00a7 2 of the CCP in reclassifying the charges without notifying the applicant. It found, however, that this omission did not impact on the legality and correctness of the reviewed judgment to the extent that a duty to reverse it resulted.","34.On 18 July 2010 the applicant filed an appeal on points of law (dovol\u00e1n\u00ed) which was rejected as unsubstantiated by the Supreme Court (Nejvy\u0161\u0161\u00ed soud) on 30November 2010. The court stated that the appellate court had not proceeded erroneously in having decided the case in the absence of the applicant, who had not sufficiently substantiated his request to have the hearing postponed. It added that the applicant\u2019s counsel had not requested that further evidence be gathered and assessed and that, therefore, there had been no need to postpone the hearing.","35.On 13 March 2011 the applicant filed a constitutional appeal (\u00fastavn\u00ed st\u00ed\u017enost) which was dismissed by the Constitutional Court (\u00dastavn\u00ed soud) in a decision of 1 December 2011 which was served on the applicant on 9December 2011. Having analysed the testimony given by C., the Constitutional Court found that, although it was direct evidence, it was corroborated by a chain of indirect evidence, especially the testimony of her mother. In respect of the remaining complaints, the Constitutional Court agreed with the findings of the lower courts stating, in particular:","\u201cThe applicant\u2019s complaints regarding the search in his flat and non-residential premises and lands are unsubstantiated. The search in the applicant\u2019s domicile was carried out in compliance with Article 83 of the Code of Criminal Procedure on the basis of the search order issued by the Prague 6 District Court. The applicant had the opportunity, if he was convinced that the search is unlawful, to lodge a constitutional appeal against this order ... In a constitutional appeal against the final judgment of conviction, it is possible, in connection with a search carried out unlawfully, complain in particular the inadmissibility of concrete pieces of evidence which were gathered and on the basis of which [an applicant] was found guilty. However, the applicant did not expressly submit any concrete evidence which would be gathered illegally. ...\u201d","36.On 30 August 2012 the applicant submitted to the Ministry of Justice a claim for compensation for damages caused by delays in the criminal proceedings under the State Liability Act (no. 82\/1998). On 24September 2012 his claim was rejected as having been introduced outside the six-month statutory time-limit. On 24 May 2013 the applicant filed an action for damages against the Ministry, which appears to be still pending before the Prague 2 District Court."],"20":["5.The first applicant was born in 1971 and lives in Devecser. The second applicant was born in 1979 and lives in Ajka. The applicants are of Roma origin.","6. Mr G.F., a Member of Parliament from the right-wing Movement for a Better Hungary Party (Jobbik Magyarorsz\u00e1g\u00e9rt Mozgalom P\u00e1rt, hereinafter referred to as Jobbik), announced that a demonstration would take place on 5 August 2012 in Devecser under the slogan \u201cLive and let live\u201d. The reason for the demonstration was that riots had broken out between Roma and non-Roma families of the municipality on 25 July 2012. Following that incident, seventeen people were questioned by the police, and an enhanced police presence was ordered in the municipality, with the constant surveillance of streets inhabited by the Roma community.","7.In the applicants\u2019 submission, the police were aware that the presence of a hostile crowd in the municipality could lead to violent acts. The police had been informed through official sources that in addition to the members of Jobbik, nine far-right groups, known for their militant behaviour and anti-Roma and racist stance, would also be present at the demonstration. They had also been informed that the demonstrators would seek conflict with the police and the minority community. According to the far-right organisations\u2019 websites, the demonstration was aimed \u201cagainst Roma criminality\u201d, \u201cagainst the Roma of Devecser beating up Hungarians\u201d and \u201cagainst the Roma criminals unable to respect the rules of living together\u201d.","8.Devecser was classified as special zone of risk, (kiemelten vesz\u00e9lyeztetett) and eight police patrol units were dispatched to the municipality to ensure an increased presence and carry out checks as of 1August 2012. About 200 police officers were deployed in Devecser to secure the demonstration, including members of the Operational Squad. On the day of the demonstration checks were increased throughout the county, including traffic check points. The Veszpr\u00e9m county police department also asked members of the Ethnic Roma Self-Government of Veszpr\u00e9m county to inform the Roma population about the upcoming demonstration.","9.About 400 to 500 people were present at the demonstration. MrG.F. announced that the demonstration was about the justified self-protection of Hungarians. Invoking the crimes committed by members of the Roma community, he demanded the reintroduction of the death penalty and threatened the Roma community that if the criminality continued, Jobbik would return to Devecser. He also announced that the Roma were not \u201cnormal\u201d.","10.In his speech, Mr L.T., leader of the Sixty-four Counties Youth Movement (Hatvann\u00e9gy V\u00e1rmegye Ifj\u00fas\u00e1gi Mozgalom), mentioned that Roma criminality was omnipresent in the country and wherever this ethnic group appeared, only destruction, devastation and fear came. In his opinion the Roma population wanted to exterminate Hungarians, which left the latter with the choice of becoming victims or fighting back. Mr A.L., leader of the Civil Guard Association for a Better Future (Szebb J\u00f6v\u0151\u00e9rt Polg\u00e1r\u0151r Egyes\u00fclet) stated that hundreds of Hungarians were killed yearly by the Roma with the approval of the State. In his view there was a destruction of civilians going on in Hungary. He called on the demonstrators to sweep out the \u201crubbish\u201d from the country, to revolt and to chase out the treasonous criminal group supressing Hungarians. He closed his speech by saying that the Hungarians were entitled to use all means to achieve those goals. MrZs.Ty., leader of the Outlaws\u2019 Army (Bety\u00e1rsereg), spoke about the characteristics of a racial war and an ethnic-based conflict. He said that before such conflict escalated, a message should be sent. He mentioned that the Roma minority was genetically encoded to behave in a criminal way and declared that the only way to deal with the Roma was by applying force to \u201cstamp out this phenomenon that needs to be purged\u201d. Mr I.M., the leader of the New Guard (\u00daj G\u00e1rda), called on the Government to end Roma criminality and warned that if Hungarians ran out of patience, there would be trouble. Finally, Mr I.O., the vice-president of Jobbik in Veszpr\u00e9m county, told participants that there would be no mercy and that every criminal act and every prank would be revenged; if the State authorities did not live up to their obligations to protect civilians from Roma criminality, this would be done by the population itself.","11.Following the speeches, the demonstrators marched down V\u00e1s\u00e1rhelyi Street, the neighbourhood of Devecser inhabited by the Roma community, chanting \u201cRoma criminality\u201d, \u201cRoma, you will die\u201d, and \u201cWe will burn your house down and you will die inside\u201d, \u201cWe will come back when the police are gone\u201d, and obscene insults. They also called on the police not to protect the Roma residents from the demonstrators and to let them out from their houses. Sporadically, quasi\u2011military demonstrations of force occurred, involving military-style uniforms, formations, commands and salutes.","12.Certain demonstrators covered their faces, dismantled the cordon and were equipped with sticks and whips. Those leading the demonstration threw pieces of concrete, stones and plastic bottles into the gardens, encouraged by the crowd following them.","13. The Government and the applicants disagreed as to other aspects of the demonstration.","14.During the march through the Roma neighbourhood, which lasted approximately thirty minutes, both applicants stayed in the gardens of houses in V\u00e1s\u00e1rhelyi Street. The first applicant submitted that he had overheard the police stating on their radio that the demonstrators were armed with sticks, stones, whips and metal pipes. Furthermore, one of his acquaintances had been injured by a stone thrown into his garden, but the police officer to whom the applicant had reported the incident had not taken any steps. In the second applicant\u2019s submission, two of the demonstrators leading the march had had a list and had pointed out to the crowd the houses that were inhabited by Roma people.","15.According to the applicants, the police were present during the demonstration but remained passive and did not disperse the demonstration; nor did they take any steps to establish the criminal responsibility of the demonstrators. The report of the police\u2019s contact officer noted that the organiser of the demonstrations, Mr G.F. had not been able to keep the events under control and had been unwilling to confront the participants.","16.According to the Government, the commander of the security forces immediately took action when the participants started to act violently, managed the crowd appropriately and separated hostile demonstrators from others.","17.On 21 September 2012 the Minister of the Interior, reacting to a letter from civil society organisations, informed the public that the conduct of the police had been adequate and that forty people, including five demonstrators, had been questioned by the police. Following a statement from two injured persons, the police opened criminal proceedings against unknown perpetrators on charges of \u201cdisorderly conduct\u201d (gar\u00e1zdas\u00e1g), which was subsequently amended to \u201cviolence against a member of a group\u201d (k\u00f6z\u00f6ss\u00e9g tagja elleni er\u0151szak). It appears from the case file that a further criminal investigation was opened into charges of \u201cviolence against a member of a group\u201d several months after the incident.","18.In November 2012 the Office of the Commissioner for Fundamental Rights published a report on the events. The report concluded that the police had failed to assess whether the event had infringed the rights and freedoms of others. Such assessment would have led to the conclusion that the people living in the neighbourhood were forced as a \u201ccaptive audience\u201d to listen to the injurious statements that had been made. According to the report, the demonstration had been used to incite ethnic tensions on the basis of the collective guilt of the ethnic group. It went on to state that by not enforcing the limits of freedom of assembly, the police had caused anomalies in respect of the right to peaceful assembly and the Roma population\u2019s right to dignity and private life. It also pointed out that certain speeches had been capable of inciting hatred, evidenced by the fact that stones had been thrown at Roma houses following the speeches. The Commissioner found it regretful that the police had failed to identify the perpetrators on the spot, which was inconsistent with their task of preventing and investigating crimes and with the right to dignity, non-discrimination and physical integrity.","19.Both applicants complained to the Veszpr\u00e9m county police department about the failure of the police to take measures against the demonstrators, thereby endangering their life and limb and their human dignity.","20.On 22 November 2012 the police department dismissed the applicants\u2019 complaint, finding that the conditions for dispersal of the demonstration had not been met, since any illegal or disorderly conduct on the part of the demonstrators had ceased within ten minutes. The police department held that the demonstration had remained peaceful, since, apart from the throwing of stones, no actual conflict had broken out between the police, the demonstrators and members of the Roma minority. It also found that only a small group of demonstrators had been armed with sticks and whips. As regards the failure of the police to carry out identity checks on demonstrators and to hold suspects for questioning (el\u0151\u00e1ll\u00edt\u00e1s), the police department found that such measures would only have aggravated the situation and strengthened the demonstrators\u2019 hostility towards the police.","21.On appeal, the National Police Service upheld the first-instance administrative decision. Following a request for judicial review lodged by the applicants, it nonetheless overruled the first-instance decision and remitted the case to the county police department.","22.By its decisions of 29 October 2013 and 25 June 2014 the Veszpr\u00e9m county police department dismissed both applicants\u2019 complaints again on identical grounds. The police department found that the demonstration had remained essentially peaceful, because the majority of the participants had not aligned themselves with those committing violent acts. The police department observed that there had been grounds to disperse the demonstration, since some participants had been armed and there had been a reasonable suspicion that some of them had committed the criminal offence of violence against a member of a group. Nonetheless, it concluded that dispersing the demonstration would have carried a high risk since, based on previous experience, those participants intent on violence would probably have turned against the police.","23.The National Police Service upheld those decisions on appeal on 19December 2013 and 5 August 2014, respectively, stating that although under section 14 of Act no. III of 1989 (\u201cthe Freedom of Assembly Act\u201d) the police had been under an obligation to disperse the demonstration, they could refrain from such action if it carried a higher risk than allowing the demonstration to continue. Furthermore, the commander of the operation had been right not to apply measures against certain individuals, since that would have led to a clash between the demonstrators and the police, endangering not only the police themselves, but the local residents too. The second-instance authority acknowledged that the unlawful acts of certain demonstrators had infringed the fundamental rights of the applicants, but concluded that seeking to protect those rights would have caused more harm than good.","24.The applicants sought judicial review of those decisions, arguing that under section 14 of the Freedom of Assembly Act the police were under an obligation to disperse non-peaceful demonstrations irrespective of the proportionality of such a measure.","25.In its judgments delivered on 3 December 2014 and 19 March 2015 the Veszpr\u00e9m Administrative and Labour Court dismissed the applicants\u2019 claims. It found that although the non-peaceful character of a demonstration could serve as grounds for its dispersal, this was only so if the demonstration as a whole had ceased to be peaceful. Sporadic acts of violence, as in the present case, could not serve as legitimate grounds for dispersal. The court also considered that the police had a margin of discretion when deciding on the dispersal of a demonstration. As regards the applicants\u2019 claim that the police should have taken law-enforcement measures against certain individuals, the court pointed out that such actions would have led to clashes between the demonstrators and the police. The court therefore concluded that even if there had been grounds to terminate the demonstration or to apply law-enforcement measures against certain individuals, the police had been justified in not having done so. It added that, in any event, the potential infringement of the applicants\u2019 fundamental rights had been caused not by the alleged inactivity of the police, but by the conduct of the demonstrators.","26.The applicants lodged a petition for review with the K\u00faria. In its judgments of 23 September 2015 and 6 January 2016 the K\u00faria reiterated that under the Freedom of Assembly Act no. III of 1989 the dispersal of demonstrations was a possibility rather than an obligation for the police and restrictions on the fundamental rights of others did not in themselves justify the restriction of the right of assembly. Furthermore, dispersal could only be used as a last resort, if the demonstration was likely to entail serious consequences. Relying on the report by the Commissioner for Fundamental Rights, the K\u00faria considered that despite certain violent actions, the demonstration had on the whole remained peaceful. The court went on to find that the police had been under an obligation to respect the principle of proportionality and had been right to conclude that dispersing the march could have caused more serious prejudice to the Roma community than allowing the demonstration to continue in a controlled manner.","As regards the lack of individual measures, the K\u00faria found that an operational unit of the police (csapater\u0151) had been deployed to maintain order, and that such a measure had not allowed for police officers to single out and act against individual demonstrators.","The K\u00faria also rejected the applicants\u2019 argument that the police had done nothing to protect them and other members of the Roma minority. It found it established that the police had used a cordon to contain the demonstrators and had ensured the subsequent prosecution of perpetrators by logging events, and taking video footage and photographs.","27.The applicants, together with the Hungarian Helsinki Committee, lodged a criminal complaint concerning the speeches delivered at the demonstration and the attacks to which the Roma community had been subjected. The case was subsequently joined to a criminal complaint lodged by third persons concerning the same issue. On 22 November 2012 the Veszpr\u00e9m county police department opened an investigation into charges of violence against members of a group under Article 174\/B of the Criminal Code. The police department opened a separate investigation, under Article269 point (b) of the Criminal Code (incitement against a group), into the issue of the speeches delivered during the demonstration.","28.The investigation into incitement against a group was discontinued by the police department on 24 September 2013. The police department considered that although the content of the speeches had been injurious to the Roma minority and was morally reprehensible, it could not be classified as a crime. In particular, the speeches had not been meant to trigger unconsidered, instinctive, harmful and hostile reactions. By the same decision, the police department informed the applicants that it had asked the prosecutor\u2019s office to press charges against an individual for violence against member of a group.","29.Following a complaint lodged by the applicants, the Veszpr\u00e9m County Prosecution Office upheld the decision to discontinue the investigation. It held that the legally protected interest in the criminalisation of incitement against a group was public morale. Thus the applicants were not victims of the alleged criminal act and had no standing to lodge a complaint against the decision to discontinue the investigation. However, the county prosecution office re-examined the decision on its own motion. It held that the speeches delivered in Devecser contained abusive, demeaning statements concerning the Roma minority and might have contained statements that evoked hatred, but that they had not provoked active hatred and had not called on the audience to take violent action against the local Roma.","30.As regards the investigation into the offence of violence against a member of a group, the police established that four persons had taken part in violent acts, in particular the throwing of stones. Three of the alleged perpetrators could not be identified, while the Veszpr\u00e9m County Prosecutor\u2019s Office pressed charges against the fourth person, Mr T.K. He was found guilty as charged on 2 June 2015 by the Ajka District Court and sentenced to ten months\u2019 imprisonment, suspended for two years. On appeal the Veszpr\u00e9m High Court upheld Mr T.K.\u2019s conviction but amended his sentence to one year and three months\u2019 imprisonment, suspended for three years.","31.The applicants, together with a third person, also lodged a criminal complaint against unknown perpetrators for breach of discipline in the line of duty, under Article 438 of the Criminal Code. Those proceedings were discontinued on 17 October 2012 by a decision of the Central Investigation Office of the Public Prosecutor, which held that the criminal offence could only be committed by soldiers in military service, but not by police officers."],"21":["8.The applicants, Mr Khamtokhu and Mr Aksenchik, were born in 1970 and 1985 respectively. They are currently serving life sentences in the Yamalo-Nenetskiy Region of Russia.","A.Criminal proceedings against the first applicant","9.On 14December 2000 the Supreme Court of the Adygea Republic found the first applicant guilty of multiple offences, including escape from prison, attempted murder of police officers and State officials, and illegal possession of firearms, and sentenced him to life imprisonment.","10.On 19October 2001 the Supreme Court of the Russian Federation upheld the first applicant\u2019s conviction on appeal.","11.On 26March 2008 the Presidium of the Supreme Court of the Russian Federation quashed the appeal judgment of 19October 2001 by way of supervisory review and remitted the matter for fresh consideration.","12.On 30June 2008 the Supreme Court of the Russian Federation upheld the first applicant\u2019s conviction on appeal. The court reclassified some of the charges against him but the life sentence remained unchanged.","B.Criminal proceedings against the second applicant","13.On 28April 2010 the Tomsk Regional Court found the second applicant guilty on three counts of murder and sentenced him to life imprisonment.","14.On 12August 2010 the Supreme Court of the Russian Federation upheld that conviction on appeal.","A.Juvenile offenders","23.Article 6 \u00a7 5 of the International Covenant on Civil and Political Rights provides:","\u201cSentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.\u201d","24.Article 37 (a) of the Convention on the Rights of the Child provides:","\u201cStates Parties shall ensure that:","(a)No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age ...\u201d","25.The Committee on the Rights of the Child, in General comment No.10 (2007), recommended:","\u201cGiven the likelihood that a life imprisonment of a child will make it very difficult, if not impossible, to achieve the aims of juvenile justice despite the possibility of release, the Committee strongly recommends the States parties to abolish all forms of life imprisonment for offences committed by persons under the age of 18.\u201d","26.The United Nations General Assembly adopted Resolution A\/RES\/67\/166 on Human Rights in the Administration of Justice on 20December 2012, urging States \u2013","\u201c... to ensure that, under their legislation and practice, neither capital punishment nor life imprisonment without the possibility of release ... is imposed for offences committed by persons under 18 years of age, and ... to consider repealing all other forms of life imprisonment for offences committed by persons under 18 years of age.\u201d","B.Protection of women and motherhood","27.For the text of Article 6 \u00a7 5 of the International Covenant on Civil and Political Rights, see paragraph 23 above.","28.The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) reads in the relevant parts:","Article 4","\u201c1.Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.","2.Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.\u201d","29.The UN Rules for the Treatment of Women Prisoners and Non-custodial measures for Women Offenders (the Bangkok Rules):","Preamble","\u201cConsidering that women prisoners belong to one of the vulnerable groups that have specific needs and requirements ...\u201d","Rule 5","\u201cThe accommodation of women prisoners shall have facilities and materials required to meet women\u2019s specific hygiene needs ... in particular women involved in cooking and those who are pregnant, breastfeeding or menstruating.\u201d","Rule 10","\u201c1.Gender-specific health-care services at least equivalent to those available in the community shall be provided to women prisoners.\u201d","Rule 31","\u201cClear policies and regulations on the conduct of prison staff aimed at providing maximum protection for women prisoners from any gender-based physical or verbal violence, abuse and sexual harassment shall be developed and implemented.\u201d","Rule 48","\u201c1.Pregnant or breastfeeding women prisoners shall receive advice on their health and diet ...\u201d","30.On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules, which replaced Recommendation No.R (87) 3 on the European Prison Rules accounting for the developments which had occurred in penal policy, sentencing practice and the overall management of prisons in Europe. The amended European Prison Rules read in particular as follows:","\u201c13.These rules shall be applied impartially, without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.","...","34.3.Prisoners shall be allowed to give birth outside prison, but where a child is born in prison the authorities shall provide all necessary support and facilities.\u201d","31.The European Parliament\u2019s Resolution of 13 March 2008 on the particular situation of women in prison recommends:","\u201c14.(...) that the imprisonment of pregnant women and mothers with young children should only be considered as a last resort and that, in this extreme case, they should be entitled to a more spacious cell, and an individual cell if possible, and should be given particular attention, especially in terms of diet and hygiene; considers, furthermore, that pregnant women should receive antenatal and postnatal care and parenting classes of a standard equivalent to those provided outside the prison environment.\u201d"],"22":["1. The applicant, Mr Daniel Molga, is a Polish national who was born in 1998 and lives in Radom. He was initially represented before the Court by his mother, and subsequently by Mr T. Rowi\u0144ski, a lawyer practising in Lublin. The Polish Government (\u201cthe Government\u201d) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.","A. The circumstances of the case","2. The facts of the case, as submitted by the parties, may be summarised as follows.","1. Background to the case and death of the applicant \u2019 s father","3. The applicant \u2019 s father, Mr W\u0142odzimierz Molga (\u201cW.M.\u201d), lived with the applicant \u2019 s mother, Ms R.L.","4. The applicant \u2019 s father sold clothes at a local market. On 31 August 1998 the Radom District Court convicted him in summary proceedings of the unauthorised use of a registered trademark. It fined him 700 Polish zlotys (PLN, approximately 175 euros (EUR)), convertible to 35 days \u2019 imprisonment in case of default.","5. On 22 December 1998 the court decided that W.M. could pay the fine in seven monthly instalments, starting from December 1998. According to the court \u2019 s records, W.M. paid PLN 600 of his fine. A court bailiff instituted enforcement proceedings to recover the outstanding PLN 100, but to no avail.","6. On 8 June 2004 the Radom District Court ordered that W.M. serve a term of five days \u2019 imprisonment in respect of the unpaid fine. It appears that W.M. had been summoned to the hearing but did not appear.","7. W.M. was unsuccessfully summoned to surrender himself to a remand centre. On 19 October 2004 the Radom District Court ordered that he be arrested and taken to the remand centre. On 16 November 2004 at about 5 p.m. the police arrested W.M. outside his home. On 17 November 2004 at about 9 a.m. he was taken to Radom Remand Centre to serve his five \u2011 day sentence.","8. At the remand centre W.M. refused a routine examination by a nurse. He was then examined by a doctor, who cleared his admission. Subsequently, W.M. was placed in a transit cell no. 4. At about 12 noon a prison guard, M.D., noticed that W.M. was lying on the floor with his belt tied around his neck. The other end of the belt was tied to a chair. The guards, M.D. and A.R., and later the nurse tried to resuscitate W.M. He was declared dead at about 12.30 p.m. W.M. was 52 at the time. A prosecutor and the police arrived at the scene later.","2. The first investigation","9. On 22 November 2004 the Radom police opened an investigation under the heading of involuntary homicide (Article 155 of the Criminal Code, hereinafter \u201cthe CC\u201d). The investigation was later taken over by the Radom District Prosecutor.","10. On an unspecified date a post-mortem was carried out. In his report, the forensic expert concluded that the direct cause of death had been hanging and that it could be assumed that it had been an act of suicide.","11. The prosecutor found no evidence pointing to the involvement of third parties in the incident. With regard to a possible failure to act by the prison guards, the prosecutor questioned M.D., the guard who had been supervising W.M. at the relevant time (see paragraph 8 above). Having regard to the evidence, the prosecutor found that the prison guards responsible for W.M. \u2019 s safety had acted beyond reproach. The guards had not breached the applicable regulations by letting W.M. keep his belt. Furthermore, the prosecutor found no shortcomings in the prison guards \u2019 reaction after seeing W.M. lying on the ground. She concluded that the prison guards had not committed an offence.","12. On 28 February 2005 the Radom District Prosecutor discontinued the investigation after establishing that the actions of the prison guards had not constituted a criminal offence.","13. On 12 August 2008 the applicant \u2019 s mother complained to the Ministry of Justice that she had not been served with the Radom District Prosecutor \u2019 s decision to discontinue the investigation.","14. On 6 October 2008 the Radom District Prosecutor ordered that the applicant \u2019 s mother be served with a copy of the decision.","15. By a letter dated 9 October 2008 the applicant \u2019 s mother was informed by the Radom District Prosecutor that she had been formally notified of the opening of the investigation into her partner \u2019 s death on 30 November 2004. The letter said that the applicant \u2019 s mother had twice been summoned to the Radom police headquarters for an interview, which she had not attended. Subsequently, a police officer had visited her flat but had not been allowed to enter. Further summonses sent to the applicant \u2019 s mother had not been answered. On 28 December 2004 the applicant \u2019 s mother had gone to police headquarters and had insisted that she did not wish to be contacted in connection with W.M. \u2019 s death. Accordingly, the district prosecutor had served the decision to discontinue the investigation on R.L., W.M. \u2019 s adult son and the applicant \u2019 s half-brother.","16. On 9 January 2009 the applicant \u2019 s mother was served with the prosecutor \u2019 s decision to discontinue the investigation. She lodged an appeal against that decision dated 13 January 2009. Her appeal was rejected as submitted out of time. On an unspecified date the applicant \u2019 s mother requested the district prosecutor to grant her leave to appeal out of time. On 5 February 2009 the prosecutor refused that request. The applicant appealed. On 7 April 2009 the Radom District Court upheld the prosecutor \u2019 s decision. No further appeal lay against this decision. In consequence, the decision to discontinue the investigation of 28 February 2005 became final.","3. The second investigation","17. On 12 June 2012 the applicant, represented by his mother, relying on Article 327 \u00a7 1 of the Code of Criminal Procedure (hereinafter, \u201cthe CCP\u201d), requested that the Radom-Wsch\u00f3d District Prosecutor open de novo ( podj\u0119cie na nowo ) the investigation into his father \u2019 s death. He requested that the prosecutor obtain the file of the civil proceedings against the State Treasury in which the courts had determined that there existed a causal link between the failures of the prison guards and his father \u2019 s suicide (see paragraphs 36-43 below). He pointed out the discrepancy between the findings of the district prosecutor and the civil courts. The applicant \u2019 s mother also produced proof of payment of all seven instalments of the fine imposed on W.M.","18. The investigation was opened de novo on 15 February 2013.","19. On 28 June 2013 the Radom-Wsch\u00f3d District Prosecutor discontinued the investigation into the alleged failure by the prison guards to fulfil their duties. The allegation was related to their failure to keep the applicant \u2019 s father under constant surveillance and to seize his belt, which he had used to commit suicide (Article 231 \u00a7 1 in conjunction with Article 155 of the CC, see paragraph 44 below). The prosecutor established that those acts did not constitute a criminal offence.","20. The prosecutor also discontinued the investigation into alleged negligence by Ms E.W., a clerk at the Radom District Court who had incorrectly credited a payment of PLN 100 by W.M. to another debtor. The prosecutor established that prosecution of the impugned offence had become time-barred.","21. With regard to the facts, the prosecutor established that during W.M. \u2019 s admission to the remand centre on 17 November 2004, the prison guard S.S. had noticed that W.M. had been anxious and tearful. W.M. had contested his imprisonment as unjust. Consequently, the guards S.S. and R.D. had decided to check with Radom District Court as to whether the fine had been paid and were told that that was not the case. Next, W.M. was to be examined by a male nurse, M.S. The male nurse noticed that W.M. had been agitated and tearful and had declared that he would go on a hunger strike. Having regard to those circumstances, the male nurse had requested that W.M. be taken to a medical room for examination by a doctor. At about 11 a.m. W.M. had been taken to a medical room where he was to be examined by a doctor, D.C. W.M. had been anxious, tearful and convinced that he had been wronged by the court and the police. W.M. had refused to be examined or take any medication. He had also declared that he would refuse any food and drink in protest at his imprisonment. W.M. had not revealed any suicidal thoughts. Doctor D.C. had agreed to W.M. \u2019 s incarceration but had recommended that he be seen by a psychiatrist at a later date.","22. At about 11.40 a.m. W.M. had been taken to transit cell no. 4 where he was to wait for his prison underwear and hygiene products. At about 12 noon the prison guard M.D. had seen through the peephole that W.M. was lying on the floor. M.D. had entered the cell and noticed that a belt was tied around W.M. \u2019 s neck. He had taken the belt off W.M. \u2019 s neck and, together with another guard, A.R., had begun resuscitation procedures. At about 12.30 p.m. an emergency services doctor had declared W.M. dead.","23. The prosecutor also had regard to the findings of the forensic expert. The expert, having carried out a post-mortem, established the presence of a slight strangulation mark on W.M. \u2019 s neck and a number of injuries which had likely resulted from his hitting objects while in convulsion. The expert further established that the direct cause of death had been hanging. The result of his examination allowed it to be established that it had been a suicide.","24. The prosecutor found no evidence pointing to the involvement of third parties in the impugned incident.","25. The prosecutor took a number of investigative measures aimed at determining whether the prison guards had failed to fulfil their duties. She interviewed the prison guard M.D. He testified that certain objects, such as mobile telephones, penknives and screwdrivers, were taken from prisoners. However, the applicable regulations did not require that belts or laces should also be seized. The prosecutor analysed the applicable regulations and concluded that belts and laces were not regarded as dangerous objects.","26. With regard to alleged negligence on the part of the prison, the prosecutor established that the actions of the prison guards had not disclosed any failure to fulfil their duties. The prison guards had acted with appropriate diligence in supervising W.M. Not seizing W.M. \u2019 s belt in the process of his admission to the remand centre had been in compliance with the relevant regulations. There had been no grounds to suspect that W.M. would make an attempt on his own life despite his strong emotional reaction to his incarceration. The doctor interviewing W.M. had not identified any suicidal tendencies. Furthermore, after seeing W.M. lying unconscious on the floor, the prison guards had reacted appropriately to the situation. In conclusion, the prosecutor found that the actions of the prison guards had not constituted any of the criminal offences prescribed in Articles 231 and 155 of the CC.","27. On 11 July 2013 the applicant \u2019 s mother appealed against the prosecutor \u2019 s decision. She argued, inter alia, that the prison guards had failed in their duties by not seizing W.M. \u2019 s belt. That, in consequence, had led to his suicide and death.","28. On 10 October 2013 the Radom District Court dismissed the appeal and upheld the prosecutor \u2019 s decision.","29. The court noted that the applicant \u2019 s mother had sought to have the investigation continued and for charges to be brought against specific individuals, eventually leading to their trial and conviction. However, the evidence secured in the investigation had not provided any grounds to accept such a demand.","30. The court found that the prosecutor had correctly established the facts and had properly assessed the comprehensive evidence obtained in the case. It noted that the prosecutor had carried out a number of investigative measures aimed at determining if there had possibly been negligence on the part of the prison guards. However, no such negligence had been established.","31. The court found nothing untoward in the manner in which the prison guards had carried out their duties vis-\u00e0-vis the applicant \u2019 s father. They had ensured, inter alia, that the applicant \u2019 s father had been seen by a doctor. There had been no grounds to believe that the applicant \u2019 s father would commit suicide, despite his strong emotional reaction to imprisonment. In accordance with the applicable regulations, the prison guards had not been required to seize the applicant \u2019 s father \u2019 s belt. Furthermore, they had attempted to resuscitate the applicant \u2019 s father. In conclusion, the court accepted the prosecutor \u2019 s finding that the actions of the prison guards had not amounted to any of the offences prescribed in Articles 231 and 155 of the CC. It noted that the findings of the civil court could not alter that conclusion and lead to attributing criminal responsibility to the prison guards. The court found that the applicant \u2019 s mother had not indicated any relevant circumstances which could lead to the prosecutor \u2019 s decision being overturned.","32. The court also accepted the prosecutor \u2019 s decision to discontinue the investigation with regard to the court clerk.","4. Civil proceedings against the State Treasury","33. On 11 January 2010 the applicant brought a claim against the State Treasury with the Radom Regional Court. His mother acted on his behalf since the applicant was a minor. He sought PLN 1,000,000 (approximately EUR 250,000) in compensation and a monthly allowance of PLN 3,000 (approximately EUR 750) in connection with his father \u2019 s death. The applicant argued that the State Treasury was liable for his father \u2019 s death on account of gross negligence by the prison guards who had failed to ensure his father \u2019 s safety. In his view, the belt had been a dangerous object and should definitely have been seized by the prison guards.","34. On 30 September 2010 the Radom Regional Court dismissed the applicant \u2019 s claim. It held that the prison guards had acted lawfully and in accordance with the Code of Execution of Criminal Sentences and that therefore the State Treasury could not be held liable. In addition, the court held that there had been no causal link between W.M. \u2019 s death and the actions of the prison guards.","35. The Regional Court established that W.M. had been agitated during his admission to the remand centre but considered that to be a standard reaction. The prison guards had checked with Radom District Court and, despite W.M. \u2019 s claims to the contrary, it had confirmed that one instalment of W.M. \u2019 s fine had not been paid. During his medical examination, W.M. had informed the doctor that he had left children at home unsupervised but he had not revealed any suicidal thoughts. The doctor had concluded that W.M. could be admitted to the remand centre and that there was no need for an immediate psychiatric consultation. Having regard to the above, the court found that there was nothing in W.M. \u2019 s medical history or circumstances related to the offence which would have indicated that he needed to be put under particularly close supervision or that his belt should have been seized.","36. The applicant appealed. On 8 February 2011 the Lublin Court of Appeal partly allowed his claim. It found the State Treasury liable under Article 417 \u00a7 1 of the Civil Code and awarded the applicant PLN 70,000 (approximately EUR 18,000) in compensation and a monthly allowance of PLN 500 (approximately EUR 125). The court dismissed the remainder of the applicant \u2019 s appeal.","37. The Court of Appeal noted that under Article 108 \u00a7 1 of the Code of Execution of Criminal Sentences, the administration of a penal institution had a duty to ensure prisoners \u2019 safety. It held, however, that in the case of W.M. the prison guards had failed in that duty. The Court of Appeal found that in the circumstances of the case there had been an objective need to place W.M. under constant supervision. The lower court had failed to have regard to reports drafted by the prison guards M.S. and S.S. and Doctor D.C. It transpired from those reports that W.M. \u2019 s behaviour could not be considered as simple agitation. His behaviour had suggested a nervous breakdown caused by a feeling of injustice as W.M. had been convinced that he had paid the fine in full. For example, the prison guard M.S. had stated in his report that W.M. had displayed disturbing behaviour (hitting the bed with his fist), had been tearful, anxious and agitated, and had declared that he would go on a hunger strike.","38. The Court of Appeal found that since W.M. \u2019 s behaviour had been very different from the norm and that a psychiatric consultation had been recommended for him, then the prison guards should have taken all the necessary steps to ensure his safety. They should have seized any object presenting a risk to his life or health, including his belt or, alternatively, should have put him under constant supervision. Such actions would have prevented W.M. \u2019 s death. The court thus held that there was a causal link between the omissions of the prison guards and W.M. \u2019 s death.","39. With regard to the claim for compensation, the Court of Appeal noted that under Article 446 \u00a7 3 of the Civil Code it could award an appropriate level of compensation to relatives of a deceased if their situation significantly deteriorated as a result of the person \u2019 s death. A significant deterioration in a claimant \u2019 s situation depended on the degree of adverse material and immaterial consequences resulting from the death of a relative. The Court of Appeal found that the amount of compensation sought was grossly excessive and that the claimant (the applicant) had not established that his situation had deteriorated to such a degree. For the claimant, the death of his father when he was six years old had certainly been a particularly acute loss which had limited his prospects in life and had amounted to a loss of natural support. Having regard to those and other relevant factors, the court found that the appropriate level of compensation was PLN 70,000 (approximately EUR 18,000).","40. The amount of monthly allowance sought by the applicant was also inflated, the court found. The size should not be higher than the amount W.M. would have contributed as a father. Having regard to W.M. \u2019 s financial situation prior to his death, the court found that a monthly allowance of PLN 500 (approximately EUR 125) was reasonable and commensurate with the applicant \u2019 s justified needs.","41. The applicant lodged a cassation appeal, contesting the amounts of compensation and monthly allowance as too low. The State Treasury also lodged a cassation appeal. On 22 November 2011 the Supreme Court accepted the defendant \u2019 s cassation appeal for examination and refused to admit that of the applicant.","42. On 22 February 2012 the Supreme Court quashed the Court of Appeal \u2019 s judgment in part and remitted the case. It held that the lower court had failed to examine the defendant \u2019 s plea that the claim was time-barred. However, it upheld the Court of Appeal \u2019 s findings in respect of the prison guards \u2019 failure to ensure the safety of the applicant \u2019 s father (see paragraphs 37-38 above).","43. On 31 May 2012 the Lublin Court of Appeal gave a judgment awarding the same level of compensation and monthly allowance to the applicant and dismissing the remainder of the defendant \u2019 s appeal. The court examined the defendant \u2019 s plea based on the limitation period. To that end the court heard the applicant \u2019 s mother. It established that in April 2012 the applicant \u2019 s mother had found proof of payment of all seven instalments of the fine imposed on her partner made between December 1998 and June 1999. It further established that the prosecutor had refused to consider her a party to the investigation and to grant her access to the file. It had only been after the applicant \u2019 s mother had complained to the Ministry of Justice that she had been served with the decision to discontinue the investigation on 9 January 2009 (see paragraph 16 above). Accordingly, the three-year limitation period should start to run on the latter date. As the claim had been brought on 11 January 2010 (see paragraph 33 above), the defendant \u2019 s plea had to be dismissed.","B. Relevant domestic law and practice","1. Constitutional provisions","44. Article 77 \u00a7 1 of the Constitution refers to the State \u2019 s civil liability in the following way:","\u201cEveryone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law.\u201d","45. In a judgment (no. SK 18\/00) of 4 December 2001, the Constitutional Court examined the compatibility of Article 417 of the Civil Code with Article 77 \u00a7 1 of the Constitution. It held, inter alia, that:","\u201cIn accordance with Article 77 \u00a7 1 of the Constitution, the sole basis for [State civil] liability is an unlawful act by a public authority, it is of no significance whether such an act was subjectively culpable ( subiektywnie zawinione ). ...","Having regard to the conditions for [State] liability laid down in Article 77 \u00a7 1 of the Constitution previously analysed, there is no doubt that \u2018 the personal culpability of a state official \u2019 does not form part of the list of conditions necessary for liability on the part of the public authorities.\u201d","2. Provisions of the Civil Code","46. Article 417 \u00a7 1 of the Civil Code, as applicable from 1 September 2004, provides as follows:","\u201cThe State Treasury or [,as the case may be,] a local self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.\u201d","3. Provisions of the Criminal Code","47. Article 155 of the Criminal Code provides as follows:","\u201cAnyone who unintentionally causes the death of another person shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.\u201d","Article 231 \u00a7 1 of the Criminal Code reads as follows:","\u201cA public official who, by overstepping his powers or not fulfilling his duties, acts to the detriment of public or private interests shall be liable to a sentence of imprisonment of up to three years.\u201d"],"23":["4.The applicant was born in 1977 and lives in London.","A.The applicant\u2019s immigration history","5.The applicant left Somalia with his family for the Netherlands in 1992 when he was fifteen years old. After claiming asylum, it would appear that the family were given a period of leave to remain in the Netherlands. During this period the applicant married and had a son, born in 1994. The applicant\u2019s family travelled to the United Kingdom in 1998. The applicant initially remained in the Netherlands but on 11 December 1999 he arrived in the United Kingdom, where he claimed asylum. In doing so, he provided the immigration authorities with a false name and a false immigration history in order to avoid being sent back to the Netherlands. Although the asylum application was unsuccessful the applicant was granted exceptional leave to remain until 2004.","6.The applicant received ten criminal convictions over the period from 16November 2001 to 4 August 2005. In December 2007 he was convicted of a public order offence and of failing to surrender. He was sentenced to four and a half months\u2019 imprisonment.","7.On 29 January 2008 the applicant was served with notice that the Secretary of State intended to make a deportation order against him. The same letter refused an application for indefinite leave to remain in the United Kingdom. The applicant lodged an appeal against the decision to deport him on 1 February 2008. That appeal was dismissed on 30 June 2008 and his appeal rights were exhausted on 8 July 2008.","B.The applicant\u2019s immigration detention","8.On 8 February 2008, when the applicant had served half of his final custodial sentence and was eligible for release from prison, he was detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending the making of a deportation order against him. The Secretary of State signed the deportation order on 29 October 2008 and he was thereafter detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending his removal from the United Kingdom.","9.On 2 June 2009 removal directions were set for 17 June 2009. However, they were cancelled on 16 June 2009 when the applicant made an application to this Court (application no. 26023\/09), which granted an interim measure under Rule 39 of the Rules of Court.","10.The applicant\u2019s detention was reviewed monthly and the review forms set out the reasons for maintaining detention. The form from July 2009 includes the following statement in reference to the Rule 39 measure: \u201cWhilst this means that enforced removal is not possible, [the applicant] could reduce the length of time he spends in detention by withdrawing voluntarily\u201d. A similar point features in some, if not all, of the later forms. The form for February 2010 notes that \u201cRule 39 ECHR is a barrier to removal but I note that FRS [Facilitated Return Scheme] is an option that should be explored to the full to expedite his removal from the UK\u201d. Likewise, the form for July 2010 states that \u201c[t]he length of detention is a direct result of his appeals against deportation and, although it is now 29months, he has the real option of return to Somalia with the Facilitated Returns Scheme. This option should be further explained to the subject\u201d. Furthermore, the form from December 2010 indicated that the applicant \u201ccould minimise his time in detention by withdrawing [the application to the ECHR] and taking up FRS which is offered each month\u201d and that he could \u201cend his detention by volunteering to return (with or without FRS) at any time\u201d.","11.Applications for bail were refused on 9 November 2009, 21April 2010 and 14 July 2010 as the Immigration Judges were not satisfied that the applicant would answer to any conditions set. On 9 November 2009 the Immigration Judge further noted that although the applicant had been in detention for a lengthy period, \u201cthe most recent period of detention is on account of delays with his own application to the European Court of Human Rights\u201d.","12.The applicant made further representations against removal on 10June 2010. Those representations were treated as an application for revocation of the deportation order, but on 17 November 2010 the Secretary of State refused to revoke the order. However, following an appeal by the applicant, the Secretary of State withdrew the refusal decision on 12July 2011.","13.On 19 November 2010 the applicant filed a claim for judicial review, contending that his ongoing detention was unlawful. Permission was granted on 17 June 2011 but a further application for bail was refused. On 13 July 2011, some two weeks after the Court ruled in Sufi and Elmi v. the United Kingdom (nos. 8319\/07 and 11449\/07, 28 June 2011), the applicant was granted bail.","14.A hearing took place on 7 October 2011. Pursuant to the principles set down by the High Court in R. v. Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 (see section on domestic law below), the Secretary of State cannot lawfully detain a person pending removal for longer than a reasonable period and, if it becomes apparent that the deportation cannot be effected within a reasonable period, the detention will become unlawful even if the reasonable period has not yet expired. The applicant claimed that his detention was in breach of the principles (a) on or after 16 June 2009 when the Court granted an interim measure under Rule39 of the Rules of Court; (b) on or immediately after 16 June 2010 when he applied to revoke the deportation order; or (c) at all points after the revocation refusal on 17 November 2010.","15.In a judgment dated 14 November 2011 the Administrative Court dismissed the claim. It noted that in deciding whether or not there was a realistic prospect that deportation would take place within a reasonable time, the risk of absconding or re-offending were \u201cof paramount importance\u201d but neither risk could be regarded as a \u201ctrump card\u201d. Moreover, the fact that the period of detention occurred while the applicant was pursuing an appeal or comparable judicial process would also be a highly relevant factor, especially if there was a risk of absconding or reoffending.","16.The court noted that the applicant in the present case had six convictions for absconding and the Immigration Judges had consistently concluded that he was a significant abscond risk. It agreed with the Immigration Judges and also concluded that the risk was plainly substantial on the evidence available. Equally, the court took into account the fact that the applicant had family in the country at the times he absconded and therefore, contrary to his assertions, their presence did not remove the risk of absconding. Likewise, the Secretary of State\u2019s detention reviews had characterised the risk of the applicant reoffending as \u201chigh\u201d. The court further noted that the applicant\u2019s offences became less serious and more intermittent as time went on. However, the fact remained that while he was free he was committing offences of such seriousness as to require him to be imprisoned, including robbery and public order offences. The court also considered whether alternatives to detention could be used such as electronic tagging, monitoring by telephone and regular reporting. However, given the applicant\u2019s history of absconding, it concluded that the alternatives would not have been sufficient and there was an absence of adequate assurances from the applicant.","17.At the time the Administrative Court noted that the interim measure under Rule 39 of the Rules of Court, was awaiting a lead judgment on returns to Mogadishu (Sufi and Elmi, cited above) and it was clear that there would be no resolution of the applicant\u2019s claim - and the interim measure would therefore not be lifted - before that judgment was handed down. However, the Administrative Court observed that at the time the interim measure was indicated, there was uncertainty about when that judgment could be expected. Moreover, while the applicants in Sufi and Elmi would have had a reasonable to good prospect of success, a positive outcome had not been inevitable. Consequently, the Administrative Court did not accept that there was not, at the time the interim measure was indicated, a realistic prospect of removing the applicant within a reasonable time.","18.Furthermore, the court did not accept that by the time of the applicant\u2019s application for a revocation order, a reasonable period had already expired or that there was no realistic prospect of deportation within a reasonable time. In addition, it observed that the Secretary of State had been entitled to take two weeks to consider the applicant\u2019s personal situation in light of the judgment in Sufi and Elmi. It therefore did not consider his continued detention up to 13 July 2011 to be unlawful.","19.The applicant was granted permission to appeal to the Court of Appeal. On appeal, he restated his arguments concerning the Hardial Singh principles which had been advanced in the court below. In addition, he submitted that the detention was vitiated by two public law errors that bore directly on the decision to detain: first, following the indication of the interim measure the Secretary of State had failed to take any reasonable steps to acquaint herself with when it might be lifted; and secondly, that the detention was maintained on the unlawful basis that the applicant could reduce the length of time in detention by withdrawing his application to the Court and returning voluntarily to Somalia. Finally, the applicant argued that his detention was in breach of Article 5 of the Convention.","20.In its judgment of 20 October 2012, the Court of Appeal conducted an extensive review of the circumstances of the case, in particular the fact that the applicant\u2019s appeal against deportation as well as three separate bail applications had been rejected by immigration judges, as well as the broader context in relation to the on-going litigation concerning removals to Somalia both before the domestic courts and tribunals as well as before this Court (see \u00a7\u00a7 28 to 32). It took into consideration the fact that the Rule39 measure applied in the applicant\u2019s case did not involve any specific assessment of risk towards him by this Court, since at the material time this Court had adopted a fact-insensitive approach towards Rule 39 measures in respect of removals to Somalia, and noted the consequence that from October 2008 this Court had adjourned 116 applications concerning removal to Somalia. It also took account of correspondence between the Government and the registry of this Court from which it was clear that from April2009 the Court would be granting a fact-insensitive Rule 39 measure to any applicant with removal directions to Mogadishu as well as the separate correspondence between the Government and this Court concerning the progress of Sufi and Elmi, cited above and the linked domestic case law.","21.With regard to the Hardial Singh ground, the Court of Appeal stated that there could be a realistic prospect of success without it being possible to specify or predict the date by which, or the period in which, removal can reasonably be expected to occur. It accepted that at the time of receipt of the Rule39 measure in the applicant\u2019s case, although it was not possible to say when the proceedings before the Court would be concluded, there was nonetheless a reasonable prospect of their being concluded and of removal being effected within a reasonable time. Likewise, the Court of Appeal saw no reason to differ from the overall conclusion of the lower court on the lawfulness of the applicant\u2019s detention at the time of the application for revocation of the deportation order or after the judgment in Sufi and Elmi was handed down. Lord Justice Elias dissented on one point only: acknowledging that \u201cthere is no one right answer to the question what is a reasonable period\u201d, he believed that the period of two weeks which elapsed following the judgment in Sufi and Elmi before the applicant was released from detention was not reasonable in all the circumstances.","22.With regard to the second ground of appeal, the court accepted that if the applicant were able to show that the decisions to maintain his detention were vitiated by public law he would succeed in establishing that the detention was unlawful and would have a claim of false imprisonment. However, the Court of Appeal found that although some of the passages in the review forms were not very happily expressed, they did not involve any legal error. Moreover, as the same conclusion was reached regardless of whether or not reference was made to the question of voluntary return, it appeared that the applicant\u2019s refusal of this offer played no material part in the assessment of whether detention should be maintained.","23.Finally, the court found that Article 5 \u00a7 1(f) of the Convention added nothing of substance in the present case. In reaching this conclusion, it rejected the applicant\u2019s assertion that Mikolenko v. Estonia, no.10664\/05, 8October 2009 was authority for the proposition that the lack of a realistic prospect of deportation within a defined period rendered detention under Article 5 \u00a7 1(f) unlawful.","24.The Supreme Court refused the applicant leave to appeal on 26March 2013."],"24":["1. The applicant, Mr Zbigniew Jagie\u0142\u0142o, is a Polish national who was born in 1967 and lives in Legionowo.","A. The circumstances of the case","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","3. On 26 September 2009 the applicant \u2019 s son, M.J., who at that time was 19 years old, was arrested by the police. On 29 September 2009 the Gr\u00f3jec District Court decided to detain him on remand for a period of three months on charges of robbery.","4. M.J. was detained in the Radom Remand Centre. For the first three days he was placed in a cell with two other juvenile detainees. Afterwards, he shared a cell with one detainee.","5. On 2 October 2009 M.J. had his breakfast at 7 a.m. and gave the prison officer a few letters he wished to have sent out. His co \u2011 detainee then took a nap and when he woke up he found M.J. hanging from a belt suspended from the bunk bed. He raised the alarm and during the subsequent resuscitation operation, involving a nurse and a doctor from the remand centre, M.J. was placed on the floor and then removed to the adjacent room. At 8.35 a.m. the doctor confirmed M.J. \u2019 s death; the ambulance arrived two minutes later and its team therefore did not take any action.","6. Following the incident, an investigation was opened by the Radom District Prosecutor. The prosecutor ordered a post-mortem examination of M.J. \u2019 s body. She also heard evidence from witnesses, in particular other detainees who had shared the applicant \u2019 s cell. The prosecutor established that upon his arrival at the Radom Centre M.J. had had a conversation with his rehabilitation supervisor ( wychowawca ). On 1 October he had been examined by a psychologist, who conducted a lengthy interview with him. During those meetings M.J. did not make any complaints about his co \u2011 detainees, nor did he voice any other problems. He did not display any symptoms that could have pointed to suicidal tendencies. The psychologist noted that the mental state of M.J. was within the norm and without negative thoughts.","When questioned by the prosecutor, M.J. \u2019 s co-detainees reported conversations in which they had allegedly discussed whether a suicide attempt might warrant his transfer out of the remand centre. However, they did not believe that he was seriously planning such an attempt. One co \u2011 detainee stated that M.J. had seemed sad about his arrest and the possibility of being sentenced to imprisonment. The prosecutor concluded that the first information that M.J. had been having difficulties adapting came from the letters written to his family and the trial court which he had given to the prison guard on the morning of 2 September 2009. In those letters he indicated that he had thoughts about harming himself, but the authorities could not have known the content of those letters prior to his death.","7. The prosecutor took into account the forensic medical opinion prepared by a forensic expert from Cracow University which concluded, on the basis of the post-mortem examination, that the cause of death had been suicide. The opinion established that M.J. had not been abused in any way prior to his death and excluded the involvement of a third person in his death. At the same time the prosecutor dismissed the findings of a private report submitted by the applicant which voiced doubts as to the conclusions of the court-appointed experts. The prosecutor concluded that this document had been prepared by a person who was not a forensic expert and was based on photographic evidence obtained by the family.","8. The prosecutor also noted that a trouser belt was considered as an element of clothing and as such was not listed among dangerous objects that detainees were prohibited from keeping in their cells in the Radom Remand Centre.","9. On 30 September 2011 the prosecutor decided to discontinue the investigation since no offence had been committed. The prosecutor found that the authorities had fulfilled all their duties and obligations during M.J. \u2019 s stay in the remand centre and the subsequent resuscitation attempt.","10. The applicant appealed against the decision.","11. On 8 February 2012 the Radom Regional Court upheld the prosecutor \u2019 s decision. The prosecutor established that M.J. had committed suicide using his own trouser belt. The belt had been confiscated from him by the police upon his arrest on 26 September 2009, but two days later, when he was transferred to the court for a hearing concerning the pre-trial detention order, the belt had been returned to him by the police. Upon his admission to the Radom Remand Centre, M.J. had been allowed to keep his belt. The court also examined the applicant \u2019 s allegations that his son had been encouraged by his co \u2011 detainees to commit suicide or to attempt a fake suicide. All those allegations were found to be unsubstantiated by evidence. It was stressed that M.J. did not make any complaint about conflicts with other detainees, or receiving threats or being abused in any way by them.","12. On 17 July 2011 the applicant brought a civil action for compensation from the State Treasury against the Radom Remand Centre. He sought 2,000,000 Polish zlotys (PLN) for lack of supervision and care of his young son, who had been able to commit suicide whilst in detention.","13. On 29 May 2013 the Gr\u00f3jec Regional Court dismissed the action. The court discerned no failure for which the authorities could be held responsible and considered that they could not have prevented the suicide of the applicant \u2019 s son. The court found that the applicant \u2019 s son had been correctly treated in the remand centre. He had had lengthy interviews with both the rehabilitation supervisor and a psychologist, during which he had been active and had put questions. M.J. \u2019 s behaviour was no different from that of any other detainee. The psychologist had not noticed any worrying or pathological signs. M.J. had appeared sad but displayed no pathological symptoms and had thus not warranted closer supervision.","14. On 30 January 2014 the Lublin Court of Appeal dismissed the applicant \u2019 s appeal. The appellate court agreed with the lower court \u2019 s findings that the authorities could not have foreseen that M.J. would try to commit suicide and thus have prevented it. As regards the issue of allowing M.J. to keep his trouser belt, the court established that the authorities had been obliged to remove all dangerous objects from detainees, but a belt had not been listed as such an object. The answer to the question whether the detention centre should have taken an additional preventive step by removing the belt was dependent on their knowledge that M.J. might pose a danger to his own life. The court established that at the time of the events there were no circumstances known to the authorities which could have enabled them to foresee the suicide risk. The court relied on a ruling by the Supreme Court which held that the obligation to remove a belt from a detainee arises from the circumstances of the case seen in conjunction with the detainee \u2019 s behaviour and not from any legal provision banning the retention of a belt. In the instant case there was no basis for keeping M.J. under closer supervision, which would have included taking his trouser belt from him.","15. On 20 November 2014 the Supreme Court refused to entertain the applicant \u2019 s cassation appeal.","B. Relevant domestic law and practice","16. Article 110a of the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy ) (\u201cthe Code\u201d) listed items that a detainee may keep in his cell. It stated that dangerous items were prohibited.","17. The Ordinance of the Minister of Justice of 31 October 2003 on means of protection of facilities of the Prison Service ( Rozporz\u0105dzenie Ministra Sprawiedliwo\u015bci w sprawie sposob\u00f3w ochrony jednostek organizacyjnych S\u0142u\u017cby Wi\u0119ziennej ) set out a definition of dangerous objects (paragraph 2.30), namely objects that may cause danger to the security and order of the facility, in particular firearms and cold steel weapons, iron-cutting tools, items that might be used for overpowering others, and psychotropic and intoxicating substances.","18. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (\u201cthe CPT\u201d) has developed standards relating to suicide prevention, which provide as follows:","\u201cA person identified as a suicide risk should, for as long as necessary, be kept under a special observation scheme. Further, such persons should not have easy access to means of killing themselves (cell window bars, broken glass, belts or ties, etc.).\u201d"],"25":["THE CIRCUMSTANCES OF THE CASE","5.The applicant was born in 1958 and lives in Nagykoz\u00e1r.","6.The applicant had been working as a tax inspector. In 1996 he applied for early retirement on account of disability. As of 1 April 1996, he was declared to have lost 67% of his capacity to work and was granted a disability pension of 114,880 Hungarian forints (HUF) per month (approximately 370 euros (EUR) at the rate of January 2017). That disability assessment was maintained in 1999, 2003 and 2006.","7.The relevant assessment methodology changed as of 1January 2008. The applicant\u2019s case was reviewed under the new rules in 2009. Without any significant change in his state of health having occurred, he was then found to have lost 50% of his working capacity. As a consequence, his disability pension was terminated and, as of 1 July 2009, he was declared suitable for institutional rehabilitation and granted a monthly rehabilitation allowance in the amount of HUF 152,820 (approximately EUR 490), minus payroll deductions. Under the relevant statute, the benefit could only be granted for a limited period, namely until 31 October 2011 in the applicant\u2019s case. The law allowed for one extension of the time-limit, making the maximum deadline for the benefit 30 June 2012. However, under the law, the overall period allowable for rehabilitation could not exceed three years.","8.The monthly amount payable evolved in the period preceding the deadline. On expiry, it was HUF 173,980 (approximately EUR 570) per month, minus HUF 17,398 in payroll deductions, resulting in a net sum of HUF156,585 (approximately EUR 510).","9.Meanwhile, on 29 December 2011 Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity was enacted. It came into effect on 1January 2012 and introduced a new system of allowances.","10.On 28 March 2012 the applicant applied for a disability allowance under the new law. On 8 May 2012 he was medically examined before an expert panel of the National Rehabilitation and Social Welfare Authority. The applicant\u2019s state of health was rated at 46% and he was classified as being suitable for rehabilitation within a time-frame of thirty-six months. The authority initially granted him HUF 41,850 (approximately EUR140) per month in disability allowance, as of 1 July 2012.","11.On appeal, the applicant\u2019s health score was maintained but the second-instance authority no longer recommended his rehabilitation. The monthly disability allowance corresponding to his situation was eventually set at HUF55,800 (approximately EUR 180).","12.The applicant sought a judicial review before the P\u00e9cs Administrative and Labour Court, but in vain. On 26 May 2014 the K\u00faria rejected his petition for review on the grounds that he had not relied on any particular breach of the law, as required by the Code of Civil Procedure.","13.Following a further legislative amendment of 1 April 2014, the applicant became entitled to a disability allowance of HUF159,100 (approximately EUR 520) per month retroactively as of 1 January 2014."],"26":["1. The applicant, Mr Grigoriy Vladimirovich Smadikov, is a Russian national who was born in 1964 and lives in Khabarovsk.","A. The circumstances of the case","The facts of the case, as submitted by the applicant, may be summarised as follows.","2. In 2012 the applicant was accused of an administrative offence under Article 12.28 of the Federal Code of Administrative Offences (CAO). According to the applicant, he was unaware of the charge.","3. A hearing was listed for 18 June 2012. Since the hearing notification was returned to the court as \u201cafter expiry of the storage term\u201d, the judge rescheduled to 16 July 2012 and issued a new notification. This notification was also returned to the court with the same note.","4. According to the applicant, he remained unaware of the charge and did not receive the above notifications.","5. By a judgment of 16 July 2012 a justice of the peace convicted the applicant; his driving licence was suspended for one year and six months. The applicant allegedly first learned about this judgment on 19 May 2014, when he was involved in a traffic accident.","6. The applicant appealed against the judgment. On 21 July 2014 the Khabarovskiy District Court of Khabarovsk held a hearing; heard the applicant \u2019 s representative (the applicant waiving his right to be present); examined evidence; and upheld the judgment.","7. On 27 August and 3 December 2014 the Khabarovsk Regional Court and the Supreme Court of Russia respectively rejected the applicant \u2019 s applications for review under Article 30.12 of the CAO (see paragraphs 17 \u2011 21 below as regards the applicable procedure).","B. Relevant domestic law and practice","1. Federal Code of Administrative Offences","(a) General provisions","8. Under Article 25.11 and 28.4 of the CAO a prosecutor institutes administrative-offence proceedings for a number of offences, but also has the right to institute administrative-offence proceedings in any other case. He can participate in the examination of the case, lodge various applications, and issue a report on issues arising in the case. He can also appeal against the decision in the case, irrespective of whether he previously participated in the proceedings.","9. Under the CAO, depending on the subject matter decisions concerning administrative offences can be issued either by a non-judicial authority or by a court (Chapter 23 of the CAO).","(b) Ordinary appeal procedure","10. At the relevant time, Chapter 30 of the CAO contained provisions concerning review of such decisions.","11. Review could be sought by the person or legal entity accused of the administrative offence, the victim of the offence, or their representative (Article 30.1). If the decision on the administrative offence concerned a legal entity or a person engaged in entrepreneurial activities it was reviewed by a commercial court in accordance with the rules of commercial procedure (Article 30.1).","12. An ordinary appeal against a ruling on an administrative offence could be lodged within ten days (or fifteen days for some offences) following receipt of the copy of the decision (Article 30.3). The appeal should be examined within ten days (or less for some offences) following receipt of the case file by the reviewing court or authority (Article 30.5). The reviewing authority or court is not bound by the scope of arguments, and reviews the case in its entirety (Article 30.6).","13. Article 30.10 gave prosecutors the right to seek review of decisions on administrative offences within the procedure and time-limits set out in Articles 30.1-30.3 of the CAO.","(c) (Supervisory) review procedure","( i ) Before December 2008","14. Article 30.11 provided for further review of final court decisions on administrative offences. A regional prosecutor or deputy or the Prosecutor General of the Russian Federation or deputy had the right to apply for such a further review. According to the ruling no. 5 of 24 March 2005 by the Plenary Supreme Court of Russia, individuals prosecuted in an administrative-offences case also had a right to lodge an application for supervisory review (paragraph 34).","15. If the judge in the supervisory review had doubts about the lawfulness of the impugned court decisions he or she could request the case file and then examine the case in its entirety, going beyond the grounds for review raised by the author of the supervisory-review application (paragraph 34 of the ruling of 24 March 2005).","16. Supervisory review was to be carried out by the presidents of the regional courts or their deputies, or by the President of the Supreme Court of Russia or her deputies. Reviewing this provision, the Constitutional Court of Russia (decision no. 113-O of 4 April 2006 concerning the constitutional interpretation of Article 30.11 of the CAO; this decision was officially published in July 2006) stated that the reviewing court was to inform the person affected by the administrative offence proceedings about the application for review lodged by the victim. The Constitutional Court also stated that until legislative amendment of the CAO concerning the scope of review, grounds for review, the reviewing courts \u2019 powers, time \u2011 limits for seeking review, and the procedure for such a review, the reviewing courts were to be guided by the relevant provisions of Chapter 36 of the Code of Commercial Procedure (see paragraphs 24 -29 below).","(ii) After legislative amendments in force after 20 December 2008","17. Article 30.11 of the CAO was deleted. Article 30.12 provides that the first-instance and appeal judgments, which became final, can be challenged by way of review by the defendant or his counsel, the victim, legal representative of a minor or another vulnerable person, or legal representatives of a legal entity. Review can be sought by a regional prosecutor or deputy or the Prosecutor General or deputy. Since October 2014 the public official who submitted the administrative offence case for judicial examination is also entitled to seek review.","18. Requests for review should be lodged before regional courts or the Supreme Court of Russia. Such requests are to be examined by the presidents of such courts or their deputies. The Supreme Court is empowered to deal with appeals against decisions taken on review at the regional level. In other cases, the Supreme Commercial Court should have similar competence (Article 30.13).","19. Requests for review should indicate the grounds for the review (Article 30.14). The scope of the review should be limited to the grounds indicated in the request and observations in reply. If the interests of legality so require, the review judge can review the case in its entirety. Renewed requests for review on the same grounds before the same court are not allowed (Article 30.16).","20. The reviewing court should issue a decision within two months of receipt of the application or within one month of receipt of the case file, if so requested by the reviewing court (Article 30.16).","21. The Constitutional Court held that the review procedure in respect of final court decisions under the CAO is aimed at the correction of fundamental errors in such decisions, in line with the requirements of Article 4 \u00a7 2 of Protocol No. 7 to the Convention (decision no. 1788-O of 16 July 2015).","22. Apparently, the decision of 113-O of 4 April 2006 was not applied by some regional courts (see decision no. 4a10-790 of 31 August 2010 by the Chelyabinsk Regional Court, and, a contrario, decision no. 4-a-854 of 24 November 2010 by the Rostov Regional Court); some regional courts stated that this decision was no longer applicable following the deletion of Article 30.11 of the CAO during the legislative reform in December 2008 (see decision no. 4a10-1227 of 28 December 2010 by the Chelyabinsk Regional Court). It appears that a number of regional courts have recently maintained the position that there is no time-limit for seeking review proceedings under the CAO:","- Moscow City Court: decisions no. 4a-1328\/15 of 1 June 2015, no. 4a \u2011 3046\/2015 of 8 September 2015, no. 4a-2641\/2015 of 2 October 2015, no. 4a-3465\/2015 of 5 October 2015, no. 4a-4770\/2015, no. 4a \u2011 123\/16 of 15 March 2016;","- Novosibirsk Regional Court: decisions no. 4a-214\/2016 of 2 March 2016, no. 4a-252\/2016 of 14 March 2016, no. 4a-260-2016 of 6 April 2016, no. 4a-376-2016 of 12 May 2016;","- Krasnoyarsk Regional Court: decisions no. 4a-606\/2015 of 6 August 2015, no. 4a-624\/2015 of 7 August 2015;","- Primoskiy Regional Court: decisions no. 7-21-958 of 19 August 2015, no. 7-21-1034 of 14 September 2015;","- Ivanovo Regional Court: decision no. 4a-284\/2015 of 8 October 2015;","- Pskov Regional Court: decision no. 7-78\/2015 of 9 June 2015;","- Chelyabinsk Regional Court: decision no. 4a16-157 of 1 March 2016;","- Supreme Court of the Tatarstan Republic: decision no. 4a-299 of 14 April 2016.","2. Code of Commercial Procedure","23. Cases concerning the charges under the CAO in respect of legal entities and entrepreneurs are examined according to the procedures prescribed by the Code of Commercial Procedure ( CCOmP ).","24. Prior to the changes which entered into force on 6 August 2014 (Federal Law no. 186-FZ of 28 June 2014), supervisory review of final judgments issued by commercial courts was regulated under Chapter 36 of the CComP.","25. Article 292 of the CComP provided that supervisory review of final judgments was carried out by the Supreme Commercial Court of Russia. This review could be sought by the parties to the proceedings and, in some cases, by a prosecutor (see also Articles 42 and 52 of the CComP ).","26. The grounds for review included \u201csubstantial violations of rights and legitimate interests relating to entrepreneurial or another economic activity as a result of a violation or wrong application of material or procedural law\u201d (Article 292 of the CComP ). The application for review was to be lodged within three months of the date the last impugned judgment entered into force, provided that the other review remedies had been exhausted (ibid.).","27. Article 293 provided that the application was to be examined by a panel of judges, who had to decide whether the case was to be transferred for examination by the Presidium of the Supreme Commercial Court (see also Article 299 of the CComP ).","28. Article 304 of the Code contained the grounds for varying or overturning lower courts \u2019 decisions: violation of consistency in interpretation and application of the law by commercial courts; violation of human rights and freedoms, as protected by the well-recognised principles and rules of international law or by an international treaty of the Russian Federation; and violation of the public interest.","29. On this Court \u2019 s position concerning the supervisory review procedure under the CComP prior to the amendments in 2014, see Kovaleva and Others v. Russia ( dec. ), no. 6025\/09, 25 June 2009.","30. For a summary of the amended provisions of the CComP in force since August 2014, see Sakhanov v. Russia ( dec. ), no. 16559\/16, \u00a7\u00a7 13-30, 28 October 2016."],"27":["5.The applicant was born in 1990.","A.Background to the case","6.The applicant is a man who is intellectually disabled. On 14February 2001 he was taken, with his two brothers, into public care by the child welfare authorities and placed temporarily with a foster family with whom they had already been living since August 2000. The foster family lived in a village situated about 50 km from the applicant\u2019s home town, which is in the South of Finland.","7.In June 2006 the foster family, the applicant and one of his brothers moved to a village in the North of Finland. The removal of the children was not authorised by the competent child welfare authority. In June 2007 the applicant finished his compulsory school education as a special needs student integrated into a normal school. Thereafter his foster parents planned to place him in a vocational school some 300 km away from their village, without authorisation by the competent child welfare authority.","8.On 11 July 2007 the competent child welfare authority decided to remove the applicant from the foster family and to place him in a disabled children\u2019s home in his home town in southern Finland. The authority found that the foster care had not been satisfactory in the light of the fact that the foster parents had made important decisions without consulting the child welfare authorities, such as moving north and planning to place the applicant in a vocational school 300 km away from their home. The foster parents brought an appeal in court against that decision, but the decision was upheld by the Administrative Court (hallinto-oikeus, f\u00f6rvaltningsdomstolen) on 18February 2008 and subsequently by the Supreme Administrative Court (korkein hallinto-oikeus, h\u00f6gsta f\u00f6rvaltningsdomstolen) on 10 December 2008.","9.On 31 July 2007 the applicant was placed in a children\u2019s home in his home town in southern Finland. One of his brothers was placed in the same home in the autumn of 2007.","10.On 23 July 2008 the applicant turned 18. On 13 August 2008 he began studying at a local vocational school. On 4 November 2008 a mentor (edunvalvoja, intressebevakare) was appointed for the applicant for matters other than those pertaining to his person. The applicant could thus freely make his own decisions in matters pertaining to his own person.","11.On 30 December 2008 the social welfare authorities requested the District Court (k\u00e4r\u00e4j\u00e4oikeus, tingsr\u00e4tten) to appoint a mentor for the applicant also for matters pertaining to his person. The request was, inter alia, based on the fact that a conflict had emerged between the child welfare service and the applicant\u2019s former foster parents as to where the applicant should live. The appointment of an external mentor was therefore needed in order to assess the applicant\u2019s best interests and settle the matter accordingly. The applicant as well as his biological parents were heard before the court and none of them objected to the appointment of such a mentor.","12.On 25 January 2009 the former foster parents took the applicant to the North of Finland, invoking his decision to move there to live with them. He considered them to be his real family. The next day, the social welfare authorities arrived with the police to fetch the applicant and to take him back, against his will, to his home town. He was placed in his home town in a special living unit for intellectually disabled adults.","13.On 18 June 2009 the District Court, on the basis of the Guardianship Service Act, appointed a mentor for the applicant in matters concerning his property and economy, as well as matters pertaining to his person to the extent that the applicant was unable to understand their significance. The court found that, owing to his diminished mental faculties, the applicant was incapable of looking after his own interests and taking care of his personal affairs. The decision was based on medical records concerning the applicant\u2019s level of development and on submissions according to which the applicant was gullible and keen on small children\u2019s play. The appointed mentor was an official of the local public legal aid office entrusted with functions of this kind.","14.On 7 February 2011, after having received a psychologist\u2019s report dated 26 November 2010 on the applicant, the appointed mentor decided, against the applicant\u2019s will, that it was in his best interests for him to live in his home town, where his family members also lived. He had better educational and work opportunities there than in the village in the North of Finland, where he only knew his elderly former foster parents. The applicant was given a possibility to go for holidays to his foster parents in the North of Finland.","B.Impugned proceedings","15.On 8 April 2011 the applicant asked the District Court to discharge the mentor appointed for him from her duties as far as matters pertaining to his place of residence and education were concerned. He requested that another person of his choosing be appointed as his mentor in those matters.","16.On 22 June 2011 the District Court, having heard the applicant in person, as well as witnesses including the applicant\u2019s mentor, his former foster mother, his brother and two staff members from his housing service, refused his request. In its judgment, the court put on record the various testimonies. According to the record of the testimony of the applicant\u2019s mentor, she had discussed with the applicant his plan to move prior to her decision. The mentor was of the view that the applicant did not understand all the consequences of the plan, and did not realise that the good things in his present situation would not be relocated with him. In the light of all the circumstances, the mentor considered that the move would have been against the applicant\u2019s interests.","17.As regards the facts, the court recalled the background of the previous decision, taken on 18 June 2009 (see paragraphs 11 and 13 above). The court further noted that, according to an expert evaluation dated 26November 2010 and established by a psychologist, the applicant\u2019s decision-making skills were equal to those of a child aged between six and nine years. Consequently, the evaluation concluded that the applicant was not able to consider whether his plans about future were realistic and what consequences or implications they would have. The court noted that the applicant had told the court that he had no particular complaints about his current situation and that according to the witness statements he enjoyed his apartment and work in his home town. There was no evidence that the applicant\u2019s situation in his home town was not good. The court found that the applicant clearly did not understand what it would be like to live in a remote part of the country, especially as he had previously lived there for only one year, and what the implications of the move would be for his situation. Moreover, the court found it uncertain how clear or strong the applicant\u2019s will actually was, taking into account the evidence regarding his gullibility. It was likely that his opinion was influenced by that of the former foster parents. The applicant\u2019s development had improved in his home town and he had been able to live in a special unit for intellectually disabled adults, to go to work and to cycle independently around town. The applicant had in his home town a support network consisting of relatives, friends and staff of the social welfare authorities, a job, hobbies and educational possibilities. Due to the remote and isolated location of the former foster parents\u2019 home, the applicant would miss out on all these possibilities if he were to move there. The court further noted that according to the plan, the applicant would attend a vocational school far away from his new home, requiring daily long-distance trips each school day, more specifically a 15 km taxi ride to a bus station followed by a 70 km bus transport, and the reverse after school. The court was in doubt as to whether it was reasonable to expect that the applicant could cope with such demands on a daily basis.","18.As matter of law, the District Court stated that as, on the evidence, the applicant was not able to understand the significance of the envisaged decision, the mentor was not required, or even permitted, to resolve the question of the applicant\u2019s place of residence in accordance with the applicant\u2019s own wishes. Under such circumstances the mentor was required to take the decision on the basis of an assessment of the applicant\u2019s best interests.","19.Taking into account the evidence and the factual findings referred to above (see paragraph 17 above), the District Court concluded that it was in the applicant\u2019s best interests to remain in his home town. The mentor had not acted in breach of her powers and the District Court found no reason to replace the mentor by another person as regards matters concerning the applicant\u2019s place of residence and his education.","20.On 15 July 2011 the applicant lodged an appeal with the Turku Court of Appeal (hovioikeus, hovr\u00e4tten). He pointed out that the Finnish Constitution guaranteed everyone the right to choose their place of residence. Moreover, a mentor had to enjoy the confidence of his or her client, which was not so in the present case.","21.On 9 May 2012 the Turku Court of Appeal, after holding an oral hearing, rejected the applicant\u2019s appeal and upheld the District Court\u2019s decision by two votes to one. The Court of Appeal found no reason to deviate from the assessment of the evidence as conducted by the District Court and affirmed the conclusions reached by the latter. The dissenting judge found that the former foster mother had been the only adult with whom the applicant had had a long-standing and safe relationship in his life. The applicant had clearly understood the importance of this relationship in his life, he knew the former foster family and what life with them entailed, although he might not be able to understand all the implications of the envisaged move. When the applicant had been removed from the former foster family in 2007 and placed in a children\u2019s home in Southern Finland, no specific reasons had been given as to why this measure had been in the applicant\u2019s best interests. The decision taken subsequently by the mentor in February 2011 had merely confirmed the earlier decision. These decisions had created distrust between the applicant and his mentor. As both the present mentor and the proposed replacement were equally competent, the one who had the applicant\u2019s trust should be chosen.","22.By a letter dated 6 July 2012 the applicant lodged an appeal with the Supreme Court (korkein oikeus, h\u00f6gsta domstolen), reiterating the grounds of appeal already submitted before the Appeal Court.","23.On 8 February 2013 the Supreme Court refused the applicant leave to appeal.","C.The applicant\u2019s current situation","24.According to the information provided by the Government, in July2013 the applicant learned that his foster father had died and he attended his funeral in Northern Finland. From 2010 to 1 January 2015 the applicant resided in his home town in a block of flats providing special care for persons with intellectual disability. Since 2 January 2015 he has been residing in sheltered accommodation, in a small two-room flat. He is employed by his home town, undertaking work five days a week in a shelter for intellectually disabled people. He is a talkative, efficient and well-liked employee and fits in very well in the working community.","25.The applicant\u2019s former foster mother is in contact with the applicant via telephone but the frequency of their contact is not known. She moved to the eastern part of Finland before Christmas 2015 and invited the applicant to spend Christmas with her, but in the end he decided not to visit her. Instead, the applicant spent Christmas with his brother and other relatives. According to the Government, the applicant has not discussed the possibility of moving elsewhere for a long time. He is happy with his work and plays floorball twice a week as a hobby. The applicant states that he has stopped talking about his desire to move since there is no point in doing so, given the fact that the social welfare authorities do not want him to leave his home town. Although he now has a girlfriend in his home town, he maintains that his true and most sincere wish is still to live with or near to his former foster mother. There is nothing in his home town that keeps him there or makes him want to stay there.","A.United Nations","1.United Nations Convention on the Rights of Persons with disabilities","39.In December 2006 the United Nations Convention on the Rights of Persons with Disabilities (hereinafter \u201cthe UNCRPD\u201d) was adopted. It entered into force internationally in May 2008. By the end of September2016, 44 out of the 47 Council of Europe member States have ratified the Convention. It has also been ratified by the European Union. Finland ratified the Convention in 2016 and it entered into force on 10June 2016 (the ratification was based on Government Bill HE 284\/2014 vp., from which it transpires that it was considered that there was no need or cause to amend the current relevant Finnish legislation).","40.Article 12 of the Convention is entitled \u201cEqual recognition before the law\u201d and provides the following:","\u201c1.States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.","2.States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.","3.States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.","4.States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person\u2019s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person\u2019s rights and interests.","5.Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.\u201d","41.Article 16 of the Convention is entitled \u201cFreedom from exploitation, violence and abuse\u201d and provides the following:","1.States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.","2.States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender- and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognise and report instances of exploitation, violence and abuse. States Parties shall ensure that protection services are age-, gender- and disability-sensitive.","3.In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.","4.States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs.","5.States Parties shall put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.\u201d","2.UN Committee on the Rights of Persons with Disabilities","42.In 2014 the United Nations Committee on the Rights of Persons with Disabilities adopted its General Comment No. 1 concerning Article 12 of the UNCRPD, i.e. equal recognition before the law.","43.The Committee considers that States parties must \u201creview the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person\u2019s autonomy, will and preferences\u201d (\u00a7 26).","44.In this context, the Committee defines substitute decision-making regimes as systems where (i) legal capacity is removed from a person, even if this is in respect of a single decision; (ii) a substitute decision-maker can be appointed by someone other than the person concerned, and this can be done against his or her will; and (iii) any decision made by a substitute decision-maker is based on what is believed to be in the objective \u201cbest interests\u201d of the person concerned, as opposed to being based on the person\u2019s own will and preferences (\u00a7 27).","45.The Committee considers that the States parties\u2019 obligation to replace substitute decision-making regimes by supported decision-making requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives. The development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with Article12 of the Convention (\u00a7 28).","B.Council of Europe","46.On 23 February 1999 the Committee of Ministers of the Council of Europe adopted \u201cPrinciples concerning the legal protection of incapable adults\u201d, Recommendation No. R (99) 4. The relevant provisions of these Principles read as follows:","Principle 2 \u2013 Flexibility in legal response","\u201c1.The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal responses to be made to different degrees of incapacity and various situations.","...","4.The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.\u201d","Principle 3 \u2013 Maximum reservation of capacity","\u201c1.The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.","2.In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...\u201d","Principle 6 \u2013 Proportionality","\u201c1.Where a measure of protection is necessary it should be proportionate to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.","2.The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ...\u201d","Principle 13 \u2013 Right to be heard in person","\u201cThe person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.\u201d","Principle 14 \u2013 Duration review and appeal","\u201c1.Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews.","...","3.There should be adequate rights of appeal.\u201d","47.On 2 February 2005 the Committee of Ministers adopted a Resolution on safeguarding adults and children with disabilities against abuse, ResAP(2005)1, the relevant parts of which read as follows:","\u201cI.Definition of abuse","1.In this Resolution abuse is defined as any act, or failure to act, which results in a breach of a vulnerable person\u2019s human rights, civil liberties, physical and mental integrity, dignity or general well-being, whether intended or through negligence, including sexual relationships or financial transactions to which the person does not or cannot validly consent, or which are deliberately exploitative.","...","3.These abuses require a proportional response \u2013 one which does not cut across legitimate choices made by individuals with disabilities but one which recognises vulnerability and exploitation. The term \u2018abuse\u2019 therefore refers to matters across a wide spectrum, which includes criminal acts, breaches of professional ethics, practices falling outside agreed guidelines or seriously inadequate care. As a consequence, measures to prevent and respond to abuse involve a broad range of authorities and actors, including the police, the criminal justice system, the government bodies regulating service provision and professions, advocacy organisations, user networks and patient councils, as well as service providers and planners.","II.Principles and measures to safeguard adults and children with disabilities against abuse","1.Protection of human rights","Member States have a duty to protect the human rights and fundamental freedoms of all their citizens. They should ensure that people with disabilities are protected at least to the same extent as other citizens.","Member States should recognise that abuse is a violation of human rights. People with disabilities should be safeguarded against deliberate and\/or avoidable harm at least to the same extent as other citizens. Where people with disabilities are especially vulnerable, additional measures should be put in place to assure their safety.\u201d","48.The Council of Europe Disability Strategy 2017-2023 sets out, inter alia, the following:","\u201c3.4.Equal recognition before the law","Equal recognition before the law, as defined among others by the UNCRPD (Article 12) refers to the two parts of legal capacity, the capacity to hold rights and duties and the capacity to act on them. Legal capacity and access to justice are essential to real participation in all areas of life and full inclusion of persons with disabilities in society. Legal capacity is in fact connected to all human rights and their enjoyment.","...","States are required under the UNCRPD, as far as possible to replace substituted decision-making with systems of supported decision-making. Possible limitations on decision-making should be considered on an individual basis, be proportional and be restricted to the extent to which it is absolutely necessary. Limitations should not take place when less interfering means are sufficient in light of the situation, and accessible and effective legal safeguards must be provided to ensure that such measures are not abused.","Council of Europe bodies, member States and other relevant stakeholders should seek to:","a)Support member States in their efforts to improve their legislation, policies and practices with regard to ensuring legal capacity of persons with disabilities.","b)Identify, collect and disseminate existing good practices on supported decision-making systems and practices that persons with disabilities have available for being able to exercise their legal capacity and have access to choices and rights.\u201d"],"28":["6.The applicant was born in 1946 and lives in St Petersburg.","7.According to the applicant\u2019s medical history he has suffered from various mental conditions since 1979 and has been admitted to hospital and treated in various psychiatric facilities several times. The applicant\u2019s records contain information on alcohol abuse, suicide attempts, threats of violence against neighbours and medical professionals, and about a number of organic, psychiatric and personality disorders, including psychosis and paranoia.","8.Between 1998 and 2007 the applicant was taken to hospital at least six times following suicide attempts, alcohol-induced paranoia, claims of unspecified murder threats, claims about explosives planted in various public places and threats to neighbours that he would blow up a petrol canister.","9.According to a report issued on 29 March 2007 by the local ambulance service the applicant called for emergency assistance at his home twelve times in March 2007 (five times on 28 March 2007 alone). On each occasion there was no apparent reason for the call. The applicant behaved aggressively towards medical personnel, made sexual advances to female doctors and consumed alcohol in their presence. The service requested a police escort for further visits to his address. They stated that visits to the applicant meant there were delays in providing assistance to people who were in genuinely life-threatening situations and presented a danger to ambulance staff.","10.According to a police report of 2 April 2007 the applicant contacted the police three times in two days alleging that nomadic tribes had attacked him, that he had found an unexploded Second World War shell, and that explosives had been placed at an industrial facility. The applicant\u2019s alerts were acted upon and found to be groundless.","11.On 3 April 2007 the applicant was admitted without his consent to StPetersburg Psychiatric Hospital no. 3 (\u041f\u0441\u0438\u0445\u0438\u0430\u0442\u0440\u0438\u0447\u0435\u0441\u043a\u0430\u044f \u0431\u043e\u043b\u044c\u043d\u0438\u0446\u0430 \u21163 \u0433.\u0421\u0430\u043d\u043a\u0442-\u041f\u0435\u0442\u0435\u0440\u0431\u0443\u0440\u0433\u0430) (\u201cthe hospital\u201d). The grounds for his admission were repeated, groundless telephone calls to the police about the presence of explosives at an industrial facility, a series of calls to the emergency medical services with offers of sexual services to female doctors, as well as threats of violence against ambulance staff. The applicant refused to be treated or admitted to hospital voluntarily.","12.On the same day a panel composed of the hospital\u2019s resident psychiatrists examined the applicant and his medical history and diagnosed him with an organic mental disorder coupled with a psychiatric and paranoid personality disorder. The panel also found that the applicant was a danger to himself and others and that there was a risk of significant damage to his health due to the likely deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance. The relevant parts of the panel\u2019s report read as follows:","\u201cThe patient had a habit of intoxicating himself heavily with alcohol, and suffered from a cranial trauma. Psychiatric disorders since 1979. Clinical history [shows] behavioural problems including affective instability, querulous ideas about his own relevance and persecution amounting to delusions. [He] has been frequently treated in psychiatric facilities owing to aggressive and auto-aggressive habits in the context of acute morbid emotional experiences. Admissions to hospital were, as a rule, \u2018involuntary\u2019.","In the course of clinical development the organic defects have become predominant manifesting themselves through circumstantiality, a coarsening of emotions, and the exacerbation of his querulous tendencies. The current admission is due to inappropriate behaviour: informed the police that explosives had been planted somewhere, conflicts with [nomadic tribes], called for emergency medical services and when they arrived threatened the personnel, behaved improperly towards women.","During examination \u2013 fully aware of his surroundings, answers questions in detail. \u2018Ingratiating\u2019. Believes that he is being persecuted by police because he is \u2018a person of the Stalinist era, and they do not want to work\u2019, shows an uncritical attitude towards [his] own behaviour, does not correct ideas of own relevance and persecution. Denies perceptual illusions.","Having regard to the lack of a critical attitude towards his improper behaviour, the presence of ideas about his own relevance and persecution, [it] can be concluded that he falls under section 29 (a) and (c) of the Law of the Russian Federation on Psychiatric Assistance and Guarantees of Citizens\u2019 Rights Related to Its Administration of 1992 (\u201cthe Psychiatric Assistance Act 1992\u201d).\u201d","13.On 4 April 2007 the hospital applied for a court order for the involuntary placement of the applicant in a hospital under section 29(a) and(c) of the Psychiatric Assistance Act 1992 as the applicant was a danger to himself and others and risked significant damage to his health from a likely deterioration or aggravation of his condition if there was no psychiatric treatment.","14.On 9 April 2007 the Primorskiy District Court of St Petersburg (\u041f\u0440\u0438\u043c\u043e\u0440\u0441\u043a\u0438\u0439 \u0440\u0430\u0439\u043e\u043d\u043d\u044b\u0439 \u0441\u0443\u0434 \u0433. \u0421\u0430\u043d\u043a\u0442-\u041f\u0435\u0442\u0435\u0440\u0431\u0443\u0440\u0433\u0430) granted the application to admit the applicant to hospital without his consent. The hearing was attended by the applicant, a court-appointed lawyer, Mrs L., the psychiatrists, and the prosecutor. During the hearing the District Court examined the applicant\u2019s medical history and heard the testimony of the psychiatrists, who referred to severe alcohol abuse, erratic behaviour, frivolous calls to the police, and threatening conduct towards medical personnel. The trial record indicates that during the hearing the applicant claimed that informing the police about the alleged presence of explosives at a factory was his civic duty, complained about hospital regime and facilities and referred to his friendship with certain media personas in Russia.","The relevant parts of the court order authorising the applicant\u2019s treatment read as follows:","\u201c... The recommendation for admission to hospital was issued ... due to the presence of a severe psychiatric disorder, which can cause significant damage to [his] health due to a deterioration or aggravation of the psychiatric condition in the absence of psychiatric help.","Mr V.K. did not consent to his admission to hospital since he refused treatment.","On 3 April 2007 he was examined by a panel of psychiatrists, who established that [he is] aware of his surroundings, answers questions in detail, believes that he is being persecuted by the police because he is \u2018a person of the Stalinist era, and they do not want to work\u2019, shows an uncritical attitude towards [his] behaviour, does not correct his ideas of his own relevance and persecution, denies perceptual illusions. On the basis of their observations the panel concluded that the treatment of MrV.K. as an inpatient is necessary. The court has no grounds to doubt the conclusions of the panel\u2019s report. There is no evidence to the contrary.","Having considered the evidence in the case, having heard the opinion of the doctors, of the lawyer, Mrs L., who considered inpatient treatment to be reasonable, and the opinion of the prosecutor ... the court concludes that the application of the Hospital\u2019s chief physician is well-founded because Mr V.K. suffers from a severe disorder which indicates a risk of significant damage to [his] health due to a deterioration or aggravation of his psychiatric condition in the absence of psychiatric help.\u201d","15.On 20 April 2007 the applicant was formally discharged from hospital after an improvement in his mental health.","16.On 25 April 2007 the applicant, represented by Mr D. Bartenev, a lawyer practising in St Petersburg, lodged an appeal against the order of 9April 2007, stating, inter alia, that the legal aid lawyer Mrs L. had failed perform her functions properly. On the same day the applicant left hospital.","17.On 2 August 2007 the applicant\u2019s appeal was summarily dismissed in a short decision by the St Petersburg City Court (\u0421\u0430\u043d\u043a\u0442-\u041f\u0435\u0442\u0435\u0440\u0431\u0443\u0440\u0433\u0441\u043a\u0438\u0439 \u0433\u043e\u0440\u043e\u0434\u0441\u043a\u043e\u0439 \u0441\u0443\u0434). The relevant parts read as follows:","\u201c ... In granting the application the [lower] court concluded that there were good reasons to place Mr V.K. in hospital against his will.","The court\u2019s conclusion relied on the evidence that had been submitted to it ... [It is] proven by the report of the panel of the Hospital\u2019s resident psychiatrists, which describes Mr V.K.\u2019s condition and confirms the existence of a severe psychiatric disorder indicating a risk of significant damage to [his] health due to a deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance.","The arguments in the statement of appeal that legal aid lawyer Mrs L. did not duly discharge her professional functions may not serve as a ground for annulment of the order, which is lawful on the merits ... \u201d","18.Nothing in the materials available to the Court suggests that the applicant had ever been restricted in his legal capacity or appointed a legal guardian."],"29":["3.The list of applicants and the relevant details of the applications are set out in the appended table.","4.The applicants complained under Article 5 \u00a7 3 of the Convention of the excessive length of their pre-trial detention. They further complained under Article 5 \u00a7 4 of the Convention. In particular, in application no.49507\/10 the applicant argued that a court had examined appeals against the detention orders in his and his counsel\u2019s absence, and in application no.76349\/12 the applicant submitted that his appeal against a detention order had not been examined \u201cspeedily\u201d."],"30":["5.The applicants, Bangladeshi migrants living in Greece without a work permit, were recruited on different dates between October 2012 and February 2013 in Athens and other places, to work on the region\u2019s biggest strawberry farm, at Manolada, a village of two thousand inhabitants in the regional district of Elis, in the western part of the Peloponnese peninsula. In that area there are a number of production units, of various sizes, specialising in the intensive cultivation of strawberries. Exports account for 70% of the local production, which covers 90% of the Greek market. Most of the workers are irregular migrants from Pakistan and Bangladesh. Some are employed on the farms permanently and others only on a seasonal basis.","6.The production unit in question was run by T.A. and N.V., the applicants\u2019 employers.","The applicants were among a total of 150 workers divided into three teams, each one headed by a Bangladeshi national who reported to T.A.","7.The workers had been promised a wage of 22 euros (EUR) for seven hours\u2019 work and three euros for each hour of overtime, with three euros per day deducted for food. They worked in greenhouses every day from 7 a.m. to 7 p.m. picking strawberries under the supervision of armed guards employed by T.A. They lived in makeshift shacks made of cardboard, nylon and bamboo, without toilets or running water. According to them, their employers had warned them that they would only receive their wages if they continued to work for them.","8.On three occasions \u2013 in late February 2013, mid-March 2013 and on 15 April 2013 \u2013 the workers went on strike demanding payment of their unpaid wages, but without success.","On 17 April 2013 the employers recruited other Bangladeshi migrants to work in the fields. Fearing that they would not be paid, between one hundred and one hundred and fifty workers from the 2012-2013 season who worked in the fields started moving towards the two employers, who were on the spot, in order to demand their wages. One of the armed guards then opened fire against the workers, seriously injuring thirty of them, including twenty-one of the applicants (listed under numbers 4, 6, 7, 8, 9, 14, 15, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 33, 38, 39 and 42). The wounded were taken to hospital and were subsequently questioned by police.","9.On 18 and 19 April 2013 the police arrested N.V. and T.A., together with the guard who had fired the shots and another armed overseer. During the preliminary investigation by the local police, a number of other Bangladeshis, including some who had worked with the suspects, were used as interpreters.","10.On 19 April 2013 the Amaliada public prosecutor charged the four suspects with attempted murder and other offences, and also, in response to a request from the prosecutor at the Court of Cassation, with human trafficking under Article 323A of the Criminal Code. The charge of attempted murder was subsequently reclassified as grievous bodily harm.","11.On 22 April 2013 the Amaliada public prosecutor acknowledged that thirty-five workers \u2013 including four team-leaders \u2013, who had all been injured during the incident, were victims of human trafficking, thus making them lawful residents under section 12 of Law no.3064\/2002 (on the repression of human trafficking, crimes against sexual freedom, child pornography, and more generally sexual exploitation).","12.On 8 May 2013 one hundred and twenty other workers, including the twenty-one applicants who had not been injured (listed under numbers 1, 2, 3, 5, 10, 11, 12, 13, 16, 17, 18, 27, 30, 31, 32, 34, 35, 36, 37, 40 and 41), applied to the Amaliada public prosecutor for charges of human trafficking, attempted murder and assault, in respect of them also, to be brought against the four defendants. They stated that they had been employed on the farm run by T.A. and N.V. in conditions of human trafficking and forced labour and that they were part of the group which had come under fire. Relying on the Additional Protocol to the United Nations Convention against Transnational Organised Crime, known as the \u201cPalermo Protocol\u201d, of December2000 (\u201cto Prevent, Suppress and Punish Trafficking in Persons\u201d), they asked the public prosecutor to bring charges under Article323A of the Criminal Code against their employers, accusing them of exploiting them in a work-related context. They further alleged that, on 17 April 2013, they had also been present at the scene of the incident and that they had gone there to demand their unpaid wages, with the result that they were also victims of the offences committed against the other thirty-five complainants.","13.The police questioned each of the above-mentioned twenty-one applicants, who signed a record containing their statements, which had been given under oath and were accompanied by their photos, and they forwarded the statements to the public prosecutor.","14.In decision26\/2014 of 4 August 2014, the Amaliada public prosecutor rejected the application of the one hundred and twenty workers. He emphasised that those workers had been sought in order to give testimony during the preliminary investigation and that only one hundred and two of them had been traced and interviewed (including the twenty-one applicants mentioned in paragraph 12 above). He noted that it transpired from their statements and other material in the file that their allegations did not correspond to the reality. He explained that if they had really been the victims of the offences complained of, they would have gone to the police immediately on 17 April 2013, like the thirty-five other workers had done, and would not have waited until 8May 2013. In his view, the claim that the complainants had been afraid and had left their huts was not credible because they had been close to the scene of the incident and, when the police arrived, they could have returned to make their complaints known. He further noted that only four out of the hundred and two complainants interviewed had stated they had been injured and that, unlike the thirty-five workers mentioned above, none of those four workers had gone to hospital. Lastly, he observed that all the complainants had stated that they had made statements to the police after learning that they would receive residence permits as victims of human trafficking.","15.On 28 January 2015 the public prosecutor at Patras Court of Appeal dismissed the appeals of the one hundred and twenty workers against decision no.26\/2014 on the grounds that the material in the case file did not substantiate their allegations and that they had sought to present themselves as victims of human trafficking in order to obtain residence permits (decision no. 3\/2015).","16.The accused were committed to stand trial in Patras Assize Court. Only N.V. was charged with committing the offence of human trafficking. The three other defendants, namely T.A. and the two armed overseers, were charged with aiding and abetting that offence. The hearings began on 6 June 2014 and ended on 30 July 2014. The thirty-five workers mentioned above joined the proceedings as civil parties and were represented by their lawyers V. Kerasiotis and M. Karabe\u00efdis, whose fees were paid by the Greek Council for Refugees and the Hellenic League for Human Rights.","17.In his oral submissions the public prosecutor pointed out that the applicants who had been injured in the incident had been living and working in Greece without any permit, at the mercy of networks which exploited human beings and in conditions which enabled them to be characterised as victims of human trafficking. In his view both the material element and the mental element of this offence were made out in the present case.","18.The public prosecutor further emphasised that exploitation in a labour context was part of the notion of exploitation provided for in European and other international law instruments as a means of committing the offence of human trafficking. He indicated that Article 4 of the Convention and Article22 of the Greek Constitution prohibited forced or compulsory labour. He explained that the notion of exploitation through work included all acts which constituted a breach of employment law, such as the provisions concerning working hours, working conditions and workers\u2019 insurance. In his view, that form of exploitation also obtained through the performance of work for the benefit of the offender himself.","19.Referring to the facts of the case, the public prosecutor explained that the employer, N.V., had not paid the workers for six months, that he had only paid them a very small sum for food, deducted from their wages, and had promised to pay the rest later. He observed as follows: that the defendants were unscrupulous and imposed themselves by making threats and carrying weapons; the workers laboured in extreme physical conditions, had to work long hours and were constantly humiliated; on 17 April 2013, N.V. had informed the workers that he would not pay them and would kill them, with the help of his co-accused, if they did not carry on working for him; as the workers had not given in to the threats, he had told them to leave and said that he would take on another team in their place and that he would burn down their huts if they refused to leave. He lastly noted that, when he recruited them, N.V. had promised the complainants makeshift shelters and a daily wage of EUR 22 \u2013 which in his view was the only solution for the victims to be sure of a means of subsistence \u2013 and that N.V. had thus succeeded, at that point, in obtaining their consent in order to be able to exploit them subsequently.","20.The public prosecutor asserted that the incident of 17 April 2013 was illustrative of a situation of over-exploitation and barbaric treatment to which the major landowners in the region had subjected the migrant workers. He took the view that the incident had been a barbaric and armed aggression by Greek employers against the migrants, conjuring up images of a \u201csouthern slave-trade\u201d which had no place in Greece.","21.At the hearing, one of the witnesses, an officer from the police station of Amaliada, stated that one or two days before the incident of 17 April 2013 some workers had gone to the police station to complain that their employers had refused to pay them their wages and that one of his colleagues had subsequently had a telephone conversation with N.V. on this subject.","22.In a judgment of 30 July 2014, the Assize Court acquitted the four defendants on the charge of trafficking in human beings, on the ground that the material element of the offence was not made out in the present case. It convicted one of the armed guards and T.A. of grievous bodily harm and unlawful use of firearms, sentencing them to prison for terms of fourteen years and seven months and eight years and seven months, respectively. As regards the overseer who had been responsible for the shots, it took the view that he had not intended to kill those who were attacked in the incident and that he had been trying to make them move away so that the newly recruited workers would not be approached by them. As to N.V., it acquitted him on the ground that it had not been established that he was one of the workers\u2019 employers (and therefore that he was obliged to pay them their wages) or that he had been involved as an instigator of the armed attack against them. The Assize Court commuted their prison sentences to a financial penalty of 5 euros per day of detention. It also ordered the two convicted men to pay the sum of EUR 1,500 to the thirty-five workers who were recognised as victims (about EUR 43 per person).","23.The Assize Court noted that the workers\u2019 conditions of employment had provided that they would receive: EUR 22 for seven hours of work and EUR 3 for each additional hour; food, of which the cost would be deducted from their wages; and materials for the construction of electrified huts next to their plantations, at their employers\u2019 expense, to satisfy their basic accommodation needs \u2013 while allowing them the option of living elsewhere in the region. It noted that these conditions had been brought to the knowledge of the workers by their fellow countrymen who were team-leaders.","24.The Assize Court thus observed that the workers had been informed of their conditions of employment and that they had accepted them after finding them satisfactory. As to the amount of the wages, it found that this was the usual amount paid by the other producers in the region and the workers had not been obliged to accept it. In the court\u2019s view, the information provided to the workers by their team-leaders and their compatriots working for other employers about the reliable payment of wages constituted a major factor in the choice of T.A. as employer. The Assize Court further noted that, until the end of February 2013, the workers had not made any complaint about their employer, whether concerning his conduct or the payment of wages, and they had only started to complain at the end of February or the beginning of March 2013 about a delay in payment.","25.Moreover, the Assize Court rejected the workers\u2019 allegations that they had not received any wages and had been subjected to a threatening and intimidating attitude, on the part of the defendants, throughout the duration of their work, on the following grounds: those allegations had been expressed for the first time at the hearing, and not at the stage of the preliminary enquiries or investigation; certain intimidating acts had led the complainants to leave their place of work; and the description of these acts was particularly imprecise and vague. The Assize Court also noted that it transpired from the testimony of the workers that, during their free time, they were able to move freely around the region, do their shopping in shops which operated by agreement with the defendants, play cricket and take part in an association set up by their compatriots. It added that it had not been shown that T.A. had, under false pretences and by means of promises, coerced the workers into agreeing to work for him by taking advantage of their situation of vulnerability, especially as it found that they were not in such a situation.","26.The Assize Court took the view that it had also been shown that the relations between the workers and their employers had been governed by a binding employment relationship and its conditions were not intended to trap the workers or to lead to their domination by the employers. On that point, it explained that the conditions had not led the complainants to live in a state of exclusion from the outside world, without any possibility for them to abandon this relationship and look for another job. It further noted that the workers had been in a position to negotiate their conditions of employment at the time of their recruitment and that their unlawful presence in Greece had not been used by their employers as a means of coercion to force them to continue working.","27.The Assize Court indicated that, for the notion of vulnerability to be constituted, the victim had to be in a state of impoverishment such that his refusal to submit to the offender would appear absurd; in other words the victim had to be in a state of absolute weakness preventing him from protecting himself. It added that the victim would be exploited, as a result of his vulnerability, if he unconditionally submitted himself to the offender and was cut off from the outside world, which in the court\u2019s view was not the case here since: (a) the relations between the workers and their employers had been governed by a binding employment relationship, and (b) its conditions were not intended to trap the workers or to lead to their domination by the employers, such that the workers might be cut off from the outside world and find it impossible to withdraw from the employment relationship and find another job. The Assize Court further observed that most of the workers had stated that they would have continued to work for their employers had they been paid their wages.","28.Lastly, as to the workers\u2019 allegation that they had received death threats from the defendants \u2013 an allegation that it did not accept \u2013, the Assize Court took the view that, if that statement had been true the workers would have left their place of work without hesitation. The fact of fearing for their lives would have prevailed over any other consideration (such as: their unpaid wage demands; their need to earn a living, which allegedly could not have been satisfied in view of the objective inability to find another job; and all the other arguments that the workers had put forward to justify the fact that they had continued to work).","29.On 30 July 2014 the convicted defendants appealed against the judgment of the Assize Court. The appeal, which is still pending before that same court, has suspensive effect.","30.On 21 October 2014 the workers\u2019 lawyers lodged an application with the public prosecutor at the Court of Cassation asking him to appeal against the Assize Court judgment. In their application they submitted that the Assize Court had not adequately examined the charge of human trafficking. They took the view that, in order to determine whether that court had properly applied Article 323A of the Criminal Code, it was necessary to examine whether the accused had taken advantage of any vulnerability of the foreign nationals in order to exploit them.","31.On 27 October 2014 the prosecutor refused to lodge an appeal. He gave reasons for his decision, indicating only that the statutory conditions for an appeal on points of law were not met. As a result of this decision, the part of the 30 July 2014 judgment concerning human trafficking became \u201cirrevocable\u201d (\u03b1\u03bc\u03b5\u03c4\u03ac\u03ba\u03bb\u03b7\u03c4\u03b7).","A.The Ombudsman","48.The Ombudsman of Greece drew up a report dated 22 April 2008 following the publication of several articles in the print and electronic media reporting on numerous cases of large-scale exploitation of foreigners in the district of Ilia.","In his report, addressed to several government departments and agencies, and to the public prosecutor\u2019s office, he commented on the situation in Manolada and made recommendations for improvement.","49.The Ombudsman reported that hundreds of economic migrants lived in impoverished conditions in improvised camps in the region. He said that, in addition to being subjected to poor working conditions, the migrants appeared to be deprived of their liberty because, according to press reports, their employers \u2013 owners of strawberry greenhouses referred to as the \u201cgreenhouses of shame\u201d \u2013 had imposed supervision of their activities, even during their free time.","50.Referring to the same press reports, the Ombudsman also stated that: the migrants were poorly paid, were working in unacceptable conditions and were obliged to pay their wages \u2013 which were said to be very low \u2013 to their employers to be able to purchase commodities and services from them (rent for a \u2018hovel\u2019, rudimentary provision of water and sometimes electricity, purchase of staple foods); the dirty waters from the camps were polluting the Katochi lagoon, a protected natural area in the European Natura 2000 network; poor hygiene was a concern not only for the health of migrants but also for that of the local population; in the camps, employers illegally set up shops in which migrants were obliged to buy basic goods to cater for their immediate needs; at the end of the work period, some employers denounced irregular migrants to the police in order to avoid paying them their wages.","51.The Ombudsman stated that the labour relations were characterised by an uncontrolled exploitation of migrants, which was reminiscent of the early years of the Industrial Revolution, and that they were governed by the physical and economic domination of the employers. He noted that groups of vulnerable people were affected and noted that the State was completely inactive.","52.The Ombudsman called upon the various national authorities to carry out inspections and he advocated the adoption by them of a whole series of measures which he considered appropriate.","53.In a letter of 26 May 2008, the Minister for Employment informed the Ombudsman that eleven inspections had been carried out. They had revealed eight cases where the wages paid did not correspond to those provided for in collective agreements, and two cases of child labour. He added that one company had had its licence temporarily suspended for having committed several offences and for ignoring the instructions of the labour inspectors.","B.Facts reported by the Re-integration Centre for Migrant Workers with the support of the European Commission","54.A report on Greece, prepared as part of a project entitled \u201cCombating trafficking in human beings \u2013 going beyond\u201d (2011) by the Re-integration Centre for Migrant Workers with the support of the European Commission, reported the reaction of the authorities following the revelation of the situation experienced by migrants working in the strawberry fields of Manolada. The report refers to a large number of press articles published in 2008. It contains the following information.","55.The situation of migrant workers in Manolada was brought to the attention of the public in the spring of 2008 in a long article entitled \u201cRed gold: a sweet taste with bitter roots\u201d, published in the Epsilon supplement of the Sunday edition of the newspaper Elefterotypia. The article, describing in detail the working conditions of the migrant workers in Manolada and denouncing the practice of human trafficking, provoked a debate in the Greek Parliament. As a result of this publication, the Minister for Employment asked the Labour Inspectorate to carry out inspections. In addition, the Health Minister ordered health checks and the Minister of the Interior stated that he was preparing a decision that would oblige employers to provide decent accommodation for seasonal workers.","56.The Minister for Employment also found that inspections had taken place in 2006 and 2007 and had led to unsuccessful prosecutions. As regards the fresh inspections ordered by this Minister, they had not had any consequences: most of the strawberry producers had managed to hide the migrant workers, and only a few of them had been prosecuted for employing irregular migrants (one or two producers) or minors (two producers).","57.According to the press reports on which the report was based, in April 2008 1,500 workers refused to work and gathered in the village square to demand payment of their wages and a pay rise to EUR 30 per day. On the second day of the \u201cstrike\u201d action, trade unionists from the Communist Party supported the migrants, and the producers\u2019 armed overseers attacked and struck the trade unionists, who they considered responsible for the attitude of the migrants, and also journalists. The latter, discouraged from continuing to write articles on the subject, even allegedly received death threats. That evening, the armed guards destroyed the migrants\u2019 huts and fired shots into the air to intimidate them. The police did not make any arrests. The migrants took refuge on the coast and spent the night there."],"31":["6.The applicant was born in 1980 and lives in Kresnice.","7.The applicant and his family lived in a house in Litija which was sold in the impugned enforcement proceedings, described below.","A.Outline of enforcement actions taken against the applicant in the course of the enforcement proceedings","8.During the proceedings described below the applicant was the subject of enforcement claims brought by three different creditors, namely a public water-supply company JP Vodovod-kanalizacija J. (hereinafter \u201ccompany J.\u201d), private company Porsche Kredit in Leasing SLO (hereinafter \u201ccompany P.\u201d), and an individual, A.A. Each creditor was seeking to enforce its own claim against the applicant. Although company P. had initially requested that the enforcement be carried out by seizing the applicant\u2019s house, its claim was subsequently paid from the applicant\u2019s bank account. Having been unsuccessful in securing the payment of its claim by the sale of movable property, company J. subsequently requested that enforcement action be taken against the applicant\u2019s house. The house was ultimately sold at public auction for the purposes of enforcing company J.\u2019s claim. A.A. joined the proceedings with his claim after the house had been awarded to the successful bidder at the aforementioned public auction. As the applicant repaid the debt to company J. after the auction, the proceeds from the sale of the house were used to cover his debt to A.A. Taxes and the outstanding mortgage on the house were also paid from the proceeds.","B.Enforcement proceedings","9.Company J. is based in Ljubljana and is the largest public water-supply company in Slovenia. On 18 December 2007 it sent the applicant a water bill in the amount of 124 euros (EUR), which was due to be paid on 5January 2008.","10.As the applicant had not settled the aforementioned water bill of 18December 2007, company J. instituted enforcement proceedings against him on 28 May 2009. It sought enforcement of the principal amount of EUR124 plus default interest.","11.On 2 June 2009 the Ljubljana Local Court issued an enforcement decision \u2013 a writ of execution \u2013 against the applicant, ordering the seizure of his movable property as requested by company J. The decision contained a notice that an objection could be lodged by the debtor within a time-limit of eight days. The decision was served on the applicant on 24 June 2009. Since the applicant did not object to it, it became final on 3 July 2009. The case was subsequently transferred to the Litija Local Court for further consideration.","12.On 7 January 2010 an enforcement officer went to the applicant\u2019s house with a view to seizing movable property. A report drawn up by the enforcement officer stated that nobody was at the property. The enforcement officer left a note, which included information concerning the attempted enforcement of the principal debt, interest and costs totalling EUR 376. He also wrote to the applicant inviting him to pay the debt voluntarily.","13.On 2 March 2010 company P. instituted enforcement proceedings seeking payment ofEUR 1,576 together with interest accrued as from 10July 2009 until payment. It proposed several means of enforcement, including the sale of the applicant\u2019s house.The Ljubljana Local Court granted the request and the decision was served on the applicant on 9 March 2010. Since the applicant did not lodge an objection, the decision became final on 18 March 2010 and was transferred to the Litija Local Court for further consideration.","14.On 21 April 2010, as part of the proceedings instituted by company P., the Litija Local Court ordered a valuation of the applicant\u2019s house.The order was served on the applicant through his father. Subsequently, on 2June 2010, a property valuer submitted a report in which he set the market value of the house at EUR 140,000. He also stated that the applicant had assured him on the phone that the debt had already been repaid, but had then failed to submit confirmation of such repayment. The report was sent to the applicant for comment. As neither the applicant nor any other adult member of his household was found at the address, a note was left on 8 June 2010 directing the applicant to collect the report at the post office. However, he failed to do so, and on 24 June 2010 the report was left in his mailbox (see paragraphs 52 and 53 below). The applicant did not react to the report.","15.In the meantime, on 29 April 2010, the enforcement officer inspected the interior of the applicant\u2019s house in the presence of the applicant\u2019s wife and concluded that it contained no objects which could be seized and sold to cover the debt concerned in the proceedings instituted by company J. The officer again left a note inviting the applicant to pay the debt, now amounting to EUR 516, voluntarily. In his report, he proposed that the creditor choose some other means of enforcement, because enforcement directed against movable property would not suffice for the payment of the enforcement costs, let alone the debt. It was also established that the applicant\u2019s car was leased and therefore could not be seized for enforcement purposes.","16.On 15 June 2010 company J. applied to the Litija Local Court for an attachment order in respect of the applicant\u2019s immovable property, namely his house.","17.On 17 June 2010 the Litija Local Court granted company J.\u2019s application and issued a decision allowing enforcement to be carried out by means of the sale of the applicant\u2019s house. The decision was served on the applicant via his wife on 21 June 2010. The applicant did not lodge an objection. Subsequently, the court joined company J.\u2019s application to the proceedings instituted by company P.","18.On 1 July 2010, the Litija Local Court set the amount to be paid to the property valuer. This was then paid from the deposit made by company P. On the same day the court also issued a decision setting the market price of the applicant\u2019s house at EUR 140,000. After an unsuccessful attempt to serve both decisions on the applicant, they were left in the applicant\u2019s mailbox (see paragraphs 52 and 53 below). The applicant did not appeal against the decisions.","19.On 31 August 2010 the Litija Local Court discontinued the enforcement proceedings pursued by company P. because the debt had been paid by means of the seizure of assets from the applicant\u2019s bank account.","20.On 1 September 2010 the Litija Local Court ordered that a public auction of the applicant\u2019s house be held on 7 October 2010. Following an unsuccessful attempt on 3 September 2010 to serve the order and the summons on the applicant, they were left in his mailbox (see paragraphs 52 and 53 below) on 20 September 2010.","21.On 2 September 2010 the Litija Local Court discontinued the enforcement action in respect of the applicant\u2019s movable property because company J. had not lodged a new application within three months of the failed attempt (see paragraph 15 above). The decision was served on the applicant on 6 September 2010.","22.On 7 October 2010 a first public auction of the applicant\u2019s house was held. However, there were no interested buyers. The applicant did not appear.","23.On 8 October 2010 the Litija Local Court ordered a second public auction to be held on 18 November 2010. Following an unsuccessful attempt to serve the order and the summons on the applicant on 14 October 2010, a note was left directing the applicant to collect them at the local post office. As he failed to do so, they were left in his mailbox (see paragraphs 52 and 53 below) on 2 November 2010.","24.In the meantime, on 18 and 25 October 2010, company J. applied to the Litija Local Court for an extension of the enforcement order to other means of enforcement, namely the attachment of the applicant\u2019s bank account and his salary respectively.","25.At the second public auction held on 18 November 2010 the house was sold to M.L. for EUR 70,000, namely 50% of its estimated market value. The applicant did not appear.","26.On 19 November 2010 the Litija Local Court issued a written decision awarding the property to the bidder, M.L. (sklep o domiku). The award decision, together with a copy of the minutes ofthe second auction, was served on the applicant via his wife on 23 November 2010.","27.On 22 November 2010 the Litija Local Court granted company J.\u2019s application and attached to the enforcement order the applicant\u2019s salary and bank account. The decision was served on the applicant on 24November 2010. The decision mentioned that enforcement had previously been ordered against movable property, but contained no mention of the judicial sale of the house. It was noted that up to two thirds of the salary the applicant was receiving from his employer K. could be seized, provided that the applicant was left with the statutory minimum guaranteed income. The decision also contained a notice to the bank, which stated, among other things, that if no assets were currently available, the bank should proceed with the seizure once assets became available; if no assets became available within a year of the decision being served on the bank, the latter should inform the court to that effect.","28.On 22 November 2010 another creditor, A.A., applied to the court for enforcement of a court judgment granting him compensation together with costs and interest, totalling EUR 5,112, with accrued interest. He requested that the enforcement be carried out by attachment of the applicant\u2019s house.","29.On 24 November 2010 the applicant lodged an appeal against the award decision in which he informed the court that he had repaid the debt (see paragraph 26 above). He argued, inter alia,that he had been unable to go to the auction and that he had only learned from the impugned decision that the auction had been held. He further submitted that in the meantime he had repaid his debt. He had been having financial difficulties throughout that year since his father had died and his mother had lost her job. In this connection he submitted that he had needed to support her in addition to his wife, who had also been unemployed, and his two children. He stressed that in the event that the award decision were not revoked, his family would risk becoming homeless.Moreover, his employer, company K., had received the same day the enforcement order directed against his salary.","30.Following the applicant\u2019s repayment of the debt on 24 November 2010, company J. on the same day applied to the court for discontinuation of the enforcement proceedings.","31.On 25 November 2010 the Litija Local Court discontinued the enforcement proceedings instituted by company J.","32.On 2 December 2010 the Ljubljana Local Court granted the application for attachment of the applicant\u2019s house in the enforcement proceedings instituted by A.A. (see paragraph 28 above).","33.The applicant lodged an objection to the above decision (see paragraph 32 above), stating that the enforcement proceedings instituted by company J. had already been discontinued and that he wished to have A.A.\u2019s claim enforced by the seizure of his monetary assets and repaid in twelve monthly instalments. On 19 January 2011 the Litija Local Court dismissed the applicant\u2019s objection and refused to adjourn the enforcement proceedings in respect of the attachment of the applicant\u2019s house. It also refused to allow the enforcement by means of seizure of the applicant\u2019s monetary assets as proposed by the applicant because it had not been shown that such means would lead to the settlement of the debt within a year (see paragraph 49 below). That decision was served on the applicant on 21January 2011. The applicant did not appeal against it.","34.On 29 December 2010 the Ljubljana Higher Court dismissed an appeal lodged by the applicant against the award decision issued in favour of M.L. (see paragraphs 26 and 29 above), which thus became final. The court held that the applicant had been properly summoned to attend the public auction, which he had not disputed in his appeal, and that he had not given a reason why he had been unable to go to the auction. The court dismissed his allegations that he had been unable to repay the debt. It explained that the enforcement decision concerning the debt of EUR 124 had become final in July 2009, whereas he was relying on circumstances which had taken place in 2010. Moreover, the debt was of minor value. Thecourt further pointed out that the applicant had been properly served with all the court documents in the proceedings but had not reacted to them, which had been entirely his choice. It also found that there was no reason to suggest that the applicant\u2019s family would end up on the street, although their standard of living might worsen as a result of the sale of their house. Lastly, the court referred to Constitutional Court decisions nos. Up-35\/98 and Up-77\/04 (see paragraph 55 below), stressing that the subsequent repayment of the debt could not lead to the revocation of an award decision that had already been pronounced, regardless of the amount of money to be paid.","35.On 12 January 2011, following the full payment of the sale price by M.L., the Litija Local Court transferred the property sold at public auction to him and ordered that his name be entered as the owner in the Land Register. It further ordered the applicant to vacate the house within thirty days of receipt of the decision.","36.On 21 January 2011 the applicant, now represented by a law firm, lodged an appeal against the decision concerning the transfer of title and applied for revocation of the finality of the award decision. He argued, inter alia, that following the discontinuation of the enforcement proceedings on 25 November 2010, the court should have, in accordance with section 76 of the Enforcement and Securing of Civil Claims Act (hereinafter \u201cthe Enforcement Act\u201d, see paragraph 48 below), annulled any enforcement actions already taken; hence it should also have revoked the award decision. He stressed that at the relevant time the buyer had not yet acquired ownership of the property and therefore the revocation of the award decision would not have affected rights already acquired by the buyer. The applicant maintained that the summons for the auction had not been served on him.","37.On 25 May 2011 the Ljubljana Higher Court dismissed the applicant\u2019s appeal. It held that under section 192 of the Enforcement Act (see paragraph 50 below) there were only two conditions to be fulfilled in order to allow the transfer of property to a buyer \u2013 a final award decision and the payment of the purchase price. Therefore, the law had been correctly applied. The court also rejected the allegation that the summons had not been served on the applicant, referring to the findings in the decision of 29December 2010 (see paragraph 34 above). It also rejected the applicant\u2019s assertion that the discontinuation of the enforcement proceedings should have resulted in the annulment of orders to carry out enforcement, including revocation of the award decision. The court further stated that the Constitutional Court, in its decisions nos. Up-35\/98 and Up-77\/04, had already expressed an opinion that the revocation of the award decision would have interfered with the rights of others (see paragraph 55 below).","38.On 17 June 2011 the Litija Local Court held a hearing on the distribution of the proceeds of the house sale and decided to distribute them as follows: the amounts of EUR 146 and EUR 5,895 would go to the applicant\u2019s creditor, A.A., who had joined his claims to the enforcement proceedings after the house had already been sold; EUR1,372 to the Tax Office for taxes due for the sale of the house; and EUR 58,888 to a bank on account of the outstanding mortgage on the house. The remainder of the proceeds from the sale in the amount of EUR3,699 was transferred to the applicant. The decision was served on the applicant on 18 August 2011.","39.At the request of M.L., on 11 July 2011 the Litija Local Court issued a writ of execution against the applicant, ordering the eviction of the applicant\u2019s family from the house. The applicant lodged an objection and a further appeal, which were both dismissed. He referred to his constitutional appeal (see the following paragraph) and essentially argued that the sale should be revoked in view of the fact that he had repaid the debt before the award decision had become final. In his submission, the transfer of the title to M.L. could not therefore be taken as a valid basis for his eviction.","40.In the meantime, on 28 July 2011 the applicant lodged a constitutional appeal against the decisions of 12 January and 25 May 2011 (see paragraphs 35 and 37 above). He argued that the decisions were unlawful and arbitrary and that the sale of his house resulting from a debt of EUR 124 amounted to a disproportionate interference with his property rights. In particular, he argued that the court had been under no obligation to attach immovable property to the enforcement order. He also submitted that an award decision could not become final if the enforcement proceedings had been discontinued, a point he had explicitly raised in his appeal (see paragraph 36 above).","41.On 5 March 2012 the Constitutional Court dismissed the applicant\u2019s constitutional appeal by referring to section 55b(2) of the Constitutional Court Act (see paragraph 54 below).","42.On 16 March 2012 the applicant and his family were evicted from their house with the assistance of the police. They first moved in with their relatives and later acquired a new home."],"32":["5.The applicant was born in 1937 and lives in Sumgayit.","6.The applicant\u2019s son, Mahir Mustafayev (M.M.), was born in 1967 and at the time of the events was serving a life sentence in Gobustan Prison.","A.Death of the applicant\u2019s son","7.The applicant\u2019s son, who suffered from epilepsy, was held with one other inmate (S.R.) in cell no. 94, designated for two inmates.","8.Since June 2006 M.M. had sent numerous complaints to various domestic authorities, including the Ministry of Justice, the Prosecutor General\u2019s Office and the Ombudsman of the Republic of Azerbaijan. He complained, in particular, of his conditions of detention, of violations of inmates\u2019 rights in Gobustan Prison and of ill-treatment by prison guards because of his complaints to various domestic authorities, alleging that his life was in danger.","9.On 2 December 2006 S.R. left cell no. 94 for a long-term visit to his mother and M.M. remained the sole occupant of the cell.","10.Early in the morning of 3 December 2006 a fire broke out in the cell. According to the applicant, the fire began at approximately 6 a.m. and prison guards did not immediately intervene to extinguish it despite warnings from other inmates. It took an hour for them to open the cell door after the outbreak of the fire.","11.According to the Government, the fire broke out at approximately 6.50 a.m. The prison guards took immediate action and opened the cell door at around 7 a.m. They took the applicant\u2019s son out of the cell and gave him first aid. M.M. was sent to hospital by car at 11.45 a.m., arrived at 2.45 p.m. and died at 3.30 p.m.","12.The applicant was informed by telegram at 3.21 p.m. on 6December 2006 of the death of his son.","13.It appears from M.M.\u2019s death certificate, dated 13 March 2007, that the cause of death was first and second degree burns over the whole body and smoke inhalation (b\u00fct\u00fcn b\u0259d\u0259nin texniki yan\u0131\u011f\u0131, I-II d\u0259r\u0259c\u0259li yan\u0131q, intoksikasiya).","B.The criminal inquiry","14.On 4 December 2006 the Garadagh District Prosecutor\u2019s Office launched a criminal inquiry into M.M.\u2019s death.","15.On 7 December 2006 the investigator in charge of the case refused to institute criminal proceedings. The investigator found that M.M. had suffered from epilepsy and that the fire had begun after his cigarette had fallen onto the bed during a seizure. The investigator relied on a statement written by M.M. after the incident, which stated that the fire had broken out because he had had an epileptic seizure while smoking. The investigator found that the prison guards had acted immediately in order to extinguish the fire. The investigator also referred to a statement from S.R. that he had seen M.M. after the incident, at approximately 10 a.m. on 3 December 2006, and that M.M. had told him that he had had a seizure and that he had not known how the incident had happened. The investigator\u2019s decision also referred to post-mortem forensic report no. 147 dated 5 December 2006, which confirmed the existence of extensive burns on M.M.\u2019s body. The forensic report also established that the time of the injuries corresponded to 3 December 2006 and that they were the kind of injuries which caused serious harm and could be life-threatening.","16.Despite the Court\u2019s explicit request to the Government to submit copies of all the documents relating to the criminal investigation concerning M.M.\u2019s death, the Government failed to provide the Court with a copy of M.M. and S.R.\u2019s written statements of 3 December 2006 and forensic report no. 147 of 5 December 2006, submitting that the case file had been destroyed.","17.The applicant was provided with a copy of the investigator\u2019s decision of 7 December 2006 only one month later. He immediately lodged a complaint against that decision with a superior prosecutor.","18.On 16 February 2007 the Baku City Prosecutor overturned the investigator\u2019s decision and remitted the case to the Garadagh District Prosecutor\u2019s Office for a new examination. The prosecutor held that the investigator had not duly examined the scene of the incident. He also asked the investigator, inter alia, to order forensic fire, chemical and handwriting examinations, to check if M.M.\u2019s cell had been equipped with an adequate fire detection system, to question other inmates, prison guards, and the medical staff who had given first aid to M.M. and to establish why M.M. had not been taken to hospital immediately after the incident. The prosecutor also asked the investigator to order a new forensic examination in order to establish, inter alia, whether M.M. had been able to speak and move freely immediately after the incident given the nature of his injuries.","19.On 26 April 2007 the investigator again refused to institute criminal proceedings, concluding that there had been no crime involved in M.M.\u2019s death. He relied mainly on the statements submitted by the prison guards, who said the fire had broken out at approximately 7 a.m. because of M.M.\u2019s epileptic seizure and that they had intervened immediately after the incident. The investigator also noted that handwriting report no. 2692 dated 6April 2007 had indicated that the statement written on 3 December 2006 had been signed by M.M. However, he also noted in the decision that forensic expert report no. 32 dated 25 April 2007 had stated that M.M. had not been able to move, speak or write immediately after the incident as he had been in a state of shock as a result of his burns. The decision also recorded that chemical analysis report no. 2375 of 19 March 2007 had concluded that there had been no trace of oil products in samples taken from the cell walls or of carbonised particles. The investigator also pointed out that it was not possible to carry out a forensic fire examination because the scene of the incident had not been preserved and repairs had been carried out in the cell in question. As regards the statements by some inmates that the fire had broken out at approximately 6 a.m., that it had taken an hour for the prison guards to open the door of the cell and that M.M. had died as a result of their negligence, the investigator noted that the cells of the inmates in question were situated far from M.M.\u2019s cell and that therefore their statements could not be considered as reliable. The investigator also questioned Gobustan Prison\u2019s paramedic (feld\u015fer) (N.B.) who had given first aid to M.M. after the fire. N.B. stated that he had been informed by telephone at home about the incident at around 7 a.m. on 3 December 2006. He had taken a taxi to the prison and had arrived fifteen minutes later. He had given first aid to M.M. but his condition had worsened at around 8 a.m. and he had requested his transfer to a hospital. N.B. stated that he had accompanied M.M. in the car that had transported him to the hospital but they had not arrived until 2.45 p.m. because they had waited for an hour and fifteen minutes for the car to be repaired after it had broken down. In that connection, the investigator referred to letter no. 17\/1\/15-954 of 27February 2007 from the Prisons Service of the Ministry of Justice, confirming that the car transporting M.M. to the hospital had arrived at 2.45p.m. and that the delay in his transfer had been due to the fact that the car had broken down on its way to the hospital. The letter also contained information about M.M.\u2019s medical history, pointing out that he had previously been admitted five times to that medical establishment, had been diagnosed four times with epilepsy and had received the appropriate treatment.","20.Despite the Court\u2019s explicit request to the Government to submit copies of all the documents relating to the criminal investigation concerning M.M.\u2019s death, the Government failed to provide the Court with a copy of chemical analysis report no. 2375 dated 19 March 2007, handwriting report no. 2692 dated 6 April 2007, forensic expert report no. 32 dated 25April 2007, letter no. 17\/1\/15-954 of 27 February 2007 from the Prisons Service of the Ministry of Justice and the statements made by the prison guards, medical staff and inmates detained in Gobustan Prison, submitting that the case file had been destroyed.","21.The applicant lodged a complaint against the investigator\u2019s decision with the Garadagh District Court, complaining that he had failed to carry out an effective investigation.","22.On 4 July 2007 the Garadagh District Court dismissed the applicant\u2019s complaint.","23.On an unspecified date the applicant lodged an appeal against that decision. He complained, in particular, of the inconsistency between the conclusions of the handwriting report dated 6 April 2007 and the forensic expert opinion dated 25 April 2007. He also argued that the investigator and the first-instance court had failed to examine photographs of M.M. taken immediately after the incident on 3 December 2006. He submitted that the photographs showed that M.M.\u2019s body had signs of ill-treatment.","24.On 27 July 2007 the Baku Court of Appeal granted the appeal and remitted the case to the prosecuting authorities for fresh examination. The appellate court held that the prosecuting authorities had failed to examine the photographs of M.M. for signs of ill-treatment on his body or to establish why the scene of the incident had not been preserved.","25.On 15 October 2007 a prosecutor at the Garadagh District Prosecutor\u2019s Office again refused to institute criminal proceedings on the grounds of a lack of a criminal element in the death. In particular, the prosecutor held that there was no evidence that M.M. had been ill-treated, as alleged by the applicant. He relied in that connection on the conclusions of forensic report no. 147, which had only confirmed the existence of numerous burns on M.M.\u2019s body.","26.On an unspecified date the applicant appealed against that decision.","27.On 6 December 2007 the Garadagh District Court overruled the prosecutor\u2019s decision and remitted the case to the prosecuting authorities for a new examination. The court pointed out the inconsistencies as to when the fire had begun. It further held that the investigation had failed to clarify why M.M. had been taken to hospital almost eight hours after the fire had broken out. The court held that the fact that the car transporting M.M. had broken down could not explain such a long delay. The court also found that the investigation had failed to examine whether M.M.\u2019s conditions of detention had been appropriate for a person suffering from epilepsy.","28.On 7 January 2008 the investigator in charge of the case again refused to institute criminal proceedings. The wording of the decision was identical to that of 26 April 2007, except the last few paragraphs, which concerned the conditions of detention of inmates suffering from epilepsy. In that connection, relying on statements made by the head of the prison regime department of Gobustan Prison and N.B., the investigator found that domestic law did not provide for any special conditions of detention for inmates suffering from epilepsy or any restriction on the authorised items they could possess in prison.","29.On 14 March 2008 the Garadagh District Court overruled the investigator\u2019s decision of 7 January 2008 and remitted the case to the prosecuting authorities. The court held that the investigator had failed to examine the reason for the delay in M.M.\u2019s transfer to hospital. It also pointed out the inconsistencies in the inmates\u2019 statements concerning the circumstances of the incident. The court further found that it had not been established whether M.M.\u2019s conditions of detention had been compatible with his illness and that an inquiry should have been carried out as regards the necessary security and medical measures for a person like M.M., whose condition was likely to give rise to sudden seizures.","30.On 7 May 2008 a prosecutor at the Garadagh District Prosecutor\u2019s Office again refused to institute criminal proceedings, using wording that was almost identical to the decisions of 26April 2007 and 7 January 2008. The prosecutor found that it had been M.M.\u2019s fault that the fire had broken out and that he had died as a result of his burns. He further held that the prison guards had taken immediate action and there had been no negligence on their part. The prosecutor noted that there was no special rule for the detention of inmates suffering from epilepsy. He also confirmed that there had been a delay in taking M.M. to hospital because the car had broken down. He further found that it had not been possible to carry out a forensic fire examination as the scene of the incident had not been preserved. Lastly, the prosecutor referred to a statement made by a forensic expert, A.M., that there had been no causal link between M.M.\u2019s death and his delayed transfer to hospital.","31.Despite the Court\u2019s explicit request to the Government to submit copies of all the documents relating to the criminal investigation concerning M.M.\u2019s death, the Government failed to provide the Court with a copy of A.M.\u2019s statement, submitting that the case file had been destroyed.","32.The applicant was provided with a copy of that decision only on 26December 2008, following intervention by the Ombudsman.","33.On an unspecified date the applicant lodged a complaint against the prosecutor\u2019s decision of 7 May 2008, arguing that the prosecuting authorities had failed to investigate the questions raised by the previous court decisions. In particular, there had been no plausible explanation for M.M. not being taken immediately to hospital after the incident. He also disputed the official version, according to which M.M. had been able to write a statement immediately after the incident and that he had caused the fire himself.","34.On 12 February 2009 the Garadagh District Court dismissed the applicant\u2019s complaint. The judge held that all the facts of the case had been examined by the prosecuting authorities and that M.M. had died as a result of an accidental fire.","35.On 6 March 2009 the applicant appealed against that decision, arguing that there had not been an effective investigation into his son\u2019s death in prison. He argued that the wording of the prosecutor\u2019s decision of 7May 2008 had been almost identical to the prosecuting authorities\u2019 previous decisions and that it had not dealt with any of the questions raised by the previous court decisions.","36.On 22 May 2009 the Baku Court of Appeal dismissed the applicant\u2019s appeal, finding that there was no reason to overrule the first-instance court\u2019s decision of 12 February 2009.","39.The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (\u201cthe CPT\u201d) has carried out several visits to Azerbaijan in which it had the opportunity to examine the situation in Gobustan Prison. In particular, the main purpose of the CPT\u2019s visit of May 2005 (ad hoc) was to examine the situation in Gobustan Prison. However, the CPT\u2019s report on the latter visit has not been made public. The last report of the CPT concerning Azerbaijan which has been made public is about its visit in December 2008. The relevant part of the Report reads as follows:","\u201c5. Health care","a. Gobustan Prison","30. Health-care staffing levels remained generally satisfactory as regards doctors (a Head doctor, a specialist in internal diseases, a specialist in pulmonary diseases and a dentist). Further, a psychologist and a laboratory assistant had recently been recruited.","However, the CPT regrets the fact that the Azerbaijani authorities have failed to implement its recommendations to employ nurses and ensure that someone qualified to provide first aid (preferably with a recognised nursing qualification) is always present in the prison. As a consequence, no health-care staff were present in the establishment at night and at weekends.","Further, the delegation was concerned to note that one of the prisoners (with training as a surgeon) continued to work for the health-care service and was involved in the performance of health-care tasks during the night, despite the specific recommendation made by the Committee after the visit in 2006.","31.In the light of the above, the CPT calls upon the Azerbaijani authorities to take steps at Gobustan Prison to:","- substantially increase the number of nursing staff;","- ensure that someone qualified to provide first aid, preferably with a recognized nursing qualification, is always present on the premises of the establishment, including at night and weekends;","- put an end to the practice of involving prisoners in the performance of healthcare tasks ...\u201d","40.In November 2009 the UN Committee Against Torture considered the third periodic report of Azerbaijan and adopted, inter alia, the following conclusions (CAT\/C\/AZE\/CO\/3):","\u201c5. Insufficient basic legal safeguards","11.... The Committee further regrets the lack of information provided with regard to the mechanism or legal provision through which detainees may request a medical examination by an independent doctor, and remains concerned at allegations that access to medical care is frequently denied, in practice, as was reportedly the case for detainee Mahir Mutafayev who suffered second- and third-degree burns and was not granted access to medical attention until 11 to 12 hours after the incident ...\u201d"],"33":["1. The applicant, Ms I.D., is a Norwegian national, who was born in 1989 and lives in F. The President granted the applicant \u2019 s request for her identity not to be disclosed to the public (Rule 47 \u00a7 4). She was represented before the Court by Ms R. Arnesen, a lawyer practising in Bergen.","A. The circumstances of the case","1. Background","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","3. The applicant is the mother of X, a girl born in August 2011. The child was born out of wedlock and the parents do not live together. Prior to giving birth to X, the applicant moved to L, in the county of Nord-Tr\u00f8ndelag, where her mother lived.","4. On 13 September 2011, the family clinic ( \u201cfamilieklinikken \u201d) at the hospital in L notified the child welfare authorities that the mother needed help beyond what could be offered by the health services. On 19 September 2011, the child welfare authorities received a notification from the psychiatric clinic at the same hospital, being worried about the applicant \u2019 s mental health and urging the authorities to give priority to the matter. On 29 September 2011, the public health nurse contacted the child welfare authorities, expressing concerns as to the applicant \u2019 s mental functioning and her ability to understand X \u2019 s signals and needs. The public health nurse also asked the authorities to give priority to the matter.","5. Upon these notifications, the child welfare authorities were in contact with the applicant, they held consultations with her, and observed the interplay between her and X. During this period, the applicant and X were also treated in hospital; first the applicant at the psychiatric clinic and subsequently both of them at the child clinic (\u201c barneklinikken \u201d), because X had lost weight. They were discharged on 23 December 2011. On 4 January 2012, the child welfare authorities offered the applicant a place with X at a family centre. She declined the offer.","6. In January 2012, X had again lost weight, and she and the applicant were referred to hospital. The applicant was for the second time offered a place at a family centre, but declined the offer. When X was to be discharged from the hospital, on 13 January 2012, the child welfare authorities made an emergency decision to take the daughter into public care. On 16 January 2012, the applicant accepted the offer to stay at the family centre, where she stayed with X from 26 January 2012 until 26 April 2012. After the stay, the authorities offered further assistance, but the applicant declined. The applicant was called in for a meeting with the authorities, but did not appear. In a letter of 24 May 2012 from the applicant \u2019 s lawyer, it was stated that she did not want assistance measures from the authorities.","2. The proceedings concerning the child welfare authorities \u2019 request that X be placed in public care","( a) The County Social Welfare Board","7. On 5 July 2012, the child welfare authorities in L petitioned the County Social Welfare Board ( fylkesnemnda for barnevern og sosiale saker ) in Tr\u00f8ndelag for an order to place X in public care.","8. In August 2012, the applicant and her mother moved together to R, in the county of Oppland.","9. On 25 January 2013, the Tr\u00f8ndelag County Social Welfare Board decided to place X in public care and granted the applicant the right to visit her four times a year, each time for three hours. It noted that X was a vulnerable child, who had experienced disorder (\u201c uro \u201d) and change of carers. The Board held that the first months of a child \u2019 s life are paramount for the connection that is to be established between the child and the care provider. Insufficient connection may put the child \u2019 s further development at risk, and this includes risks of developing psychiatric problems.","10. Weight issues no longer posed a problem. The concerns related to X \u2019 s functioning with the applicant. X had developed positively during the stay at the family centre, but negatively in the period that followed the discharge.","11. Even if X was a vulnerable child, she was not considered to be a child with care needs which were out of the ordinary. However, the applicant was so immature and insecure as an adult, and so passive as a carer, that X \u2019 s fundamental needs of personal contact and security were not met. If the current situation were to continue, it would be detrimental to X \u2019 s further development.","12. According to staff at the family centre, whilst clearly loving X, the applicant showed little understanding of the child \u2019 s spectre of feelings and had major difficulties in reflection on and understanding of X \u2019 s different signals. In sum, the applicant \u2019 s own functioning was characterised as vulnerable. The Board considered that she had suffered from considerable mental health problems, but had declined recommended treatment of the underlying causes. The applicant had no education or work and a limited support network. She had had considerable problems relating to appointments and had appeared rigid and immature to the Board. Throughout all of X \u2019 s life, she had shown that she had difficulties with taking advice. Although the applicant had periodically shown willingness to accept advice, she had lacked the capacity to follow it.","13. The County Social Welfare Board found that further assistance measures would be insufficient to remedy the deficiencies in X \u2019 s care. The applicant had received comprehensive assistance measures over a period of time. The family centre had represented the most extensive assistance offer at the child welfare authorities \u2019 disposal, and the applicant had been unable to follow even very specific advice. She did not appear to be particularly motivated for future co-operation with the authorities, and was considered as a young and immature mother. Whilst the Board recognised that her abilities to provide care might develop, it considered that achieving this would be a demanding and long-lasting process.","14. In conclusion, the County Social Welfare Board found that it would be in X \u2019 s best interest to be placed in public care. She needed carers who could offer a secure, predictable and stable daily life, and who were clear and consistent. It was decisive for X to be given carers who could offer social, linguistic, motor and cognitive stimulation, which would require that they could see and give priority to her needs. The applicant was not able to do so.","15. After the decision, the applicant and X lived in hiding from the child welfare authorities.","( b) The District Court","16. The applicant brought the Tr\u00f8ndelag County Social Welfare Board \u2019 s decision before the District Court ( tingrett ), which appointed a psychologist as an expert. This expert was, however, released from his appointment when it became clear that he was unable to establish contact with the applicant, as she was living in hiding.","17. At the oral hearing before the District Court, on 26 June 2013, the applicant was present. On the second day of the hearing, the court decided to postpone the proceedings as an agreement was reached that a new psychologist should be appointed as expert and further assess the care situation. The District Court also, on 28 June 2013, suspended the implementation of the County Social Welfare Board \u2019 s decision.","18. In August 2013, the applicant moved to F, in Sogn and Fjordane county, where she had two brothers.","19. The new expert delivered his written opinion to the District Court on 3 October 2013.","20. From the expert opinion, the child welfare authorities learnt of X \u2019 s whereabouts, and, on 4 October 2013, took an emergency decision to place her in foster care. The County Social Welfare Board approved the decision on 7 October 2013 and X was placed at a location without the applicant being made aware of her whereabouts.","21. The proceedings before the District Court were resumed on 15 October 2013.","22. In its judgment of 25 October 2013, the District Court, composed of one professional judge, one psychologist as expert judge and one lay person, in accordance with section 36-4 of the Dispute Act (see paragraph 5 3 below), upheld the decision of the County Social Welfare Board.","23. The District Court stated that X appeared to have developed adequately, but still found it likely that she was vulnerable due to her experiences with moving and a mother with limited parenting abilities. There were shortcomings in the applicant \u2019 s capacity to provide care. Although she had no clear medical diagnosis, she had personal problems and her ability to reflect was weak (\u201c svak refleksjonsevne \u201d). Professional assistance would be required if the applicant were to develop into a person with good care skills, who would also be able to handle challenging situations. The applicant had shown little understanding of her need for such assistance. In conclusion, the District Court found that there were serious deficiencies in the applicant \u2019 s parenting skills as far as the personal contact and security required for X were concerned.","24. As to assistance measures, the court-appointed expert had concluded that these would not remedy the challenges the applicant faced in her care of X. During the court proceedings, the applicant had declared that she did not need assistance, but that she would not oppose it. Although the District Court considered that the applicant would be able to develop, it concluded that she did not at that time have the necessary capacity for introspection and understanding of her need of help (\u201c selvinnsikt og erkjennelse \u201d). Against that background, it concluded that further assistance measures would not be in X \u2019 s best interests.","25. The applicant did not appeal against the District Court \u2019 s judgment.","3. The proceedings concerning the applicant \u2019 s request for X \u2019 s return","( a) The County Social Welfare Board","26. In 2015, the applicant requested that X be returned to her. The case was heard by the County Social Welfare Board on 21 and 22 April 2015. The applicant met with her counsel and gave testimony. Nine witnesses were heard.","27. On 4 May 2015, the County Social Welfare Board rejected the request for X \u2019 s return, but increased the contact rights to five times per year, each time for three hours.","28. With respect to X \u2019 s needs, the Board noted that when the initial decision to place X in public care had been adopted, the Board had found that X was a vulnerable small child that had experienced disorder and changes of carers in her short life, but that she did not have special care needs. The District Court had at that time similarly found that X did not have special care needs, even though she was vulnerable. However, the Board assessed that subsequent to the care decisions, clear signs that X had been marked of living in serious neglect when cared for by the applicant, had come to light. She went up to strangers and called them \u201cmummy\u201d; had no protests against leaving the applicant; and did not give any signals when she was awake or woke up at night. Moreover, she was rocking (\u201c rugget \u201d) (for instance when the doorbell rang, she would hide under a table and rock), and it was difficult to obtain contact with her when it occurred. The foster mother had additionally described how X had been liable to knock herself on the head.","29. In a medical discharge summary from the local Children \u2019 s and Young People \u2019 s Psychiatric Out-Patient Clinic ( Barne- og ungdomspsykiatrisk poliklinikk, BUP ), dated 4 February 2015, X had been diagnosed with \u201cother reactions to severe stress\u201d. Her kindergarten had additionally described her as roaming ( \u201cflakkende \u201d) and difficult to keep calm during meals and to involve in playing. The kindergarten had given X specific follow-up and offered her special pedagogical help ten hours per week.","30. In the Board \u2019 s view, X had, at the time when she had been placed in public care, beyond doubt shown clear symptoms of abnormal development (\u201c skjevutvikling \u201d) and clear signs of attachment problems (\u201c tilknytningsproblematikk \u201d). One of the psychologists had been of the view that X would probably have developed an attachment disorder (\u201c tilknytningsforstyrrelse \u201d), had she not been placed in public care. After the placement, however, X had developed positively in all areas. Despite the positive development she was still a vulnerable child with special needs for appropriate care. Consequently, her carers would need more than ordinary caring skills.","31. The applicant had also developed positively, she was older and her life had become more orderly. She appeared somewhat more mature, and she had had positive and promising recent experiences with work, albeit only for a very short time.","32. However, this development concerned primarily external structural conditions such as a more stable living situation and adaptation to social life. The applicant \u2019 s functioning still had to be characterised as vulnerable. For a number of years she had had issues with adaptation (\u201c tilpasningsvansker \u201d) and problems with her mental health. She was to a large degree evasive and distrustful and suffered periodically from depression issues. Although the applicant had become less isolated and no longer suffered from anxiety problems, the stability of her mental health was still uncertain.","33. Further, the Board reiterated that when the decision to place X in public care had been adopted, the Board had considered that the problems had primarily been at the level of emotional care. The applicant had major difficulties as to reflection and understanding of X \u2019 s different signals.","34. The appointed psychologist had described that when the applicant had to take care of X on her own, she was incapable both as concerned physical and psychological care and stimulation. As the applicant did not understand that she needed help, it would be difficult to defend the appropriateness of her having the care. In many ways, the applicant was herself in need of help, as she had a relatively weak general functioning and ability to adapt.","35. Moreover, the appointed psychologist had observed the interplay between the applicant and X during two visits and compared his own observations to information given by the child welfare authorities, the municipal health service and the family centre. The information gave a relatively unambiguous picture of the applicant as a person with low stamina and tolerance of frustration, and who showed little reflection about herself as a carer as she had difficulties in seeing the child and its needs.","36. The Board found that the prior evaluations of the applicant \u2019 s caring skills indicated that she had fundamental shortcomings in her care abilities that were likely connected to her personality and her difficult background.","37. Only a short time had passed since the decision of public care had been made, and the Board noted the difficulty inherent in attempting to change shortcomings that were connected to fundamental personality traits. The applicant \u2019 s emotional caring skills did not show signs of improvement and it was difficult to see that she had a greater understanding of the care issues; she continued to be of the opinion that her care had been appropriate when X lived with her. The applicant had still a considerably reduced ability for reflection and mentalisation concerning X \u2019 s needs and signals, and she demonstrated little insight as to the challenges X \u2019 s return would pose. The need for assistance measures would be so comprehensive that the applicant would need a person to assist her most of the day. This went beyond what the child authorities could offer.","38. The County Social Welfare Board additionally concluded that X had become so attached to the foster home that it would be detrimental to her further possibilities of developing if she were to be returned at that time. Although she had developed normally and well, another move would imply a clear risk for her and the danger of new attachment problems.","( b) The District Court","39. The decision of the County Social Welfare Board was brought before the District Court, which appointed a psychologist as expert. The expert delivered her report on 26 August 2015.","40. The District Court, again composed of one law judge, one psychologist and one lay person (see paragraphs 2 2 above and 5 3 below), heard the case from 7 to 9 October 2015. The applicant met with her counsel and gave testimony. The court-appointed expert gave oral testimony. Nine other witnesses were heard.","41. In its judgment of 23 October 2015, the District Court confirmed the Board \u2019 s decision of 4 May 2015. It observed at the outset that the Board, when deciding on the public care in 2013, had found that X did not have care needs out of the ordinary (see paragraph 11 above). However, she had been described as a child who had received marginal care and was therefore vulnerable.","42. The psychologist appointed as court expert (see paragraph 3 9 above) had described X as adequate for her age in spite of the insecurity and vulnerability she had developed when staying with the applicant in the beginning of her life. When she had arrived in the foster home in 2013, she had not asserted her needs and the foster parents had to teach her how to do so. She had been uncritical of strangers, she whimpered to get attention, and hit herself on the head when she was tired. In order to establish attachment to the foster home, it had only been the foster mother who had changed her diapers, fed her, put her to bed and comforted her. When the expert delivered her report in August 2015, X functioned very well in the foster home, and she was able to distinguish between the foster mother and the applicant as different mothers to her. In the kindergarten, special arrangements were made for X as new situations could be difficult for her. Apart from this, she functioned well in the kindergarten. The expert concluded that X was well-functioning in many ways, but that she, based on the difficulties and symptoms of development disorder she had shown, was still a vulnerable child who had special needs for an adapted care.","43. The foster mother \u2019 s testimony before the District Court had supported the description of the facts that had formed the basis of the expert \u2019 s evaluation of X and her needs. Similarly to the Board, the City Court further took account of X \u2019 s treatment at the Young People \u2019 s Psychiatric Out-Patient Clinic, and her diagnosis of \u201cother reactions to severe stress\u201d that had been given there, as well as the descriptions from the kindergarten on how X had developed positively but still needed particular supervision.","44. In conclusion, the District Court found that X appeared normal for her age, but that she was still a vulnerable child with an extra need for security and fixed routines. She was for that reason considered as dependent on carers with more than ordinary good care skills \u2013 adults who would be able to reflect on her reactions and behaviour.","45. It was likely that X \u2019 s symptoms of mal-development and attachment problems, that had been present during the first period after she had been placed in public care, had their major cause in neglect from the applicant during the two first years of X \u2019 s life. The fact that the applicant, after the decision on placement had been made in 2013, \u201cfled\u201d with X \u2013 i.e. relocated to other parts of the country without the authorities \u2019 knowledge \u2013 in order to evade the implementation of the decision, not only supported the assessment that the applicant had been immature and with little understanding of the consequences of her own acts at that time but had also been a considerable strain and source of insecurity for X.","46. The applicant \u2019 s mental health situation had improved during the spring and summer of 2014, and this might indicate that they were partly linked to the placing of X in public care. However, the court found additional reason to point out that the applicant \u2019 s mental health had been troublesome also before that measure had been adopted. First, the court-appointed psychologist had in his report noted that the applicant understood that she had had a childhood and upbringing unfortunate for her personal development. She had herself been followed up by the Children \u2019 s and Young People \u2019 s Psychiatric Out-Patient Clinic for five years. Secondly, it had been the applicant \u2019 s mental health that had triggered the notifications of concern that led to the engagement of the child welfare authorities in 2011.","47. The applicant had undergone a considerably positive development with respect to practical arrangements. She had obtained her own apartment and an employment internship position supported by the social welfare authorities that she followed up well. Her finances were orderly; she had contact with her brothers and friends. She would thus be capable of providing appropriate material care.","48. However, it was doubtful whether the applicant would be able to offer X satisfactory emotional care. Whilst the applicant herself was of the opinion that she had no mental health issues, it had emerged that she had been depressed and had been followed up by the municipal authorities in order to activate. Although she had had a positive personal and social development, she was still vulnerable, and the court-appointed expert had concluded that she did not have the prerequisites and resources necessary to give X the emotional care that would support the child \u2019 s development. In the expert \u2019 s view, it was a positive matter that the applicant managed to follow up on the initiatives by the municipal and social security authorities, and she should be given some more time to establish as an independent adult. Over some time, she should be able to show that she had been stably well-functioning and could take over the care for her child.","49. The District Court agreed with the expert \u2019 s assessment and pointed particularly to the fact that the applicant \u2019 s positive development was thus far mostly connected to factors that impacted on the abilities to give material care. Ultimately, the court did not deem it necessary to decide whether the applicant was capable of offering X care that would meet the conditions for her return. X had developed ties to the foster home that provided a safe environment for her, and there were risks attached to an eventual return to the uncertain conditions in the applicant \u2019 s home. X had shown symptoms of considerable attachment problems when she was placed in the foster home in the autumn of 2013. These problems had had their major cause in the neglect X experienced during her first two years, when living with the applicant. Whilst X had had a significantly positive development during the time in foster care and had become close to adequate in development for her age, she was still vulnerable and needed care beyond what a normal child in her age needed. The good and stable care situation in the foster home had been the primary reason for the positive development. Returning the care of X to the applicant would at that time be capable of implying serious problems for X. It would imply returning to the environment in which X had been when the care was insecure, an environment which had formed the major reason for the attachment problems visible at the time when she had been placed in public care in 2013.","50. Whilst finding that the public care of X should not be discontinued, the District Court increased the contact rights to six times a year, each time for three hours. It observed in that regard that a balance had to be struck between, on the one hand, the child \u2019 s interest in stability and the possibility to develop bonds to the foster home. On the other hand, the contact with her biological parents had to be taken care of. When assessing the extent of the visiting rights, the District Court found that based on the information currently available, the placement had to be considered as long-term. In this connection it recalled that it had concluded that X could not be returned to the mother at that point in time because of her attachment to the foster home. The court considered it likely that this attachment would increase. Moreover, the court had to take account of the fact that X \u2019 s father also had similar rights, four times a year. However, the visits by the applicant had appeared positive. If the totality of the visits by both parents turned out to be troublesome to X, it would be more reasonable to reduce the father \u2019 s visiting rights than those of the applicant.","51. The High Court ( lagmannsrett ) refused leave to appeal on 22 January 2016. The Supreme Court ( H\u00f8yesterett ) rejected an appeal against that refusal on 31 March 2016.","B. Relevant domestic law","52. The relevant sections of the Child Welfare Act of 17 July 1992 ( barnevernloven ) read as follows:","\u201c Section 4-12 Care orders","A care order may be issued","(a) if there are serious deficiencies in the daily care received by the child, or serious deficiencies in terms of the personal contact and security needed by a child of his or her age and development,","(b) if the parents fail to ensure that a child who is ill, disabled or in special need of assistance receives the treatment and training required,","(c) if the child is mistreated or subjected to other serious abuse at home, or","(d) if it is highly probable that the child \u2019 s health or development may be seriously harmed because the parents are unable to take adequate responsibility for the child.","An order may only be made under the first paragraph when necessary due to the child \u2019 s current situation. Hence, such an order may not be made if satisfactory conditions can be created for the child by assistance measures under section 4-4 or by measures under section 4-10 or section 4-11.","An order under the first paragraph shall be made by the county social welfare board under the provisions of Chapter 7.","Section 4-21 Revocation of care orders","The county social welfare board shall revoke a care order when it is highly probable that the parents will be able to provide the child with proper care. The decision shall nonetheless not be revoked if the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her. Before a care order is revoked, the child \u2019 s foster parents shall be entitled to state their opinion.","The parties may not demand that a case concerning revocation of a care order shall be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months. If a demand for revocation of the previous order or judgment was not upheld with reference to section 4-21, first paragraph, second sentence, new proceedings may only be demanded when documentary evidence is provided to show that significant changes have taken place in the child \u2019 s situation.\u201d","53. The relevant sections of the Dispute Act of 17 June 2005 ( tvisteloven ) read as follows:","\u201c Section 36-1 Scope","(1) The provisions of this Chapter apply to legal actions which pursuant to special statutory provisions may be brought for judicial review of administrative decisions on coercive measures against individuals. Other claims cannot be included in the action.","...","Section 36-4 The composition of the court. Expert panel","(1) The district court shall sit with two lay judges, of whom one shall be an ordinary lay judge and the other shall be an expert. In special cases, the court may sit with two professional judges and three lay judges, of whom one or two shall be experts.","...\u201d"],"34":["5.The first applicant, Franz-Olivier Giesbert, is the publication director of the magazine Le Point. The second applicant, Herv\u00e9 Gattegno, is a journalist with Le Point. The third applicant is the company operating Le Point.","A.Background to the proceedings at issue","6.The proceedings against the applicants which form the subject matter of the three applications are related to the events commonly referred to as the \u201cBettencourt affair\u201d.","7.Mrs Liliane Bettencourt, principal shareholder of the group L\u2019Or\u00e9al, is one of the richest individuals in France. From the late 1990s she made numerous gifts to her friend B., a writer and photographer, totalling several hundred million euros in value.","8.In December 2007 Mrs Bettencourt\u2019s daughter, MsBettencourt\u2011Meyers, filed a criminal complaint against B., for the offence of undue influence (abus de faiblesse), with the public prosecutor at the Nanterre tribunal de grande instance. A preliminary investigation was opened. In that context numerous interviews were conducted, in particular with individuals close to Mrs Bettencourt, and searches were carried out. In September 2008 B. was taken into police custody.","9.Without waiting for the outcome of the investigation, Ms Bettencourt-Meyers brought a private prosecution against B. in the Nanterre Criminal Court, on the same charge of undue influence. She sought and obtained the inclusion in the case file of material and reports from the preliminary investigation.","10.In September 2009 the public prosecutor\u2019s office decided to discontinue the proceedings based on Ms Bettencourt-Meyers\u2019 original complaint.","11.The case initiated by the private prosecution was first set down for hearing on 3 September 2009, then on 11December 2009. On that date it was decided to seek a medical assessment of Mrs Bettencourt and the hearing was deferred again to 15 April 2010 (for the subsequent criminal proceedings, see paragraphs 52 and 53 below).","12.Mrs Bettencourt publicly announced that she was refusing to undergo the assessment ordered by the court. She also filed submissions by way of voluntary intervention, including in the alternative an application to join the proceedings as a civil party in the event that the prosecution was regarded as valid by the court. She argued that the aim of her civil-party application was to persuade the court that her mental faculties were not diminished and that she had made her gifts to B. with all due lucidity.","13.The developments in the case were widely reported in the press. The offending articles in Le Point were thus published in that context.","B.The offending articles","1.The article of 10 December 2009","14.On 10 December 2009 the third applicant published, with the second applicant\u2019s byline, a four-page spread under the heading \u201cInvestigation into a very dear friend\u201d and with the sub-heading: \u201cTreasure. Did he take advantage of LilianeBettencourt? [B.] denies it but the finger of suspicion points to him\u201d.","15.The article referred to various aspects of the case and in particular the very significant gifts made by \u201cthe heir of L\u2019Or\u00e9al\u201d, for a total of one billion euros, to B. The journalist wrote, quoting the testimony of Liliane Bettencourt\u2019s former accountant: \u201cShe too describes the psychological domination imposed on an elderly lady who is more fragile than she may like\u201d. He also inserted a passage from the \u201cprosecution document\u201d which summed up the situation as follows:","\u201cTaking advantage of his influence and Liliane Bettencourt\u2019s weakness, [B.] persuaded her, at a time when her health was declining, to give him sums of money and assets going beyond tokens of friendship.\u201d","16.The article was full of comments between inverted commas, presented as extracts from statements made to the investigators working under the public prosecutor. It pointed out that the latter had discontinued the investigation in question. Among the quotations were explanations given by B. when he was in police custody in September 2008, and it was claimed by the journalist that those explanations were often contradicted by the facts:","\u201cHe swears that Liliane Bettencourt has acted towards him \u2018like a patron\u2019. Their first meeting goes back to the 70s but their friendship dates from a portrait he made of her in 1987 ... \u2018I was then sufficiently well off that I did not need financial assistance from Mrs Bettencourt\u2019, he retorted to the investigators. \u2018I already owned five apartments on rue Servandoni [Paris 6th], a large collection of paintings and had co-ownership of the Brouzet estate [a large estate in the Gard], together with copyright dues and a commission on the sale by Dior of the perfume Poison\u2019. After verification, this inventory seems to be somewhat overstated: in actual fact it was through a series of cheques from the billionaire and the cancellation of astronomical debts to real estate companies owned by him that B. has managed to build up his assets to the point of acquiring seven apartments in the well-to-do neighbourhood of Saint Sulpice. Today the whole complex forms a quaint townhouse with swimming pool, CCTV cameras and secret passages between the bookshelves.","Contradicted by the numbers and dates, the photographer was forced to explain, more humbly, that Mrs Bettencourt wanted him \u2018to expand\u2019 in order to \u2018install all his works and perhaps set up a museum\u2019. But curiously his benefactor did not even mention such a project during her own hearing on 13 May 2008. B\u2019s explanation: \u2018She is a modest woman; she will not say the things that are in the depth of her heart\u2019.","The police investigation also demonstrates the lavishness of his property in the Gard ... \u2018Mrs Bettencourt did not contribute to its financing\u2019 he claimed. However, the billionaire\u2019s accountant testified that \u2018numerous cheques\u2019 had been signed by her, made out to contractors doing work on the estate, \u2018for at least 150,000 euros, and as much as a cheque of 10 million euros in December 2006\u2019.","Several employees testified that around the same time the old lady\u2019s health had deteriorated ... Herein lies the gravamen of the whole case: was the L\u2019Or\u00e9al heiress really aware of the extent of her generosity? ...","B. declared that he had \u2018never seen the slightest impairment of her behaviour\u2019. He even went as far as attributing to the octogenarian, on record, \u2018a remarkable intellectual agility\u2019 ... Moreover, he willingly gave the police officer the names of other beneficiaries who had received lavish gifts \u2013 but \u2018perhaps not for the same reasons\u2019, he nevertheless conceded. ...","The rest of his defence is even more audacious: if he is to be believed, Liliane Bettencourt enriched him against his will, insisting that he accept gifts which he tried to refuse. \u2018I only knew about these gifts when signing for them at the notary\u2019s office\u2019, he claimed in relation to the paintings she has given him. When asked by the police whether the notary had expressed any reservation he replied \u2018no, on the contrary, the notary told me that the money came from Mrs Bettencourt\u2019s income and that she was responsible enough to be in control of what she was doing\u2019.","Here again, the reality is rather less clear. The notary in question was originally introduced to Liliane Bettencourt to deal with the photographer\u2019s real estate acquisitions. Then he replaced the family notary and all documents relating to life insurance were transferred to his practice. \u2018I no longer recall whether I knew him before he worked for Mrs Bettencourt\u2019, said B. in an embarrassed semi-confession \u2013several employees say he was behind her choice. ...","His protests that he was disinterested are also at odds with a number of findings ... especially this answer Liliane Bettencourt gave herself to the police: asked if her prot\u00e9g\u00e9 had ever refused her generosity, she replied \u2018no\u2019. When the investigators confronted him with this answer, the photographer was forced to concede: \u2018I have never refused gifts that have already been recorded in notarial acts\u2019. That\u2019s a bit different ...","In addition to these oddities, there are two damning statements in the file. ...\u201d","17.Those two statements are extracts from the testimony of the \u201cformer director of L\u2019Or\u00e9al once responsible for the management of LilianeBettencourt\u2019s assets\u201d and her former accountant. The first spoke of a \u201chold\u201d over Mrs Bettencourt. He had asked to be relieved of his duties because, he testified, \u201cI ran the risk of being complicit in the misdeeds of Mr [B] by my tacit consent\u201d. The second witness referred to \u201cpressure\u201d on the part of the photographer and testified that he was always \u201casking for money\u201d. In late 2006 her attention was drawn to the proposed assignment of a life insurance policy (for an amount in excess of 260 million euros). \u201cI tried to reason with Mrs Bettencourt but she was no longer her old self\u201d, recalled the accountant. \u201cI then bumped into B. in the house and said to him \u2018you\u2019ve seen the state she is in, you know she is very ill\u2019. He replied \u2018never mind, as long as she is not under deputyship she can still sign\u2019\u201d.","18.The article also contained comments made by Mrs Bettencourt on 13May 2008, in a box headed: \u201cExclusive: what Liliane Bettencourt told the police\u201d. The journalist, after quoting extracts from the statement showing that Mrs Bettencourt did not recall the agreements she had signed with B., wrote that \u201cthese memory lapses are clearly at odds with the picture that B. would be painting of her to the same investigators\u201d.","19.In another box the journalist reported on the application for \u201cjudicial protection\u201d filed by Mrs Bettencourt\u2019s daughter and quoted an extract from the \u201creport of neurologist P.A.\u201d, who had been \u201casked by the public prosecutor to examine the billionaire\u2019s medical records\u201d, revealing \u201ca state of vulnerability related to a probable degenerative neurological condition which impaired her individual faculties\u201d.","20.The article stated that from this episode and many others, the financial brigade investigators, in a report of 1 December 2008, had concluded that there was \u201ca series of sufficiently strong presumptions that the offence of undue influence [had] been committed by B.\u201d; and that the photographer, for his part, had denounced an \u201codious attack\u201d on a \u201cworld-famous artist\u201d. It ended thus: \u201cthe court will rule whether the fortune passed to him by Liliane Bettencourt was a windfall or a swindle \u2013 either way, it\u2019s a masterstroke\u201d.","2.The article of 4 February 2010","21.On 4 February 2010 the third applicant published, with the second applicant\u2019s byline, an article indicated on the full front cover of the magazine under the headline \u201cBettencourt affair: how to gain one billion (without any effort)\u201d. The subheadings announcing the article read: \u201cthe unbelievable story of a society photographer who made a fortune by \u2018seducing\u2019 Liliane Bettencourt, the richest woman in France\u201d and \u201cthe accusations of Madam\u2019s employees\u201d. A photo-montage showing Mrs Bettencourt \u201cwith her friend B.\u201d also appeared on the cover.","22.The subject of the article, which extended to eight pages, was indicated as follows: \u201cBettencourt affair. Has the richest woman in France been conned by the photographer [B.]? Some of her former employees have said as much to the police. Le Point reveals their testimony and the secrets of this incredible high-society melodrama\u201d. The article began as follows:","\u201cIs it about money or sentiment? A quarrel over an inheritance or a question of principle? A settling of family scores or the most perfect scam? All of these things put together, perhaps and much more, because the millions slip away by their hundreds in an atmosphere redolent of an Agatha Christie novel and a setting worthy of Scott Fitzgerald ... Even the trial \u2013 the inevitable epilogue \u2013 will resemble a high-society event: on 15 and 16 April, the court of Nanterre will look into the incredible generosity, for almost a decade, of the richest woman in France towards the person she has made her favourite, the photographer [B.].\u201d","23.The article continued as follows:","\u201cSince the billionaire\u2019s daughter has taken her case to the courts, accusing her mother\u2019s prot\u00e9g\u00e9 of the offence of \u2018undue influence\u2019, ripples of disgust have been felt along the majestic avenues of Neuilly and beyond \u2013 the high society of Paris in finance, industry and politics \u2013 concerned that it may one day be regretted that no one had seen anything, or at least said anything.","For the investigation has revealed the existence of lavish gifts, apparently totalling around 1 billion euros. Could such riches pass unnoticed? There\u2019s a disturbing detail: the largest sums were assigned to B. in the spring of 2003 and in the summer of 2006, at a time when Liliane Bettencourt\u2019s health was declining sharply ...","Guru. Much testimony has come to light since then \u2013 Le Point is exclusively publishing several extracts (see the following pages). Housemaids, nurses, secretaries, the chauffeur, accountants, all describe \u2018the hold\u2019 that [B.] had over the L\u2019Oreal heiress (aged 87), his own individual way of soliciting her generosity, the equivocal aspects of his behaviour. Before the court, the succession of these indignant employees will be reminiscent of the spectacle in the von B\u00fclow affair \u2013 the trial of the libertine and cynical American aristocrat who was accused, in the early 80s on Rhode Island, of poisoning his wife so that he could take over her fortune. But even that scenario would not be the worst for [B.]: convicted at first instance, von B\u00fclow was nevertheless acquitted on appeal ...","For the time being, the photographer confronts the suspicions with sardonic contempt. \u2018To make a work of one\u2019s life, that\u2019s what matters\u2019, he proclaimed in Le Monde, describing the charges against him as \u2018pathetic rumours\u2019. His benefactor? \u2018An intelligent woman who knows how to choose men, to take risks\u2019, he told the police, sweeping a little too quickly under the carpet the doubts about her state of health. To be sure, the heiress affirmed a year ago, in Le Journal du dimanche, that she was attached to [B.] and that she had no time for gossip. ...","She has since shut herself away, leaving her lawyers to speak in her place, refusing any medical assessment and cutting short her appearances at receptions or ceremonies. This silence has only served to reinforce the impression of a woman under influence.\u201d","24.In the middle of the article, under the heading \u201cExclusive: the women who accuse\u201d, there were long extracts (over three pages) from statements of employees who worked at Mrs Bettencourt\u2019s house (accountant, secretary, chambermaid, nurse) that had been given during the preliminary investigation. The following statements were highlighted in particular:","\u201cIt was as if [B.] had woven his web around Mrs Bettencourt.\u201d","\u201cHe answered me: \u2018As long as she is not under deputyship she can sign.\u2019\u201d","\u201c[B.] takes advantage of Madame\u2019s weakness to benefit from her generosity.\u201d","25.After referring to remarks by B. and by Mrs Bettencourt in the press, the article added: \u201ca number of statements paint a less idyllic picture: under oath, employees and servants mentioned pressing requests for money going as far as harassment, harsh language, and various schemes bordering on the sordid. ...\u201d","26.Under an intermediate heading \u201cStrategy\u201d the article then mentioned and partially quoted documents that had been discovered by the financial investigators at B.\u2019s home in Paris.","27.The article ended with a small insert indicating that B. had refused to respond to Le Point, preferring to \u201creserve his answers for the judges\u201d.","C.The proceedings brought against the applicants following the publication of the impugned articles","1.The urgent proceedings brought by Mrs Bettencourt (application no.68974\/11)","28.On 11 February 2010, following the publication of 4 February 2010, Mrs Bettencourt brought urgent proceedings against the applicants in the Paris tribunal de grande instance claiming a manifestly unlawful nuisance under Articles 808 and 809 of the Code of Civil Procedure ... She asked the urgent-applications judge to find that the reproduction of procedural documents from the file of the preliminary investigation initiated by the Nanterre public prosecutor breached section 38(1) of the Law of 29 July 1881 on freedom of the press (\u201csection 38\u201d, ...), which prohibited the publication of documents from a criminal case file before they had been read out in open court, and Article 9 of the Civil Code, guaranteeing the right to respect for private life ... She requested that a court-ordered notice be published in Le Point, on pain of a coercive fine, and that the applicants be ordered to pay her, by way of an advance, compensation for her non-pecuniary damage, on account of her portrayal as an individual with diminished intellectual faculties who had been duped.","29.The applicants disputed Mrs Bettencourt\u2019s standing to bring the proceedings, as prosecution in respect of the section 38 offence could only be initiated by the public prosecutor under section 47 of the same law ... On the merits, they claimed that it was contradictory, on the one hand, to require journalists to establish the veracity of the information that they published and, on the other, to penalise them for substantiating their investigation.","30.In a decision of 2 March 2010, the Vice-President of the Paris tribunal de grande instance found that Mrs Bettencourt had standing in so far as she was arguing that the publication of the impugned documents had, on the basis of that provision, caused her personal damage. The judge indicated that while section 47 of the 1881 law reserved the prosecution of the section 38 offence for the public prosecutor, an individual who claimed to have sustained pecuniary or non-pecuniary damage as a result of a publication was entitled to act as a civil party in the proceedings or to bring a case before the urgent-applications judge under Article 809 of the Code of Civil Procedure, in order to seek the requisite protective or remedial measures to put an end to the unlawful nuisance resulting from such publication, or to request a sum by way of an advance. The judge explained: \u201cIt suffices for the publication of the documents prior to their reading in open court to have caused the person actual and direct damage, regardless whether or not the person is a party to the proceedings in which the documents are to be presented\u201d. He ordered the applicants jointly to pay an advance of 3,000 euros (EUR) and the same sum in procedural expenses under Article 700 of the Code of Civil Procedure.","31.As to the application of section 38 of the 1881 Act, the judge took the view that the statements by employees of Mrs Bettencourt (paragraph 24 above) constituted \u201cprocedural documents\u201d which were part of the preliminary investigation and that, even though it had been discontinued, those documents had been joined to the criminal proceedings now pending, after their transmission had been sought and obtained by MsBettencourt\u2011Meyers in support of her own private prosecution. He added that those statements all helped the case for the prosecution, as indicated on the magazine\u2019s cover, \u201cthe accusations of Madame\u2019s employees\u201d, and observed as follows:","\u201c... the publication of long passages emanating from insiders helps to give the reported facts an appearance of authenticity and objectivity (that the article does not seek to nuance but, on the contrary, to reinforce); the reader is thus led to regard those facts as proven, because they are presented through the prism of a journalist\u2019s analysis, which is bound to contain a degree of subjectivity or opinion. For those reasons, the alleged breach of section38 cannot be combined with the breaches under Article 9-1 of the Civil Code (presumption of innocence) or Article 9 of the Civil Code (private life) or section 29 of the Law of 29 July 1881 [defamation proceedings, ...], nor can it result in redress on the basis of those separate legal provisions.\u201d","The judge concluded that the publication was capable of infringing the rights of Mrs Bettencourt as it portrayed her, at a time when the Nanterre Criminal Court had not yet begun to examine the criminal cases, as a woman who was manipulated and weak, a description that she categorically denied.","32.The judge further found that the applicants were not justified in relying on the provisions of Article 10 of the Convention and the necessities of information. In this connection he indicated that section 38 sought mainly to preserve the independence and orderly conduct of the judicial process, in addition to protecting the rights of the persons concerned, particularly by guaranteeing the presumption of innocence. He emphasised the limited and temporary nature of the restriction on freedom of expression, as the legislation did not prevent analysis of, or comments on, procedural material, or the publication of information gleaned from the proceedings themselves, but only prohibited the reproduction of documents which were intended for public disclosure in the context of a judicial process surrounded by safeguards. These safeguards include respect for defence rights and the principle of adversarial proceedings, \u201cwhich could not be ensured by a prior, isolated and partial media report\u201d. The judge went on to explain as follows:","\u201c... the impugned restriction cannot be compared to the case of disclosure of professional secrets or of secrets from the preliminary or judicial investigation, on account of the possession by a journalist of documents covered by secrecy and used in publications imparting information to the general public, in so far as the journalist, who is not bound [by those secrets], is required to possess such documents in order to justify the veracity of the facts reported or the seriousness of his investigation, but also to use them in compliance with the applicable legislation.\u201d","33.All of the claims submitted by Mrs Bettencourt alleging a breach of her privacy were dismissed on the ground that such a breach had not been sufficiently established, having regard to the general public\u2019s right to be informed, and interest in being informed, of current affairs or events in the general interest:","\u201c... the claimant has not relied on any specific breaches of her private life which would go beyond the information that it is permitted to mention in connection with the criminal case before the court of Nanterre, as LePoint did not, in particular, provide details about any health problems she may have.\u201d","34.The applicants appealed. They argued in particular that the procedural documents in question, which had been included in the case file solely on the initiative of the claimant, and not on that of the public prosecutor, could not be regarded as carrying the degree of authority which justified, by derogation to the principle of freedom of expression, the prohibition imposed by section 38. They further emphasised that neither Mrs Bettencourt\u2019s right to a fair hearing, nor any undermining of the authority or impartiality of the courts, was at stake.","35.In a judgment of 19 March 2010, the Paris Court of Appeal upheld the decision of the court below, in the main, and raised the amount of the advance to EUR 10,000, in addition to charging EUR 5,000 for the costs of the appeal proceedings. It confirmed that the witness statements \u201cclearly\u201d constituted \u201cprocedural documents\u201d, even though the preliminary investigation had been discontinued, since they had been transmitted by the public prosecutor at the request of the civil party and thus formed an integral part of the criminal proceedings. In the court\u2019s view, \u201cthe fact that they were transmitted at the request of the civil party and not on the initiative of the public prosecutor bore little relevance in this connection\u201d. It concluded that the publication of long passages from those statements constituted a violation of section 38 and thus an unlawful nuisance within the meaning of Article 809 of the Code of Civil Procedure. It added as follows:","\u201c... the requirement for the journalist to verify his sources and to compare the various material available to him on a given subject in the context of a serious investigation, before imparting information to the public, does not mean reproducing verbatim the documents used for his investigation, where, as in the present case, such publication is prohibited under press legislation of which he cannot be unaware.\u201d","The court concluded that the applicants\u2019 submission that section 38 should be declared incompatible with Article 10 of the Convention was unfounded. It took the view that Mrs Bettencourt was entitled to claim non-pecuniary damage as she had been portrayed as:","\u201ca woman in a weak mental state, being easy to manipulate and under the influence of [B.], which the reader is all the more likely to regard as the truth as [the observations] are presented as emanating from individuals who have played a particular role, making them privileged observers of her private life.\u201d","Lastly, the Court of Appeal confirmed that there had been no breach of MrsBettencourt\u2019s privacy in the following terms:","\u201c... the mere mention of MrsBettencourt\u2019s mental health in the body of the article, without any details falling within her private sphere, and in the testimony reproduced, which was mainly about the conduct and manoeuvres attributed to [B.], does not suffice to establish any particular breach of the respondent\u2019s privacy that would go beyond the limits of legitimate information that the public is entitled to expect about a case which, already being widely covered by the media, is before the courts ....\u201d","36.The applicants appealed on points of law. In their grounds of appeal they argued, under Article 10 of the Convention, that they had a duty to inform the public about a case pending before the courts which had been revived after a private prosecution, following its discontinuance by the public prosecutor, and which had given rise to wide media coverage especially on account of the personality and wealth of Mrs Bettencourt; that the judgment of the Court of Appeal had found against them solely for publishing the statement extracts and not on account of their content; that there had been no impairment of the interests protected by section 38(1) because Mrs Bettencourt was not the defendant in the proceedings; that there was a manifest contradiction in the Court of Appeal\u2019s position, as it had declared Mrs Bettencourt\u2019s action admissible on the basis of the damage sustained, while taking the view that she had not been portrayed as a weak and manipulated woman in terms of her right to respect for her private life.","37.In a judgment of 28 April 2011 the Court of Cassation dismissed the applicants\u2019 appeal and ordered them to pay Mrs Bettencourt the sum of EUR 4,000 in costs. It gave the following reasons for its decision:","\u201c... the judgment observes that long extracts were published from the statements taken during the preliminary investigation ..., in which [Mrs Bettencourt] was portrayed as a manipulated and weak woman; proceeding with a correct application of Article 10 of the Convention ..., the Court of Appeal was able, without contradicting itself, to conclude from that publication, since the documents drawn up by the police during an investigation are procedural documents within the meaning of section 38 of the Law of 29July 1881, that [Mrs Bettencourt] was justified in claiming, solely on the basis of that publication, that she had sustained personal damage ...\u201d","2.Urgent proceedings brought by B. (application no.2395\/12)","38.On 11 February 2010 B. brought urgent proceedings against the applicants in the Paris tribunal de grande instance following the publication of 4 February 2010, arguing that it had caused him a manifestly unlawful nuisance, infringing both his copyright to the photographs illustrating the article and his defence rights, including his right to be presumed innocent.","39.In a decision of 2 March 2010, the Vice-President of the Paris tribunal de grande instance, in addition to endorsing the reasoning already set out in paragraphs 31 and 32 above, took the view that the impugned publication could have the alleged effects, infringing B.\u2019s right to a fair hearing and his right to the presumption of innocence. B.\u2019s claim concerning the infringement allegedly caused by the reproduction of photographs was rejected as falling outside the remit of the urgent proceedings judge. The judge ordered the publication of a notice inside the magazine together with an indication of it on the cover (to take up one half of the page in bold type, under the heading \u201cJudgment against Le Point in proceedings brought by [B.]\u201d) and on the weekly magazine\u2019s website. The applicants were also ordered jointly to pay B. an advance of EUR 3,000 on compensation for his non-pecuniary damage, together with an equivalent sum by way of procedural expenses.","40.The applicants appealed.","41.In a judgment of 19 March 2010 the Paris Court of Appeal upheld the decision appealed against, mainly in the same terms as those set out in paragraph 35 above. It reiterated that the witness statements, \u201cwithout engaging in any extensive interpretation of [section 38]\u201d, could be characterised as procedural documents, even though the investigation had been discontinued: \u201cthe fact that they were transmitted at the request of the private prosecutor and not on the initiative of the public prosecutor is of little relevance in this connection because they support the prosecution case\u201d. It went on to find that \u201cconsequently, the mere publication of substantial extracts from those statements, before they had been referred to or read out in open court, [had] indeed constituted a violation of section38 of the Law of 29 July 1881 and therefore an unlawful nuisance\u201d. The Court of Appeal further found as follows:","\u201c... the four statements thus presented to the public portray [B.] as a devious and unscrupulous individual, using seduction, manoeuvres and psychological pressure to persuade Liliane Bettencourt to grant him substantial and frequent gifts, at a time when she was weak and when her husband\u2019s state of health had declined;","... the reader is all the more likely to consider these statements to be true, supporting as they do the accusation against [B.] before the Nanterre Criminal Court, as they are presented as emanating from individuals who, as a result of the services they rendered to her (nurse, chambermaid, secretary), played a particular role through which they became privileged observers of her private life;","... the reader is thus led to believe in the accusation, even before the court hearing the case has been able to reach its decision, in conditions that breach the respondent\u2019s right to be presumed innocent and his defence rights ...\u201d","42.The applicants lodged an appeal on points of law.","43.In a judgment of 7 July 2011 the Court of Cassation dismissed their appeal in the same terms as those of its judgment of 28 April 2011 (see paragraph37 above).","3.Proceedings on the merits brought by B. (application no.76324\/13)","44.On 9 March 2010, B. brought proceedings against the applicants on the merits before the Paris tribunal de grande instance seeking redress for the damage sustained on account of the publication of the articles of 10December 2009 and 4 February 2010, in breach of section38(1) of the 1881 Act.","45.In a judgment of 21 June 2010, that court dismissed all of B.\u2019s claims. On the admissibility of his suit, it observed that the applicants were correct to assert that an individual who claimed to be the victim of the offence provided for under section 38 of the 1881 Act was not authorised to bring a private prosecution on that basis. It pointed out that, by contrast, the provisions of that Act did not preclude the injured party from bringing proceedings in the civil courts, as only one section of that Act (section 46) prohibited the bringing of civil proceedings separately from a public prosecution, namely in cases of defamation against public authorities, State institutions and civil servants. After observing that section 38 usefully contributed to preserving the orderly functioning and impartiality of the justice system and to guarantee due process, since the full and verbatim publication of documents from a criminal file before the trial could hinder the conduct of pending investigations or influence individuals who might subsequently be called upon to testify, or even lay magistrates who might have to adjudicate upon the case, the court gave the following reasons for its decision:","\u201c... The prohibition that it establishes must not, however, restrict the ability of journalists to report on criminal cases, even those which have not yet been publicly examined by a court, and specifically those which, raising issues of general interest, involving significant interests, or concerning people with high-level responsibilities, especially in political, economic or artistic fields, particularly deserve to be brought to public attention.","The application of this legislation cannot, in particular, have the effect of precluding journalists from imparting to their readers, in such a case, all or part of the documentary resources from which they derived their information, in order to establish its credibility, or which substantiate their commentary and analysis, in order to submit them for open discussion. This is the case here: extracts ... from reports which have been drawn up by the police acting on the instructions of the public prosecutor and which have been appended, after the discontinuance of the proceedings for which they were produced, to the file of further proceedings brought directly by a civil party in a criminal court \u2013 those extracts, therefore, were included by [the second applicant] in two successive articles which were each the result of a journalistic investigation and sought to present readers with information, analysis and comments on a criminal case that would soon be adjudicated upon by a court, that involved considerable financial interests and concerned one of the richest individuals in France and a photographer and writer who has, as he himself boasts, \u2018undeniable success and notoriety\u2019.","In the first of the impugned texts, short quotations from procedural documents, which are reproduced in quotation marks in the body of the article and are therefore fully integrated into the journalist\u2019s writing, mention certain facts and offer an analysis thereof. In the second text, the three pages of extracts from procedural documents are included in a broader editorial presentation, consisting essentially of a four-page spread and a large photograph of the person concerned, from which they are indissociable; the journalist expressly refers to those extracts in his article, analysing them and basing his conclusions on them.","If one were to accept, in those circumstances, that these two bodies of text should be examined by this court only on the basis of the strict-liability offence under section 38 of the Freedom of the Press Act, that would lead, as the respondents rightly argue, to preventing them from initiating the debate that is warranted by the journalist\u2019s work, within which the impugned extracts are merely one element; and they would be deprived, in the present case, of the defences made available by law to persons who are prosecuted for defamation or for a breach of the right to be presumed innocent, in other words precluding them from proving the veracity of the allegations or, at least, the journalist\u2019s good faith, and from submitting argument to the effect that the impugned texts do not contain any final conclusions expressing a biased view that the person in question is definitely guilty.","It should be noted in this connection that the claimant directs his main criticism, in his writ of summons, against the comments and analyses that the journalist has been led to write, under his own name, by the procedural documents cited .... and that he mainly reproduces in that writ only those comments and not the quotations that he is supposed to be challenging. It should be observed in particular that the claimant complains that the statements from which extracts were quoted \u2013 or in reality the journalist\u2019s analysis thereof \u2013 breached his right to be presumed innocent and were presented as \u2018damning\u2019 and \u2018particularly incriminating\u2019.","It can be concluded that B. himself admits that, absent his chosen basis of action, he had other options at his disposal: a private prosecution or civil proceedings for defamation, or a civil action for a breach of his right to be presumed innocent; both of those courses of action would have entailed fair proceedings, ensuring respect for the equality of arms, and he was not therefore deprived of his right to have access to a court in order to secure respect for his rights.","In those circumstances, the upholding in the present case of the claims that he has submitted under 38 would constitute a restriction of freedom of expression devoid of any necessity in a democratic society.\u201d","46.In a judgment of 22 February 2012, the Paris Court of Appeal overturned that judgment. It found that the impugned publications infringed B.\u2019s right to a fair trial with respect for his defence rights, including the right to be presumed innocent, and breached section 38 of the 1881 Act. It ordered the applicants jointly to pay B. the sum of EUR 1 for each publication by way of compensation and EUR 6,000 in expenses under Article 700 of the Code of Civil Procedure. It also ordered the publication, on pain of a coercive fine, of a notice containing the operative provisions of the judgment in Le Point and on the magazine\u2019s website.","47.The Court of Appeal explained that the assessment of the offending publication \u201cclearly\u201d went beyond \u201cthe framework of that of so-called \u2018procedural\u2019 offences\u201d and that it would have to be carried out with regard to Article 10 of the Convention and to the question whether the interference with the applicants\u2019 freedom of expression was necessary to protect the reputation or rights of others and to maintain the authority and impartiality of the judiciary.","48.As regards the article of 10 December 2009, the court noted that it had been published the day before B.\u2019s appearance in the criminal court and that it clearly suggested that he was guilty, as he was portrayed as an individual against whom there was \u201ca series of sufficiently strong presumptions [that he had committed] the offence of undue influence\u201d. It took the view that the court below had wrongly regarded the aim of informing the public as prevailing over the means used, namely illegal methods whereby extracts had been selected from statements collected in an investigation in order to show that B. had committed the offence of undue influence, whereas there had been no judicial decision to that effect. It could be understood by the reader that B. was not telling the truth about MrsBettencourt\u2019s mental health and that his guilt was \u201cdoubly suggested\u201d in the introduction (citing an extract from the prosecution document, which fell under section 38) and in the conclusion. It added as follows:","\u201c... The reasoning given by the court below is tantamount to legitimising the practice, which is legally prohibited, of publishing extracts from an investigation file before they are read out in open court, first, on account of the interest of the subject, and secondly, while noting B.\u2019s claim that his right to be presumed innocent was breached.","The court cannot agree with the reasoning of the court below ...","The article of 10 December 2009, in so far as it portrays [B.] as having committed the offence of undue influence vis-\u00e0-vis Mrs Bettencourt in the above-mentioned context, clearly breaches his right to a fair trial including to the presumption of innocence.","That breach, according to the article, is exclusively based on the publication of extracts from statements which legally speaking are not addressed to journalists when they are not parties to the proceedings.","The court would reiterate that, for a reader who has an average knowledge of the courts, documents from judicial investigations take on particular credibility and an undeniable evidential value.","The court reaches the conclusion that the date of publication, the choices of quotation, and the portrayal of [B.] as guilty according to the documents from the judicial investigation, even though it had been discontinued, had the consequence of influencing his exercise, which was legally and conventionally guaranteed, of his defence rights, which meant that before being heard by a court he should not have been portrayed as guilty of the offence of undue influence against Mrs Bettencourt. [B.] thus finds himself required to give explanations on evidence against him which has not yet been debated in a court of law and which has been taken from an investigation, then still secret, conducted under the supervision of a judge ...","It is not befitting to consider, as did the court below, that [B.] had other courses of action available to him. Being entitled to bring his case to the civil court under section38, it cannot be suggested to the claimant that he should have opted for other types of proceedings on the erroneous ground that his action contravenes Article 10 of the Convention ...\u201d","49.As regards the article of 4 February 2010, the Court of Appeal took the view that the editorial choices \u2013 front cover of the magazine, presentation of whole swathes of statements, highlighting of the exclusive publication of the witness statements \u2013 constituted a communication of some importance directly aimed at B. who had not been able to explain before a court his position \u201con the accusations of the staff\u201d. It added that the publication portrayed B. \u201cas being accused by third parties in conclusive terms\u201d and that the article was \u201ca repeated incrimination of [B.] two months before a hearing at which the \u2018epilogue\u2019 of the case was supposed to take place\u201d.","50.The applicants appealed on points of law. In their grounds of appeal, they argued in particular that the ban on publishing procedural documents was a matter of defence of the general interest falling within the sole jurisdiction of the public prosecutor, and that a private person could not seek redress for damage on that basis. They added that their argument was supported by the fact that B. could have, under Article 9-1 of the Civil Code, used another legal remedy to ensure the protection of his interests and that the interference with freedom of expression and of information had therefore not been justified or proportionate.","51.In a judgment of 29 May 2013 giving the following reasons, the Court of Cassation dismissed the applicants\u2019 appeal:","\u201cHaving found, first, that the article of 10 December 2009 was based on an analysis of extracts from various statements taken by the criminal investigation police, in order to portray [B] as having taken advantage of Mrs Bettencourt\u2019s weakness, the day before his appearance before a criminal court, which was to rule on the relevance and merits of the accusations made against him by her daughter, and, secondly, that the article of 4 February 2010, based on a partial reproduction of statements taken by the criminal investigation police, seeking to portray [B.] as being accused by third parties in conclusive terms in order to lead the reader to believe that the case against him was made out, two months before a hearing which would constitute, according to the article, \u2018the epilogue of the case\u2019, the Court of Appeal ... reached the conclusion that the publication had infringed [B.]\u2019s right to a fair trial with due respect for his right to be presumed innocent and his defence rights; ...\u201d","D.Developments in the Bettencourt affair since the publication of the offending articles","52.After June 2010 there were many developments in the case, with its various political and financial repercussions, and they were widely reported in the media. On 17 November 2010 the Court of Cassation ordered the transfer of all the aspects of the Bettencourt case to the Bordeaux tribunal de grande instance. Mrs Bettencourt\u2019s daughter withdrew her claims but the criminal proceedings were later resumed, and on 14December 2011 B. was placed under judicial investigation for the offence of undue influence.","53.In a judgment of 28 May 2015, B. was found guilty of that offence and sentenced to three years\u2019 imprisonment, of which six months were suspended, a fine of EUR 350,000 and the payment of EUR 158 million in damages awarded to Mrs Bettencourt. In a judgment of 24 August 2016, the Bordeaux Court of Appeal upheld the judgment in respect of the prosecution case and varied the sentence, giving B. a four-year suspended prison sentence, fining him EUR 375,000 and ordering the confiscation of part of his property. The Court of Appeal also took the view that it did not need to make an award of damages on account of settlements that had been agreed between the parties.","...","59.The Court refers to Recommendation Rec(2003)13 of the Council of Europe\u2019s Committee of Ministers to the member States on the provision of information through the media in relation to criminal proceedings, adopted by the Committee of Ministers on 10 July 2003 (see B\u00e9dat v. Switzerland [GC], no. 56925\/08, \u00a7 21, ECHR 2016)."],"35":["6.The first applicant is a sister of Mr B., who died of AIDS in the Botkin Hospital in St Petersburg on 6 May 2008.","7.The second applicant is the mother of MrP., who died of the same disease in the same hospital on 19 June 2009.","8.The applicants live in Moscow.","A.Mr B\u2019s detention and medical treatment","9.On 13 October 2004 Mr B. was arrested on suspicion of robbery. The next day the Frunzenskiy District Court of St Petersburg authorised his detention pending investigation. He was then taken to remand prison no.IZ\u201147\/6 in the Leningrad Region. Twelve days later he was diagnosed with HIV.","10.In November 2004 Mr B. was transferred to remand prison no.IZ\u201147\/1 in St Petersburg. On admission he informed the prison doctor about his HIV status. A relevant entry was made in his medical file, but no treatment was prescribed.","11.On 1December 2005 theFrunzenskiy District Court of St Petersburg convicted Mr B. and sentenced him to seven years\u2019 imprisonment. In August 2006 he was sent to serve the sentence in correctional colony no.IK-5 in the Leningrad Region.","12.Having complained of abdominal pain, on 4 March 2007 Mr B. was admitted to the prison hospital, where he was later diagnosed with tuberculosis of the peripheral lymph nodes. It was decided that he should stay in the hospital for tuberculosis treatment.","13.On 16 March 2007 Mr B. was seen by an infectious diseases doctor, who ordered a CD4 count to be conducted. The test, performed five days later, showed that the level of CD4 cells was 163cells\/mm3, which corresponded to an advanced stage of the disease.","14.On 31 May and 16 June 2007 the infectious diseases doctor visited Mr B. According to the medical records, the latter asked for antiretroviral therapy. In response, the doctor \u201cgave him a talk\u201d. No HIV treatment was prescribed.","15.On 20 June 2007 Mr B. was discharged from the prison hospital. Until April2008 he was transferred from one prison medical facility to another for anti-tuberculosis treatment. Although the treatment was successful, the patient\u2019s overall medical condition continued to deteriorate. Medical specialists interpreted that as a sign of progressing HIV.","16.On 2 April 2008 Mr B. was admitted to prison hospital no. RB-2 in the Republic of Karelia. At that time he was unable to walk, was feverish and extremely emaciated. Eight days later he was transferred to an infectious diseases unit. His doctor alleged that his grave medical condition resulted from a lack of highly active antiretroviral therapy (HAART). Mr B. was prescribed antibacterial and disintoxication therapy.","17.On 22 April 2008 the medical authorities applied for Mr B.\u2019s early release on medical grounds. Three days later the Medvezhyegorsk Town Court of the Republic of Karelia granted the request. On the same day Mr B. was released from detention.","18.On 26 April 2008 Mr B. was admitted to Botkin Hospital in StPetersburg. He did not regain consciousness and died there on 6May2008.","B.Mr P.\u2019s detention and medical treatment","19.On 26 July 2006 Mr P. was convicted of theft and sentenced to a term of imprisonment. He was taken into police custody and two days later sent to remand prison no. IZ-47\/6 in the Leningrad Region.","20.During the admission procedure he told the resident doctor that in 2000 he had been diagnosed with HIV, which by 2006 had progressed to AIDS. Before his arrest he had been receiving antiretroviral therapy. He was also suffering from hepatitis B, C, and D and a skin disease.","21.Having undergone a routine medical examination, on 31 July 2006 MrP. was diagnosed with infiltrative tuberculosis of the right lung. A standard drug regimen was prescribed and administered to him in the prison medical unit. A chest X-ray examination carried out on 20 November 2006 showed a decrease in the area of the lung affected by the tuberculosis.","22.Mr P. was convicted of robbery in another set of criminal proceedings and on 12December 2006 he was sentenced to three years\u2019 imprisonment. He was sent to prison medical facility no. 4 in the Republic of Karelia.","23.Mr P.\u2019s medical condition worsened. The result of a sputum culture test performed on 26 February 2007 was smear-positive. By April 2007 MrP.\u2019s tuberculosis had developed resistance to six of the drugs he had been taking. Following a decision of the prison medical board on 16June 2007, his drug regimen was adjusted.","24.On 26 June 2007 Mr P. was admitted to prison hospital no. RB-2 in the Republic of Karelia, where the tuberculosis treatment continued as prescribed. It appears that the change in medication improved the patient\u2019s lung condition. However, doctors noted a further development of opportunistic infections. A viral load test was performed, the results of which, as alleged by the second applicant, were not given to Mr P.","25.On 13 July 2007 Mr P. returned to the prison medical facility. Chest X-ray examinations carried out on 24 July and 26 September 2007 showed that the condition of Mr P.\u2019s lungs had improved. The results of a smear test proved negative. On 16 October 2008 Mr P. was sent back to a regular prison ward. His treatment continued.","26.On 27 October 2008 at the request of Mr P., the Segezha Town Court of the Republic of Karelia ordered his release on parole. Having been released on 31 October 2008, Mr P. was taken to Botkin Hospital. He died in the hospital on 19 June 2009 from \u201can illness caused by the HIV infection\u201d.","C.Complaints to the authorities","1.Complaints to the prosecutors","27.On 26 May and 4 June 2010 a Russian non-governmental organisation, Agora, complained to the Russian Prosecutor General\u2019s Office of the lack of HIV treatment for detainees, including Mr B. and Mr P. The complaint was referred to the prosecutor\u2019s office in the Republic of Karelia.","28.In a letter to the Russian Prosecutor General\u2019s Office dated 6July 2010 the prosecutor\u2019s office in the Republic of Karelia observed that in 2007 and 2008 prison authorities in Karelia had experienced difficulties with providing medical assistance to HIV-infected convicts in view of the fact that a large number of infected inmates had been sent to the Republic from other regions. The prosecutor\u2019s office said that the supply of drugs had been limited and the number of medical professionals had been insufficient, and acknowledged that the medical care of Mr B. and Mr P. had fallen short of the domestic standards. In particular, they had not received HAART. The prosecutor\u2019s office had sent the evidence it had gathered to the investigative committee in the Republic of Karelia to determine whether a criminal case should be opened.","29.On 5 August 2010 the investigative authorities refused to open a criminal case into the deaths of MrB. and Mr P. Citing the difficulties encountered by the prison authorities of the Karelia Republic in 2006-08, including the large number of HIV-positive inmates, a lack of specialists trained to treat inmates suffering from that infection, the absence of an immunological laboratory and the lack of medication, the investigators concluded that the prison authorities had taken all possible measures to provide medical assistance to HIV-infected inmates. No causal link between the absence of HIV therapy and the deaths of Mr B. and Mr P. was established. The investigative authorities stressed that Mr B. had managed to live in detention without the antiretroviral therapy for almost three years and that Mr P. had died more than seven months after his release. The conduct of the prison and medical authorities, in the investigators\u2019 opinion, did not reveal any signs of a criminal offence.","30.The above decision was not challenged.","2.Tort proceedings","31.In 2011 the applicants lodged a claim for non-pecuniary damages against the Russian Ministry of Finance, arguing that their relatives\u2019 death from HIV had been caused by the authorities\u2019 failure to provide appropriate medical care.","32.On 28 October 2011 the Tverskoy District Court of Moscow examined the claim. It found that the burden of proof was on the applicants, who had to prove the unlawfulness of the prison officials\u2019 conduct, the alleged damage, and the causal links between the officials\u2019 conduct and that damage. Having noted the absence of a decision establishing a breach of the law by the prison authorities, and having referred to the decision not to open a criminal case into the deaths of the applicant\u2019s relatives, the court dismissed the claim as unsubstantiated.","33.On 22 February 2012 the Moscow City Court upheld the judgment on appeal, fully endorsing the District Court\u2019s reasoning."],"36":["6.The applicants were born in 1974, 1984, and 1977 respectively. The first and the third applicants live in Moscow, and the second applicant lives in Gryazy, Lipetsk Region.","7.The applicants are gay rights activists. They were each found guilty of the administrative offence of \u201cpublic activities aimed at the promotion of homosexuality among minors\u201d (\u043f\u0443\u0431\u043b\u0438\u0447\u043d\u044b\u0435 \u0434\u0435\u0439\u0441\u0442\u0432\u0438\u044f, \u043d\u0430\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u043d\u044b\u0435 \u043d\u0430 \u043f\u0440\u043e\u043f\u0430\u0433\u0430\u043d\u0434\u0443 \u0433\u043e\u043c\u043e\u0441\u0435\u043a\u0441\u0443\u0430\u043b\u0438\u0437\u043c\u0430 \u0441\u0440\u0435\u0434\u0438 \u043d\u0435\u0441\u043e\u0432\u0435\u0440\u0448\u0435\u043d\u043d\u043e\u043b\u0435\u0442\u043d\u0438\u0445).","A.The applicants\u2019 administrative offences","8.On 3 April 2006 the Ryazan Regional Duma adopted the Law on Protection of the Morality of Children in the Ryazan Oblast, which prohibited public activities aimed at the promotion of homosexuality among minors.","9.On 4 December 2008 the Ryazan Regional Duma adopted the Law on Administrative Offences, which introduced administrative liability for public activities aimed at the promotion of homosexuality among minors.","10.On 30 March 2009 the first applicant held a static demonstration (\u201cpicket\u201d, \u043f\u0438\u043a\u0435\u0442\u0438\u0440\u043e\u0432\u0430\u043d\u0438\u0435) in front of a secondary school in Ryazan, holding two banners which stated \u201cHomosexuality is normal\u201d and \u201cI am proud of my homosexuality\u201d. He was charged with an administrative offence for doing so.","11.On 6 April 2009 the Justice of the Peace of Circuit no. 18 of the Oktyabrskiy District of Ryazan found the first applicant guilty of a breach of section 3.10 of the Ryazan Law on Administrative Offences. He was ordered to pay a fine of 1,500 Russian roubles (RUB, equivalent to about 34euros (EUR)). On 14 May 2009 the Oktyabrskiy District Court dismissed the first applicant\u2019s appeal.","12.On 30 September 2011 the Arkhangelsk Regional Assembly of Deputies passed amendments to the Law on Separate Measures for the Protection of the Morality and Health of Children in the Arkhangelsk Oblast. The amended law prohibited public activities aimed at the promotion of homosexuality among minors.","13.On 21 November 2011 the Arkhangelsk Regional Assembly of Deputies passed amendments to the Regional Law on Administrative Offences. The amendments introduced administrative liability for public activities aimed at the promotion of homosexuality among minors.","14.On 11 January 2012 the second and the third applicants held a static demonstration in front of the children\u2019s library in Arkhangelsk. The second applicant was holding a banner stating \u201cRussia has the world\u2019s highest rate of teenage suicide. This number includes a large proportion of homosexuals. They take this step because of the lack of information about their nature. Deputies are child-killers. Homosexuality is good!\u201d The third applicant was holding a banner stating \u201cChildren have the right to know. Great people are also sometimes gay; gay people also become great. Homosexuality is natural and normal\u201d; it went on to list the names of famous people who had contributed to Russia\u2019s cultural heritage and were believed to be gay. Both applicants were arrested and escorted to the police station, where administrative offence reports were drawn up.","15.On 3 February 2012 the Justice of the Peace of Circuit no. 6 of the Oktyabrskiy District of Arkhangelsk found the second and the third applicants guilty of a breach of section 2.13 \u00a7 1 of the Arkhangelsk Law on Administrative Offences. The second applicant was ordered to pay a fine of RUB1,800 (about EUR 45), and the third applicant was fined RUB2,000 (about EUR50). On 22 March 2012 the Oktyabrskiy District Court of Arkhangelsk dismissed both applicants\u2019 appeals.","16.On 7 March 2012 the St Petersburg Legislative Assembly passed amendments to the Law on Administrative Offences in St Petersburg. The amendments introduced administrative liability for public activities aimed at the promotion of homosexuality, bisexuality and\/or transgenderism among minors; the same law introduced administrative liability for promotion of paedophilia.","17.On 12 April 2012 the third applicant held a demonstration in front of the StPetersburg City Administration, holding up a banner with a popular quote from a famous Soviet-era actress Faina Ranevskaya: \u201cHomosexuality is not a perversion. Field hockey and ice ballet are.\u201d He was arrested by the police and escorted to the police station, where an administrative offence report was drawn up.","18.On 5 May 2012 the Justice of the Peace of Circuit no. 208 of StPetersburg found the third applicant guilty of a breach of section 7.1 of the Law on Administrative Offences in StPetersburg. He had to pay a fine of RUB 5,000 (about EUR 130). On 6 June 2012 the Smolninskiy District Court of StPetersburg dismissed the applicant\u2019s appeal.","B.Legislative developments and Constitutional Court judgments","19.On an unspecified date the first and the third applicants brought proceedings before the Constitutional Court of the Russian Federation. They challenged the compatibility of section 4 of the Law on Protection of the Morality and Health of Children in the Ryazan Oblast with the provisions of the Constitution, in particular with the principle of equal treatment and the freedom of expression enshrined in Articles 19 and 29 of the Constitution, and also the provisions of Article 55 \u00a7 3, setting out the conditions under which the constitutionally guaranteed rights and freedoms may be restricted.","20.On 19 January 2010 the Constitutional Court declared the complaint inadmissible, for the following reasons:","\u201cSection 14 \u00a7 1 of the Federal Law clearly sets out the responsibility of the State bodies of the Russian Federation to take measures for the protection of children from information, propaganda and activism which is harmful to their health and moral and spiritual development.","...","The laws of the Ryazan Oblast \u201cOn protection of the morality of children in the Ryazan Oblast\u201d and \u201cOn administrative offences\u201d do not strengthen any measures which prohibit homosexuality or provide for its official censure; they do not contain signs of discrimination, and there is no indication in their intent of superfluous actions by the State bodies. It follows that the provisions being challenged by the appellants cannot be regarded as disproportionately restrictive of freedom of speech.\u201d","21.On unspecified date the third applicant brought proceedings before the Constitutional Court of the Russian Federation. He challenged the compatibility of section 7 of the Law on Administrative Offences in StPetersburg with the Constitution.","22.On 24 October 2013 the Constitutional Court declared the complaint inadmissible, for the following reasons:","\u201c... It follows that the given prohibition, determined by the fact that such promotion is capable of harming minors by virtue of the age-specific features of their intellectual and psychological development, cannot be considered as permitting a limitation on the rights and freedoms of citizens exclusively on the basis of sexual orientation.","...","However, this does not rule out a need to define \u2013 on the basis of a balancing exercise with regard to the competing constitutional values \u2013 the limits of the given individuals\u2019 effective practice of their rights and freedoms, in order not to infringe the rights and freedoms of others.","...","Given that it is bound up with the investigation into the factual circumstances of the case, the assessment of whether the appellant\u2019s actions with regard to the targeted and unchecked dissemination of generally accessible information were capable of causing harm to the health and moral and spiritual development of minors, including creating a distorted impression of the social equivalence of traditional and non-traditional marital relations, does not come within the competence of the Constitutional Court of the Russian Federation; nor does verification of the lawfulness and validity of the judicial decisions issued in the appellant\u2019s case.\u201d","23.On 29 June 2013 the Code of Administrative Offences of the Russian Federation was amended, introducing in Article 6.21 administrative liability for the promotion of non-traditional sexual relations among minors.","24.On an unspecified date the third applicant and two other persons brought proceedings before the Constitutional Court of the Russian Federation. They challenged the compatibility of Article 6.21 of the Code of Administrative Offences with the provisions of the Constitution.","25.On 23 September 2014 the Constitutional Court examined the complaint on the merits and dismissed it, for the following reasons:","\u201c... Citizens\u2019 enjoyment of the right to disseminate information concerning the question of an individual\u2019s sexual self-determination ought not to infringe the rights and freedoms of others; in regulating of this right by means of legislation, it is necessary to ensure that a balance is struck between the values protected by the Constitution. Consequently, bearing in mind the sensitive nature of such questions, since they belong to the sphere of individual autonomy, and without encroaching on its very essence, the State is entitled to introduce, on the basis of the above-mentioned requirements of the Constitution of the Russian Federation, specific restrictions on activities linked with the dissemination of such information if it becomes aggressive [and] importuning in nature and is capable of causing harm to the rights and legal interests of others, primarily minors, and is offensive in form.","... In so far as one of the roles of the family is [to provide for] the birth and upbringing of children, an understanding of marriage as the union of a man and a woman underlies the legislative approach to resolving demographic and social issues in the area of family relations in the Russian Federation...","Regulation of freedom of speech and the freedom to disseminate information does not presuppose the creation of conditions which would facilitate the formation of other interpretations of the family as an institution, and the associated social and legal institutions, which would differ from the generally accepted interpretations nor society\u2019s approval of them as being equivalent in value...","These aims also determine the need to protect the child from the influence of information that is capable of causing harm to his or her health or development, particularly information that is combined with an aggressive imposition of specific models of sexual conduct, giving rise to distorted representations of the socially accepted models of family relations corresponding to the moral values that are generally accepted in Russian society, as these are expressed in the Constitution and legislation.","...","In order to ensure the child\u2019s healthy development, States are required, in particular, to protect the child from all forms of sexual exploitation and sexual perversion.","...","The aim pursued by the federal legislature in establishing the given norm was to protect children from the impact of information that could lead them into non-traditional sexual relations, a predilection for which would prevent them from building family relationships as these are traditionally understood in Russia and expressed in the Constitution of the Russian Federation. The Constitutional Court of the Russian Federation acknowledges that the possible impact on the child\u2019s future life of the information in question, even when delivered in a persistent manner, has not been proven beyond doubt. Nonetheless, in assessing the necessity of introducing one or another restriction, the federal legislature is entitled to use criteria that are based on the presumption that there exists a threat to the child\u2019s interests, especially as the restrictions introduced by it concern only the tendency of the information in question to target persons of a given age group, and cannot therefore be regarded as excluding the possibility of exercising one\u2019s constitutional right to freedom of information in this area. ...","The prohibition on public activities in relation to minors is intended to prevent their attention being increasingly focused on issues concerning sexual relations, which are capable, in unfavourable circumstances, of deforming significantly the child\u2019s understanding of such constitutional values as the family, motherhood, fatherhood and childhood, and adversely affecting not only his or her psychological state and development, but also his or her social adaptation. The fact that this ban does not extend to situations concerning the promotion of immoral conduct in the context of traditional sexual relationships, which may also require State regulation, including through [the existence of] administrative offences, is not grounds for finding that the given norm is incompatible with the Constitution of the Russian Federation from the perspective of infringing the principles of equality as applied to the protection of Constitutional values, which ensure the uninterrupted replacement of generations ...","The imposition on minors of a set of social values which differ from those that are generally accepted in Russian society, and which are not shared by and indeed frequently perceived as unacceptable by parents \u2013 who bear primary responsibility for their children\u2019s development and upbringing and are required to provide for their health and their physical, psychological, spiritual and moral development \u2013 ... may result in the child\u2019s social estrangement and prevent his or her development within the family, especially if one considers that equality of rights as set out in the Constitution, which also presupposes equality of rights irrespective of sexual orientation, does not yet guarantee that persons with a different sexual orientation are actually regarded in equal terms by public opinion; this situation may entail objective difficulties when trying to avoid negative attitudes from individual members of society towards those persons on a day-to-day level. This is also true for instances where the very information that is banned from dissemination to minors may be intended, from the disseminator\u2019s perspective, to overcome such negative attitudes towards persons with a different sexual orientation...","The prohibition on the promotion of non-traditional sexual relationships does not in itself exclude the information in question from being presented in a neutral (educational, artistic, historical) context. Such transmission of information, if it is devoid of indications of promotion, that is, if it is not aimed at creating preferences linked to the choice of non-traditional forms of sexual identity and ensures an individualised approach, taking into account the specific features of the psychological and physiological development of children in a given age group and the nature of the specific issue being clarified, may be conducted with the help of experts such as teachers, doctors or psychologists.","... does not signify a negative appraisal by the State of non-traditional sexual relationships as such, and is not intended to belittle the honour and dignity of citizens who are involved in such relationships...","... cannot be regarded as containing official censure for non-traditional sexual relationships, in particular homosexuality, far less their prohibition...","... the person [disseminating information] must understand that what appears to him or her as the straightforward provision of information may, in a specific situation, resemble activism (promotion), if it is shown that the aim was to disseminate (or especially to impose) information with the above-mentioned content. At the same time, only intentional commission by a person of the corresponding public activities, directly targeted at promoting non-traditional sexual relations among minors, or intentional commission of these actions by a person who was fully aware that there could be minors among those receiving the information, is punishable...\u201d","A.The Parliamentary Assembly of the Council of Europe","35.Resolution 1948 (2013) of the Parliamentary Assembly of the Council of Europe (\u201cPACE\u201d), adopted on 27 June 2013 and entitled \u201cTackling discrimination on the grounds of sexual orientation and gender identity\u201d, stated, inter alia, as follows:","\u201c7.The Assembly particularly deplores the unanimous approval by the Russian Duma of the bill on so called propaganda for non-traditional sexual relationships among minors which, if approved also by the Council of the Federation, would be the first piece of legislation on the prohibition of homosexual propaganda to be introduced at national level in Europe.","8.In this context, the Assembly takes note of the Opinion of the European Commission for Democracy through Law (Venice Commission) on the issue of the prohibition of so-called homosexual propaganda in the light of recent legislation in some member States of the Council of Europe; it shares its analysis and endorses its findings, notably that \u201cthe measures in question appear to be incompatible with the underlying values of the [European Convention on Human Rights]\u201d, in addition to their failure to meet the requirements for restrictions prescribed by Articles 10, 11 and 14 of the European Convention on Human Rights.\u201d","B.The European Commission for Democracy through Law (the Venice Commission)","36.In its Opinion \u201cOn the Issue of the Prohibition of so-called \u201cPropaganda of Homosexuality\u201d in the Light of Recent Legislation in Some Member States of the Council of Europe, adopted at its 95th Plenary Session (Venice, 14-15 June 2013), the Venice Commission examined the statutory provisions containing prohibitions of \u201cpropaganda of homosexuality\u201d which had been adopted or proposed to be adopted in the Republic of Moldova, the Russian Federation and Ukraine. The Opinion stated, inter alia, as follows:","\u201c28.... the scope of the terms such as \u201cpropaganda\u201d and \u201cpromotion\u201d which are fundamental to these laws does not only seem to be very wide, but also rather ambiguous and vague, taking into account the application of the provisions in the case-law ... Some of those provisions also use unclear terms such as \u201camong minors\u201d\/ \u201caimed at minors\u201d ...","...","31.Despite the attempts made by the [Russian Supreme Court and Constitutional Court] to give a precise definition to the notion of \u201cpropaganda of homosexuality\u201d, the notion still remains vague as the Constitutional Court and the Supreme Court did not give further indication on what is to be considered as \u201cinformation which is able to cause damage to moral and spiritual development or to the health of minors\u201d or \u201cdictating homosexual lifestyle to minors\u201d in the implementation of the provisions in question.","...","34.It is thus not clear from the case law applying these provisions, whether the terms \u201cprohibition of homosexual propaganda\u201d have to be interpreted restrictively, or whether they cover any information or opinion in favour of homosexuality, any attempt to change the homophobic attitude of a part of the population towards gays and lesbians, any attempt to counterbalance the sometimes deeply rooted prejudices, by disseminating unbiased and factual information on sexual orientation.","35.... Further, according to the United Nations Human Rights Committee, the Ryazan Law is ambiguous as to whether the term \u201c\u2018homosexuality (sexual act between men or lesbianism)\u2019 refers to one\u2019s sexual identity or activity, or both.\u201d","...","37.In the Venice Commission\u2019s opinion, the provisions in question concerning the prohibition of \u201chomosexual propaganda\u201d ... are not formulated with sufficient precision as to satisfy the requirement \u201cprescribed by law\u201d contained in the paragraphs 2 of Articles 10 and 11 of the ECHR respectively and the domestic courts have failed to mitigate this through consistent interpretations.","...","41.At the outset, it should be noted that the prohibition of \u201cpropaganda of homosexuality\u201d is obviously linked to the question of sexual orientation. First, the prohibition in question restricts speech propagating or promoting homosexual\/lesbian sexual orientation. Secondly, it seems that the prohibition would more often, although not necessarily, affect persons of homosexual\/lesbian sexual orientation, who have a personal interest in arguing for toleration of homosexual\/lesbian sexual orientation and its acceptance by majority.","...","48.Therefore, measures which seek to remove from the public domain promotion of other sexual identities except heterosexual, affect the basic tenets of a democratic society, characterized by pluralism, tolerance and broadmindedness, as well as the fair and proper treatment of minorities. Thus, such measures would have to be justified by compelling reasons.","...","50.The first asserted justification of the prohibition of \u201cpropaganda of homosexuality\u201d is the \u201cprotection of morals\u201d...","...","53.The exercise of [the right to freedom of expression] by sexual minorities does not depend on the positive\/negative attitudes of some of the members of the heterosexual majority. As put forward by the Human Rights Committee in its general comment on Article 19 of the ICCPR \u201cthe concept of morals derives from many social, philosophical and religious traditions\u201d, any limitation imposed for the \u201cpurpose of protecting morals must be based on principles not deriving from a single tradition\u201d","...","56.... According to the Venice Commission, the negative attitude of even a large part of the public opinion towards homosexuality as such, can neither justify a restriction on the right to respect for the private life of gays and lesbians, nor on their freedom to come true for their sexual orientation in public, to advocate for positive ideas in relation to homosexuality and to promote tolerance towards homosexuals. In this regard, the Venice Commission recalls that in its Recommendation CM\/Rec(2010)5, the Committee of Ministers of the Council of Europe considered that neither cultural, traditional nor religious values, nor the rules of a \u201cdominant culture\u201d can be invoked to justify hate speech or any other form of discrimination, including on grounds of sexual orientation or gender identity.","...","58.As the provisions under consideration pertain to \u201chomosexual propaganda\u201d or \u201chomosexual promotion\u201d as such, without limiting the prohibition to obscene or pornographic display of homosexuality, or to the demonstration of nudity or sexually explicit or provocative behaviour or material, the provisions cannot be deemed to be justified as necessary in a democratic society to the protection of morals ...","59.The second asserted justification of the prohibition of \u201cpropaganda of homosexuality\u201d is the protection of children. The provisions under consideration claim that the protection of minors against homosexual propaganda is justified, taking into account their lack of maturity, state of dependence and in some cases, mental disability.","60.Again it has to be emphasized that the incriminations in the provisions under consideration are not limited to obscenities, to provocative incitements to intimate relations between persons of the same sex, or to what the Russian Constitutional Court called to \u201cdictating homosexual lifestyle\u201d, but that they also seem to apply to the dissemination of mere information or ideas, advocating a more positive attitude towards homosexuality.","...","63.As to the explanatory memorandums that accompany the Russian Draft Federal Law and the Ukrainian draft law no. 8711 (no. 0945) respectively, the Venice Commission observes that they do not provide any evidence of harm that may result for minors.","64.In the same vein, the UN Human Rights Committee, in the case of Fedotova [cited in paragraph 40 below], duly distinguished \u201cactions aimed at involving minors in any particular sexual activity\u201d from \u201cgiving expression to [one\u2019s] sexual identity\u201d and \u201cseeking understanding for it\u201d. In this case, the Committee observed that the State party failed to demonstrate why it was necessary for the protection of minors, to restrict the author\u2019s right to freedom of expression of her sexual identity even if she intended to engage children in the discussion of issues related to homosexuality.","65.Indeed, it cannot be deemed to be in the interest of minors that they be shielded from relevant and appropriate information on sexuality, including homosexuality.","66.The Venice Commission observes that international human rights practice supports the right to receive age appropriate information concerning sexuality.","67.... In the Venice Commission\u2019s opinion, the dissemination of information and ideas that advocate for positive ideas in relation to homosexuality and that promote tolerance towards homosexuals, does not preclude that traditional family values and the importance of traditional marital relations are propagated and strengthened.","68.... Sweeping restrictions on the freedom of expression that target not only certain specific types of content (e.g. sexually explicit content such as in M\u00fcller v.Switzerland), but apply to all categories of expression, from political discussion and artistic expression to commercial speech, will certainly have serious impact on public debate on important social issues which is central to any democratic society. Thus, the ban cannot be considered \u201cnecessary in a democratic society\u201d for the protection of family in the traditional sense.","...","77.In conclusion, ... the Venice Commission considers that the prohibition of \u201cpropaganda of homosexuality\u201d as opposed to \u201cpropaganda of heterosexuality\u201d or sexuality generally \u2013 among minors, amounts to a discrimination, since the difference in treatment is based on the content of speech about sexual orientation and the authors of the provisions under consideration have not put forward any reasonable and objective criteria to justify the prohibition of \u201chomosexual propaganda\u201d as opposed to \u201cheterosexual propaganda\u201d.","...","80.Secondly, \u201cpublic morality\u201d, the values and traditions including religion of the majority, and \u201cprotection of minors\u201d as justifications for prohibition on \u201chomosexual propaganda\u201d fail to pass the essential necessity and proportionality tests as required by the [Convention]. Again, the prohibitions under consideration are not limited to sexually explicit content or obscenities, but they are blanket restrictions aimed at legitimate expressions of sexual orientation. The Venice Commission reiterates that homosexuality as a variation of sexual orientation, is protected under the [Convention] and as such, cannot be deemed contrary to morals by public authorities, in the sense of Article 10 \u00a7 2 of the [Convention]. On the other hand, there is no evidence that expressions of sexual orientation would adversely affect minors, whose interest is to receive relevant, appropriate and objective information about sexuality, including sexual orientations.","81.Finally, the prohibition concerns solely the \u201cpropaganda of homosexuality\u201d as opposed to \u201cpropaganda of heterosexuality\u201d. Taking also into account the democratic requirement of a fair and proper treatment of minorities, the lack of any reasonable and objective criteria to justify the difference of treatment in the application of the right to freedom of expression and assembly amounts to discrimination on the basis of the content of speech about sexual orientation.","82.On the whole, it seems that the aim of these measures is not so much to advance and promote traditional values and attitudes towards family and sexuality but rather to curtail non-traditional ones by punishing their expression and promotion. As such, the measures in question appear to be incompatible with \u201cthe underlying values of the ECHR\u201d, in addition to their failure to meet the requirements for restrictions prescribed by Articles 10, 11 and 14 of the Convention.","83.In the light of the above, the Venice Commission considers that the statutory provisions prohibiting \u201cpropaganda of homosexuality\u201d, are incompatible with [Convention] and international human rights standards. The Venice Commission therefore recommends that these provisions be repealed ...\u201d","C.The Committee of Ministers","37.Recommendation CM\/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010, covers a wide range of areas where lesbian, gay, bisexual or transgender persons may encounter discrimination. In the chapter concerning \u201cFreedom of expression and peaceful assembly\u201d, it provides as follows:","\u201c13.Member states should take appropriate measures to ensure, in accordance with Article 10 of the Convention, that the right to freedom of expression can be effectively enjoyed, without discrimination on grounds of sexual orientation or gender identity, including with respect to the freedom to receive and impart information on subjects dealing with sexual orientation or gender identity.","...","16.Member states should take appropriate measures to prevent restrictions on the effective enjoyment of the rights to freedom of expression and peaceful assembly resulting from the abuse of legal or administrative provisions, for example on grounds of public health, public morality and public order.","17.Public authorities at all levels should be encouraged to publicly condemn, notably in the media, any unlawful interferences with the right of individuals and groups of individuals to exercise their freedom of expression and peaceful assembly, notably when related to the human rights of lesbian, gay, bisexual and transgender persons.\u201d","38.The same Recommendation also states, in the chapter concerning \u201cEducation\u201d, as follows:","\u201c31.Taking into due account the over-riding interests of the child, member states should take appropriate legislative and other measures, addressed to educational staff and pupils, to ensure that the right to education can be effectively enjoyed without discrimination on grounds of sexual orientation or gender identity; this includes, in particular, safeguarding the right of children and youth to education in a safe environment, free from violence, bullying, social exclusion or other forms of discriminatory and degrading treatment related to sexual orientation or gender identity.","32.Taking into due account the over-riding interests of the child, appropriate measures should be taken to this effect at all levels to promote mutual tolerance and respect in schools, regardless of sexual orientation or gender identity. This should include providing objective information with respect to sexual orientation and gender identity, for instance in school curricula and educational materials, and providing pupils and students with the necessary information, protection and support to enable them to live in accordance with their sexual orientation and gender identity. Furthermore, member states may design and implement school equality and safety policies and action plans and may ensure access to adequate anti-discrimination training or support and teaching aids. Such measures should take into account the rights of parents regarding education of their children.\u201d","39.At the date of adoption of the present judgment, the Council of Europe\u2019s Committee of Ministers is continuing its supervision of the pending execution of the judgment in Alekseyev v. Russia, nos. 4916\/07 and2 others, 21 October 2010), which it classified as suitable for the enhanced supervision procedure. Most recently, at the 1273rd meeting of the Committee of Ministers (December 2016, DH) a decision was adopted (CM\/Del\/Dec(2016)1273\/H46-23) whereby the Ministers\u2019 Deputies expressed serious concern that, notwithstanding the measures presented by the Russian authorities, the situation did not attest to any improvement, as the number of LGBT public events allowed continues to be very limited. The Committee urged the authorities to adopt all further necessary measures to ensure that the practice of local authorities and the courts develops so as to ensure the respect of the rights to freedom of assembly and to be protected against discrimination, including by ensuring that the law on \u201cpropaganda of non-traditional sexual relations\u201d among minors does not pose any undue obstacle to the effective exercise of these rights. The Committee of Ministers invited the Russian authorities to continue action to address effectively the outstanding questions with a view to achieving concrete results, including taking further measures to address continued widespread negative attitudes towards LGBT persons.","40.The United Nations Human Rights Committee examined a complaint about an administrative penalty imposed under Law no. 41-OZ of the Ryazan Oblast (see Fedotova v. Russian Federation, Merits, Communication No1932\/2010, UN Doc CCPR\/C\/106\/D\/1932\/2010, IHRL 2053 (UNHRC 2012), 31 October 2012, United Nations Human Rights Committee [UNHRC]) and found as follows:","\u201c2.2On 30 March 2009, the author displayed posters that declared \u201cHomosexuality is normal\u201d and \u201cI am proud of my homosexuality\u201d near a secondary school building in Ryazan. According to her, the purpose of this action was to promote tolerance towards gay and lesbian individuals in the Russian Federation.","2.3The author\u2019s action was interrupted by police and, on 6 April 2009, she was convicted by the justice of the peace of an administrative offence [and was] punished with [an] administrative fine ...","...","10.8The Committee notes the State party\u2019s arguments that the author had a deliberate intent to engage children in the discussion of the issues raised by her actions; that the public became aware of the author\u2019s views exclusively on the initiative of the latter; that her actions from the very beginning had an \u201celement of provocation\u201d and her private life was not of interest either to the public or to minors, and that the public authorities did not interfere with her private life ... While the Committee recognizes the role of the State party\u2019s authorities in protecting the welfare of minors, it observes that the State party failed to demonstrate why on the facts of the present communication it was necessary, for one of the legitimate aims ... to restrict the author\u2019s right to freedom of expression ..., for expressing her sexual identity and seeking understanding for it, even if indeed, as argued by the State party, she intended to engage children in the discussion of issues related to homosexuality. Accordingly, the Committee concludes that the author\u2019s conviction of an administrative offence for \u201cpropaganda of homosexuality among minors\u201d on the basis of the ambiguous and discriminatory section 3.10 of the Ryazan Region Law, amounted to a violation of her rights under article 19, paragraph 2 [right to freedom of expression], read in conjunction with article 26 [protection against discrimination] of the [International Covenant on Civil and Political Rights].\u201d"],"37":["5.The applicant was born in Zimbabwe and lives in London.","6.The applicant arrived in the United Kingdom in May 2001 and was granted six months\u2019 leave to enter as a visitor. In or around 2003 he began suffering from a mental illness which led to his hearing voices in his head and at least two suicide attempts.","7.In 2004 and 2005 the applicant was convicted of a number of driving offences, including driving otherwise than in accordance with a licence, using a vehicle while uninsured and driving whilst disqualified. He was also convicted of resisting or obstructing a police officer and failing to surrender to custody. No custodial sentence was passed.","8.On 18 April 2005 the applicant made an application for asylum. However, the application was refused on 22 June 2005 on non-compliance grounds as the applicant had failed to attend his substantive asylum interview. Notice of this decision was served on the applicant on 27 June 2005. On the same day, he was served with notice of liability to removal as an overstayer.","9.The applicant did not appeal against this decision. When he subsequently failed to comply with his reporting conditions he was treated as an absconder.","10.On 13 August 2007 he was convicted of possessing Class A drugs with intent to supply and sentenced to three years\u2019 imprisonment. He did not appeal against conviction or sentence.","11.While serving his sentence the applicant was prescribed a variety of anti\u2011psychotic drugs. This was the first time he had received any treatment for his mental illness as he had previously declined to engage with psychiatrists and other health care professionals.","12.The applicant made a second asylum application on 27 March 2008. In doing so, he described two violent incidents he had experienced in Zimbabwe: first, he claimed that in 2000 he had been attacked by Zanu-PF supporters with knives, sticks and sandbags while protesting about gay rights; and secondly, he claimed that later that same year he had been arrested for demonstrating and beaten on his back and the soles of his feet while detained at a police station.","13.On 30 October 2008 the applicant was interviewed in relation to his second asylum claim.","14.On 14 November 2008 the applicant was served with a notice of liability to automatic deportation. As a consequence, when he completed his sentence on 28 November 2008 he remained in detention under the Secretary of State for the Home Department\u2019s immigration powers.","15.On 20 February 2009 the applicant was admitted to hospital for a psychiatric assessment and was sectioned for six days after his mental health deteriorated significantly.","16.On 26 May 2009, a further asylum interview took place following which the applicant submitted further evidence in support of his claim.","17.On 22 October 2009, an interview took place with the applicant for the purposes of obtaining a travel document. The applicant refused to provide bio-data for the purposes of the travel document asking to contact his solicitor first.","18.On 3 November 2009 the applicant\u2019s representatives asked the Government to allow them more time to submit medical evidence supporting the applicant\u2019s second asylum claim. The Government did not indicate whether they responded to this request.","19.On 3 December 2009 the applicant applied for bail which was refused on 9 December because the tribunal judged he posed an unacceptable risk of absconding.","20.On 16 February 2010 the Secretary of State enquired of the applicant\u2019s representatives about their intentions concerning the medical report. The applicant\u2019s representatives indicated they had requested an appointment and asserted that it would be unreasonable for the Secretary of State to make a decision without awaiting the outcome. On 10 June 2010 the Secretary of State telephoned the applicant\u2019s representatives again to ask what their intentions were regarding the medical report. The representatives indicated they would reply in writing.","21.On 22 June 2010 the applicant was interviewed again to obtain further bio-data to issue a travel document but he would not provide further details.","22.On 28 June 2010 the applicant\u2019s representatives wrote to the Secretary of State. The letter stated that his detention was unlawful and that he should be released. The representatives sent a second letter to the Secretary of State on 8 July 2010, in which they again requested that the applicant be released due to his medical conditions and pursuant to the Secretary of State\u2019s policy on not detaining mentally ill persons.","23.The Secretary of State replied to these letters on 12 July 2010 in the following terms:","\u201c1.The Secretary of State, having considered the particulars of your client\u2019s case, is satisfied that the presumption in favour of release is outweighed by the seriousness of the offence, risk of harm to the public, and risk of absconding and that your client\u2019s detention is justified and lawful.","2.It has been decided that your client should be detained because:","- Your client is likely to abscond if given temporary admission or release.","- Your client does not have close enough ties (e.g. family or friends) to make it likely that he will stay in one place.","- Your client has previously failed to comply with conditions of his stay, temporary admission or release.","- Your client has previously absconded.","- Your client has used or attempted to use deception in a way that leads us to consider he may continue to deceive.","- Your client has not produced satisfactory evidence of his identity, nationality, or lawful basis to be in the United Kingdom.","- Your client has previously failed or refused to leave the United Kingdom when required to do so.","- It is conducive to the public good for your client to be detained.\u201d","24.On 26 July 2010 the Secretary of State set a time limit of 31August 2010 for the provision of further information in support of the applicant\u2019s asylum claim.","25.On 28 August 2010 the applicant was examined by Dr S. and her expert report, dated 3 October 2010, was sent to the Secretary of State on 22November 2010.","26.Dr. S noted that the applicant had a number of scars which accorded with his description of the first assault by supporters of Zanu-PF. She also noted that he had a clear history of a psychotic illness which was characterised by many first-rank symptoms of schizophrenia. He was being treated but still experienced some symptoms, including auditory hallucinations and ideas of reference. In addition, he had symptoms of post\u2011traumatic stress disorder, including poor sleep, nightmares, intrusive daytime thoughts, and physical symptoms of fear, hopelessness and isolation.","27.On 3 November 2010 the detention centre where the applicant was detained raised concerns about his mental health. He was assessed by the Health Care Manager as unsuitable for detention under the Mental Health Act on 8 November 2010 and on 12 November 2010 as not requiring compulsory mental health treatment.","28.On 16 November 2010 the applicant applied to the tribunal for bail but withdrew his application on 19 November.","29.On 22 November 2010, the medical report was provided to the Secretary of State.","30.On 14 January 2011 the applicant submitted his application for permission to apply for judicial review, in which he challenged his continuing detention on the grounds that it was contrary to the Secretary of State\u2019s published policy on the detention of persons suffering from serious mental illness (\u201cthe mental health concession\u201d); that it was contrary to the Secretary of State\u2019s published policy on the detention of persons who had been victims of torture (\u201cthe torture concession\u201d); and that it was contrary to the principles set down in R v. Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 (\u201cthe Hardial Singh principles\u201d). The applicant also claimed damages for unlawful detention.","31.On 18 January 2011, the applicant\u2019s representatives sent a new medical report and informed the Secretary of State that they were no longer relying on the medical report provided on 22 November 2010.","32.On 8 February 2011 the Secretary of State refused the applicant\u2019s second asylum claim and made a deportation order pursuant to section 32(5) of the United Kingdom Borders Act 2007. The applicant\u2019s appeal was dismissed on 7 April 2011. On 4 May he was refused permission to appeal against that decision.","33.On 3 June 2011 the applicant was refused permission to apply for judicial review on the papers by Mr Justice Calvert-Smith. In refusing permission, he observed that the mental health concession only applied where the detainee was suffering from a serious mental illness which could not be satisfactorily managed within detention. As a consequence, he concluded that the applicant\u2019s condition fell short of the severity required.","34.With regard to the torture concession, the judge noted that the alleged torture which had happened some eleven years previously and which was said to be the cause or part cause of the mental illness the claimant was suffering from could have no bearing on the reasonableness or otherwise of the current detention. Finally, he found that the Hardial Singh principles were not infringed because:","\u201ca.the 1st principle is not engaged.","b.The 2nd and 3rd principles are not infringed. The dangers of absconscion and reoffending are and have always been real in view of the claimant\u2019s behaviour between July 2005 and his arrest in respect of the drugs matter. The recent decision of October 2010 means that the detention is not open-ended.","c.the 4th principle is not infringed. There has been no lack of expedition by the defendant since the expiry of the claimant\u2019s sentence in late 2008.\u201d","35.The applicant was released from detention on 15September 2011 after being granted bail by the Upper Tribunal.","36.On 28 October 2011 the applicant was again refused permission to apply for judicial review by Mr Justice Ouseley at a renewed oral hearing in which he heard from representatives for both parties. In the renewed application, the applicant had contended that his detention became unlawful on 28 June 2010, when the pre-action letter was sent to the Secretary of State. However, Mr Justice Ouseley rejected that claim and found that the applicant had no arguable case. In particular, he noted that there was no evidence to suggest that his mental illness could not be satisfactorily managed in detention; that there was no independent evidence that he had been tortured because his scarring was only consistent with an assault by Zanu-PF supporters which did not amount to torture, and there was no scarring consistent with his allegations of ill-treatment at the police station; and finally, that there was nothing to indicate the applicant\u2019s prospects of removal at the relevant time were nil or that efforts did not take place to effect his removal.","37.On 22 February 2012 the Court of Appeal, Civil Division refused the applicant permission to appeal the decision of 31 October 2011, finding that the High Court had been correct on every point. There was no independent evidence of torture and the fact that the mental health concession had been clarified on 26 August 2010 to refer to satisfactory management in detention did not mean that the position was otherwise before that date.","38.In the meantime, the applicant had challenged the decision to refuse his asylum claim and sought to appeal to the Court of Appeal. On 28April 2012 the Secretary of State agreed that the decision of 8February 2011 refusing the applicant\u2019s asylum claim was flawed and that the case should be remitted to the Upper Tribunal.","39.On 20 November 2012 the Upper Tribunal allowed the applicant\u2019s asylum appeal on human rights grounds. On 30 January 2013 the deportation order was revoked and the applicant was subsequently granted discretionary leave until 25 September 2013. He applied for further discretionary leave on 26 September 2013. According to the observations submitted, a decision on that application remains outstanding."],"38":["1. The applicant, Mr Teofil Luca, is a Romanian national who was born in 1959 and is detained in Baia Mare. He was represented before the Court by Ms A.I. Bindea, a lawyer practising in Baia Mare.","2. The Romanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. On 16 July 2002 the mother of R.A.M., a thirteen \u2011 year \u2011 old girl, lodged a criminal complaint against the applicant, alleging that he was involved in her daughter \u2019 s running away from home. The girl was found by the police at the applicant \u2019 s hotel. According to her initial statements, confirmed later before a prosecutor and the county court, she had been held by the applicant and his accomplice, C.I., and forced to work as a prostitute. During her time at the applicant \u2019 s hotel, over the course of about four months, she had had sexual relations with ten clients.","5. On 17 January 2003 police heard from a girl from the Republic of Moldova, C.L., after she lodged a complaint claiming that the applicant had seized her passport. She contended that he had forcibly held her in his hotel and made her work as a prostitute. When she had tried to escape, the applicant had seized her passport. The police officers carried out steps to recover her passport, and on 22 January 2003 an official report concerning the handover of the passport by the applicant was issued.","6. Starting with the lodging of the first criminal complaint in 2002, several testimonies were taken from witnesses and girls allegedly coerced by the applicant into performing sexual acts with his clients (on 22, 29, 30 and 31 January 2003, 18 February 2003, 11 March 2003, 7 and 12 April 2003, 16 and 19 June 2003).","7. On 19 December 2003 the father of a fourteen-year-old girl, B.I., lodged a criminal complaint, claiming that his daughter was missing from home. The police found the girl at the applicant \u2019 s hotel, where she had been coerced into prostitution.","8. Preliminary steps undertaken by investigators revealed that the criminal activity carried out by the applicant concerned about eighteen girls, nine of whom were minors and socially and financially vulnerable (some of the girls had run away from home, and some of them were institutionalised). C.I. and L.R. were also involved in coercing underage girls working for the applicant as bar dancers into prostitution.","9. With a view to completing the investigation, on 17 June 2003 the Maramure\u0219 County Court authorised the interception of the applicant \u2019 s telephone conversations and his being video recorded.","10. On 2 July 2004 the prosecutor \u2019 s office attached to the Maramure\u0219 County Court authorised the use of four undercover agents (\u201cZoli\u201d, \u201cOtto\u201d, \u201cErno\u201d and \u201cDaniele\u201d). The justification given for such an intervention was that, following a preliminary investigation initiated in January 2003, there was a strong indication that the applicant and C.I. were both involved in trafficking in persons and controlling prostitution for gain. The alleged criminal activities were carried out in a tourist complex managed by the applicant.","11. On 28 June 2004 the applicant met one of the undercover agents, Zoli. The latter asked him to find young girls to entertain and offer sexual services to a group of foreign tourists, who intended to spend a few days in his hotel. The applicant promised to find four girls and asked for 120 euros (EUR) for each girl, on the condition that the money was paid in advance. Their meeting was recorded.","12. The activities undertaken by the undercover agent were duly summarised in an official report. The banknotes intended for the applicant were marked with a fluorescent substance.","13. The meeting between the undercover agents and the four girls, chosen by the applicant for that occasion, took place at the applicant \u2019 s hotel on 5 July 2004. Police officers, acting with the undercover agents, caught the applicant red-handed, after he had received the banknotes marked with a florescent substance from the undercover agents. A body search of the applicant revealed that he had EUR 44,600 in his possession. The money was confiscated. The police officers also carried out a search of the hotel (authorised by the relevant judge). Everything was video recorded.","14. A search report and a flagrante delicto report were issued on 5 July 2004.","15. A prosecutor issued arrest warrants on behalf of the applicant, C.I. and L.R. They were arrested on charges of trafficking in persons, controlling prostitution for gain, and conspiracy to commit offences. The prosecutor noted in his decision that since 2002 the applicant had recruited and exploited several underage girls, most of them between fourteen and seventeen years old.","16. On 6 July 2004 the applicant was questioned and denied his involvement in any criminal activities.","17. On the same day he was remanded in custody by an interlocutory judgment delivered by the Maramure\u0219 County Court. His detention was subsequently extended by the court every thirty days.","18. On 28 July 2004 the Maramure\u0219 County Court held a closed hearing for certification of the telephone conversations and audio-visual recordings from 28 June and 5 July 2004 (see paragraphs 11 and 13 above). The hearing was held in the presence of the applicant, who was assisted by a lawyer of his own choosing.","19. On 29 July 2004 the applicant and his co-accused were formally charged with the offences of trafficking in persons, conspiracy to commit offences, and controlling prostitution for gain.","20. The applicant and his co-accused, L.R., gave evidence before the court on 26 October 2004. C.I. was heard on 23 November 2004.","21. The applicant \u2019 s lawyer asked the court to hear from the undercover agents. He also asked to have the recordings they had made played in court. His applications were dismissed, on the grounds that the court had no adequate technical devices for protecting the anonymity of the undercover agents and playing the recordings. However, the court pointed out that the transcripts of the recordings and the reports issued by the undercover agents were available for consultation in the file. The applicant did not contest the authenticity of the recordings.","22. The applicant also submitted a list of witnesses to give evidence on his behalf. Some of these witnesses were his former employees who had knowledge about the discussions and the arrangements made for the accommodation of the group of foreign tourists (see paragraph 11 above). The court did not hear all the witnesses proposed by the applicant, justifying its rejection on the basis that new evidence did not seem necessary, taking into account the evidence which had already been adduced.","23. On 3 November 2005 the county court decided to sever the charge concerning the offence of trafficking in persons, on the grounds that the alleged victim, C.L. (see paragraph 5 above), could not be found, despite efforts made by the police. Based on their investigation, it appeared that she had left Romania after the applicant had returned her passport.","24. Testimonies from twenty-four witnesses, most of them victims, their parents and persons and people working for the applicant at the tourist complex, were heard by the court in the presence of the applicant and his counsel. According to their statements, most of the girls had been employed by the applicant as dancers at the bar belonging to the tourist complex. The girls described how they had prostituted themselves, and provided details on how the applicant had put them in contact with the clients and how money had been given to the applicant for their services.","25. Two of the witnesses complained that they had been threatened by the applicant. The county court took measures to protect them.","26. In his final submissions, the applicant pointed out that several of the girls who had given evidence against him during the investigation stage had changed their initial statements in open court. He did not complain of incitement to commit the offences on the part of the undercover agents.","27. By a judgment of 2 March 2006 the county court convicted the applicant and his co-defendant C.I. of controlling prostitution for gain and conspiracy to commit offences, and sentenced them to eight years \u2019 imprisonment. It noted that between June 2002 and July 2004 they had induced into prostitution eighteen girls, including nine underage girls. It also noted that that had not been the applicant \u2019 s first criminal offence, as he had been convicted on 10 October 2002 of causing physical injury.","28. As regards the applicant \u2019 s submissions that a few girls had withdrawn their initial statements incriminating him, the court decided to rely on those testimonies which had been confirmed by other evidence available in the file. Consequently, it considered that the testimonies given by certain witnesses at the pre-trial stage of the proceedings were accurate, as they had been corroborated by the statements of sixteen witnesses given in open court. Moreover, some of the girls and their parents had confirmed their statements given at the pre-trial stage.","29. The court also based the applicant \u2019 s conviction on the telephone and audio \u2011 visual recordings made on 28 June and 5 July 2004 (see paragraphs 11 and 13 above), whose transcripts were attached to the file.","30. Relying on Article 329 \u00a7 4 of the Criminal Code, the court ordered the confiscation of the EUR 44,600 found in the applicant \u2019 s possession at the time of his arrest (see paragraph 13 above), which was considered to be benefit obtained from his criminal activity.","31. The applicant lodged an appeal, alleging that he had not been allowed by the first-instance court to adduce evidence, and asked the court to hear evidence in his defence.","32. On 22 June 2006 the Cluj Court of Appeal dismissed the applicant \u2019 s appeal, upholding the judgment of the county court. It held that the applicant, who had been assisted by counsel, had had the opportunity to prepare his defence and present his arguments in the court. Moreover, the lower court had explained its conclusions thoroughly, and had not based its decision solely on the evidence obtained during the undercover operation carried out on 5 July 2004, but mostly on the statements given by witnesses and the victims. It had allowed only evidence requested by the applicant which it had considered to be pertinent and useful for clarification of the case.","33. The applicant filed an appeal on points of law, claiming that none of the evidence requested by him had been allowed by the lower courts.","34. On 24 October 2006 the High Court of Cassation and Justice dismissed the applicant \u2019 s appeal on points of law, upholding the lower courts \u2019 decisions.","B. Relevant domestic law","35. The relevant provisions of the Code of Criminal Procedure, in force at the material time, and Law no. 143\/2000 concerning the use of undercover agents are set out in Constantin and Stoian v. Romania (nos. 23782\/06 and 46629\/06, \u00a7\u00a7 33-34, 29 September 2009)."],"39":["1. The applicant, Mr Marco Severini, is an Italian national who was born in 1968 and lives in Murata. He was represented before the Court by Mr A. Campagna, a lawyer practising in Dogana.","A. The circumstances of the case","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","3. On 4 May 2010 the applicant (a journalist who manages a website, S) was heard under oath as a witness, without the assistance of a lawyer, by an investigating judge. The questioning was in connection with a series of allegedly defamatory articles published on the website about a journalist and a politician, who had complained to the police on 2 February and 4 March 2010 respectively.","4. On an unspecified date a certain C. was questioned by the investigating judge.","5. On 7 December 2010 the investigating judge put the applicant \u2019 s name on the list as a suspect and issued a \u201cjudicial notice\u201d, informing him of the charges against him being investigated (a step required by San Marino law).","6. On 20 December 2010 the applicant was again questioned by the investigating judge, this time as a person subject to investigation, and he therefore had the assistance of a lawyer. The investigation was concluded on the same day and a bill of indictment was filed against the applicant on charges of insult, defamation and libel in connection with the above \u2011 mentioned articles.","7. According to the applicant, on an unspecified date before he became aware of the indictment, he had asked that he and his lawyer be allowed to re \u2011 examine C. The request was ignored since the bill of indictment had already been issued.","8. By a judgment of 5 November 2012 the applicant was found guilty of the charges. He was fined 5,000 euros (EUR) and ordered to pay damages that had still to be quantified.","9. The applicant appealed on the merits and further argued that the investigating judge had purposely delayed putting his name on the list of suspects, which leads to the issuing of a judicial notice, in order to deny him his defence rights, contrary to Article 4 of Law no. 93\/2008. He noted that the judge had only filed the notice after C. \u2019 s testimony (which had then been repeated at the trial).","10. On appeal, by a judgment of 9 October 2013, the applicant was acquitted of the charges relating to the politician but found guilty of insulting and libelling the journalist. His fine was reduced to EUR 3,500.","11. In respect of his procedural complaints, the court of appeal considered that all the evidence had been adduced at trial and had thus been legitimate. It further noted that being put late on the list of suspects (which is the basis for a judicial notice being issued within 30 days) and the collection of evidence in relation to an \u201c indagato sostanziale \u201d, against whom such a notice has not yet been filed, could not nullify the actions in question. Indeed, the decision as to when to issue such a notice was a matter of judicial discretion and at worst could only entail disciplinary proceedings against the judge concerned in cases of dolo or culpa grave. The court noted that in the case in question the applicant had repeated his statements in the presence of a lawyer and they had thus been totally legitimate.","12. Moreover, there had been no infringement of the rights of the defence and the earlier questioning of the applicant had allowed him to become aware of the proceedings against the website he was managing. In any event, the court of appeal considered that the applicant had failed to specify which rights had been breached by the late filing of the judicial notice.","B. Relevant domestic law","13. Law no. 93\/2008 concerning criminal procedural rules, in so far as relevant, reads as follows:","Article 3 (right to defence)","\u201cExcept in the cases mentioned in Article 5 below, the investigating judge carries out all the investigating activity in general, as well as that related to the collection of evidence and particularly its acquisition ( formazione ), while safeguarding the rights of the accused and the prerogatives of the Attorney General ( Procuratore del Fisco ) as well as the rights of private parties as protected by criminal law.","The accused, assisted by a legal representative, and the Attorney General, have the right to present their defence by means of submissions and pleas. They may also examine and make copies of all the acts in the proceedings, including the report on the crime. The investigating judge must ensure that the parties can participate or be represented at each stage of the investigation proceedings.\u201d","Article 4 (judicial notice)","\u201c(1) Within thirty days of the crime report ..., save for the exceptions set out in Article 5 below, the investigating judge must personally inform the accused and the Attorney General of the legal and factual elements of the crime in respect of which proceedings are being carried out ...\u201d"],"40":["A.Background to the case","7.The applicants, all Georgian nationals, were born in 1946, 1947 and 1957 respectively. At the material time they lived in different flats in a residential block (\u201cthe building\u201d) constructed in 1952 and situated at 4Uznadze Street in Tbilisi.","8.The building is located in the city centre, in close proximity (approximately 4 metres) to the \u201cTboelectrocentrali\u201d thermal power plant (\u201cthe plant\u201d). The plant was constructed in 1911 and reconstructed at a later date. It started operations in 1939. For several decades it burned coal to generate power, before replacing it with natural gas. The plant provided the adjacent residential areas with electricity and heat.","9.Several accidents have been reported throughout the plant\u2019s history. An accident on 10 April 1996 rendered it inoperative for more than thirty days. An expert report concerning the incident disclosed that the main reason behind the accident was the fact that no major repairs had been carried out there since 1986.","10.On 2November 1999 Presidential Decree No. 613 was issued, stating that the plant was to be privatised and sold directly to a private company. The privatisation agreement between the Government and the company was concluded on 6 April 2000.","11.On 2 February 2001 the plant partially ceased generating power owing to financial problems. However, it continued to use some of the generators.","12.According to the applicants, while operational the plant\u2019s dangerous activities were not subject to the relevant regulations, as a result of which, in addition to some other alleged nuisances, it emitted various toxic substances into the atmosphere negatively affecting their well-being.","B.Domestic proceedings","1.First set of proceedings","(a)Correspondence with the domestic authorities","13.On unspecified dates the applicants and other residents of the building lodged complaints with the municipal authorities, alleging that nuisances were emanating from the plant such as air, noise and electromagnetic pollution and water leakage. By official letters dated 22March 2000, 19 October 2000 and 16 January 2001 the Tbilisi City Hall (\u201cthe City Hall\u201d) acknowledged that the residents of the building had been affected by the nuisances they had complained of. It advised the central Government that relocation of the plant would not be in the public interest in view of the acute energy crisis in the country and suggested that the residents of the affected area be offered electricity and heat free of charge as a form of compensation.","14.In the letter dated 22 March 2000 the City Hall asked the plant to implement certain environmental protection measures, including the installation of chimney filters to reduce the air pollution emanating from the plant. The request was left unaddressed.","15.On 1 October 2001, in an official response to a query by the applicants, the City Hall confirmed that the plant\u2019s activities fell within the \u201cfirst category\u201d within the meaning of the Environmental Permits Act (see paragraphs 43-44 below) and that the Ministry of the Environment and Natural Resources (\u201cthe Ministry of the Environment\u201d) was responsible for issuing the relevant permit.","(b)Action for damages and the friendly settlement","16.On an unspecified date in the summer of 2000 the applicants and other residents of the building brought an action for damages against the plant concerning the environmental nuisances emanating from the plant. A friendly settlement was reached between the parties on 12 December 2000, according to which the claimants would renounce their claims in exchange for a commitment by the plant\u2019s management to provide them with hot water, electricity and heat free of charge. Owing to technical difficulties and a lack of cooperation between the relevant authorities, the friendly settlement was left unenforced.","2.Second set of proceedings","(a)In the Tbilisi Regional Court","(i)The claimants\u2019 submissions","17.On 25 October 2001 the applicants and three other residents of the building (\u201cthe claimants\u201d) brought a fresh action against the plant and other respondents including the Tbilisi electricity distribution company, AES TELASI JSC (\u201cAES\u201d), the City Hall and the Ministry of the Environment. They claimed compensation for pecuniary and non-pecuniary damage for the harm caused to their health and well-being by the air, noise and electromagnetic pollution and water leakage emanating from the plant. They relied on privately commissioned independent expert opinions in support of their complaints.","(ii)Expert examinations commissioned by the court","18.On 7 March and 23 September 2002 the Tbilisi Regional Court granted a request by the claimants and ordered the Ministry of Justice, the Ministry of Labour, Health and Social Affairs and the Ministry of the Environment to arrange a number of expert examinations. The latter were intended to measure the environmental pollution caused by the plant, clarify how the associated harmful effects had affected the claimants\u2019 health and might have endangered human life, and identify appropriate remedies.","(\u03b1)Air pollution","19.An expert examination dated 28 October 2002 and carried out by the Expertise and Special Research Centre at the Ministry of Justice concluded as follows:","\u201cAs the \u201cTboelectrocentrali\u201d plant does not have a [buffer] zone and is immediately adjacent to a residential building, the plant\u2019s chimneys must be equipped with appropriate filters and other equipment to protect the population from the hazardous gases.\u201d","20.On 17 January 2003 the Institute of Environmental Protection (\u201cthe IEP\u201d) at the Ministry of Environment issued an expert opinion on the air pollution and noise levels in the residential area concerned. It noted that while the plant\u2019s equipment responsible for the emission of toxic substances stood idle, it was impossible to determine the real pollution situation with which the residents had had to cope for years and noted that \u201cthe results were considerably minimised compared to the possible real picture.\u201d","21.The expert opinion disclosed that the plant\u2019s technical compliance document was defective as it did not reveal all the chemical substances known to be emitted into the atmosphere in the course of natural gas burning. That document also incorrectly indicated the height of the chimneys as 30.8metres instead of the actual 27 metres, which could lead to the pollution data being misleadingly decreased.","22.With regard to the air pollution and the possible impact upon the residents of the building, the expert opinion concluded as follows:","\u201cConsidering the fact that the plant does not have a [buffer] zone and is immediately adjacent to a residential building ..., taking into account the direction of the wind, a whole bouquet of emissions is reaching into the homes ... negatively affecting the population living in the adjacent area.\u201d","23.The opinion specified that even where individual hazardous substances were considered to be within the acceptable margin, it was necessary to consider the combined impact of various substances upon the health of the population as the combined toxicity might go beyond the acceptable limits. It continued to note in this connection that the concentrated toxicity of the gases emitted by the plant was twice the norm and the residents of the building concerned had to live in conditions where the concentration of toxic substances surpassed the acceptable limits twenty-four hours a day. The IEP proposed that the competent municipal authorities either ban those industrial activities or ensure the plant\u2019s relocation outside the town, where at least a buffer zone could be established.","24.On 4 March 2003 the Institute of Scientific Research in Health and Hygiene at the Ministry of Labour, Health and Social Affairs responded to a query by the applicants and listed the diseases that might potentially be caused by excessive concentrations in the air of substances such as SO2, CO, NO2, smoke and black dust. These were mucocutaneous disorders, conjunctivitis, bronchitis, bronchopulmonary and other pulmonary diseases, allergies, different types of cardiovascular disease and anoxemia (low oxygen levels in the blood), which could lead to other serious disorders.","(\u03b2)Noise levels","25.On 17 January 2003 the IEP issued an expert opinion concerning the noise levels in the building. Without specifying the noise levels in the individual flats of the applicants, the opinion concluded in generic terms that \u201cthe residential building ... situated at 4 Uznadze Street [was] affected by noise in excess of the permissible limits.\u201d","26.On 6 February 2004 the IEP expert carried out an additional investigation aimed at determining the noise levels in the individual flats of the claimants. It concluded that the permissible levels of noise were exceeded only with respect to two claimants and not in the applicants\u2019 apartments.","(\u03b3)Electromagnetic pollution","27.An expert opinion issued by the IEP on 7 November 2002 stated that the intensity of the electromagnetic waves did not exceed the permissible levels.","28.The expert opinion produced by the Ministry of Labour, Health and Social Affairs on 17January 2003 disclosed that, in some instances, the intensity of the electromagnetic fields in the vicinity of the building exceeded the permissible levels. It concluded however that it was impossible to establish the exact source of the electromagnetic pollution.","(\u03b4)The applicants\u2019 health","29.On 13 May 2003 the court ordered the Forensic Medical Examination Centre at the Ministry of Labour, Health and Social Affairs to examine the health of four of the claimants. The third applicant and another claimant were not included, without any reasons being given for their exclusion. Its experts were asked to give an opinion on whether the claimants were suffering from any diseases which might have been caused by the pollution emanating from the plant.","30.The Forensic Medical Examination Centre carried out the court\u2011commissioned examination between 7 August and 17 September 2003. A panel of experts concluded that the four claimants \u201c[had] been affected by a combined impact of protracted exposure to harmful factors such as SO2, NO, CO2 as well as black dust, noise and electromagnetic pollution negatively impacting their health.\u201d The first and second applicants were found to be suffering from largely similar health conditions such as neurasthenia and asthenic syndrome. The panel considered it \u201cpossible that the asthenic syndrome and neurasthenia ... [had been] caused by the prolonged and combined effect of being exposed to harmful factors.\u201d It added that \u201ctaking into account the circumstances of the case, the worsening of the health conditions of the persons examined [had not been] excluded.\u201d","(iii)Regional Court\u2019s findings","31.On 12 March 2004 the Tbilisi Regional Court dismissed the claims of the applicants and another claimant, but partially allowed the claims of two other claimants (\u201cthe successful claimants\u201d) with respect to the noise pollution emitted by the plant\u2019s generators. Relying on the expert examination of the IEP concerning the noise levels, the court found that only the two successful claimants\u2019 flats were affected by noise in excess of the permissible limits. It awarded them 5,000 Georgian laris (GEL \u2013 equivalent to 1,981 euros (EUR))[1] each, holding the plant, the City Hall, and the Ministry of the Environment jointly liable:","\u201c... Both the City Hall and the Ministry failed to fulfil the obligations imposed on them by law. That is to say, despite the claimants\u2019 numerous requests and complaints, [the authorities concerned] failed to take specific measures to ensure an environment safe enough for the claimants\u2019 health.\u201d","32.Furthermore, acknowledging that the plant was responsible for the infiltration of water into the foundations of the building, the court ordered it to halt the leakage and make the necessary repairs to the ruptured walls.","33.As regards the air pollution complained of, the court found that the material before it did not prove a causal link between the emissions and the claimants\u2019 health problems described in the Forensic Medical Examination Centre\u2019s expert report.It further suggested that the third applicant and another claimant had refused to undergo the medical examination.","34.While the court accepted the experts\u2019 conclusions that the plant had breached certain environmental standards by not having filters and other purification equipment in place to decrease the emission of toxic substances, it refused to order the plant to install such equipment on the grounds that the sole remedy requested by the claimants had been compensation for the damage caused by the pollution.","(b)In the Supreme Court","35.On 4 May 2004 the claimants appealed to the Supreme Court. Relying on the Court\u2019s judgment in the case of L\u00f3pez Ostra v.Spain (9December 1994, Series A no. 303\u2011C) and the findings of the court\u2011commissioned expert examinations at the domestic level, they reiterated their complaints about the lack of a buffer zone and the inherent risk of pollution, the absence of purification equipment over the plant\u2019s chimneys and its impact upon their health and well-being, and the defectiveness of the plant\u2019s technical compliance document. They further disagreed with the lower court\u2019s findings with respect to the alleged noise pollution emanating from the plant.","36.On 21 April 2005 the Supreme Court delivered a final judgment in the case. It upheld the appeals of the two already successful claimants and ordered the plant\u2019s operators, the City Hall and the Ministry of the Environment to pay them, jointly, GEL7,000 (EUR2,938)[2] each for the deterioration of their health caused by the noise pollution that persisted after the partial termination of the plant\u2019s activities on 2 February 2001 and affected them individually (see paragraphs 11 and 26 above). In addition, it ordered the plant to pay GEL 50 (EUR 21) monthly to one claimant and GEL 100 (EUR 42) to the other.It further upheld the lower court\u2019s finding concerning the plant\u2019s responsibility for the infiltration of water into the foundations of the building.","37.The Supreme Court rejected the complaint concerning the electromagnetic pollution as unsubstantiated.","38.As regards the submissions concerning the air pollution, the Supreme Court dismissed them as unsubstantiated. It reasoned that the claimants\u2019 reference to violations of environmental standards, regardless of their validity, could not have served as a basis for awarding damages for air pollution considering that they had not requested that the plant\u2019s permit be revoked, that filters be installed over the chimneys, that other environmental protection measures be implemented, or that the hazardous activities be banned or relocated.","39.The court further noted that the Court\u2019s findings in the case of L\u00f3pezOstra v. Spain could not serve as grounds for requesting damages. It highlighted the fact that the plant in the instant case had been operational since 1939 while the flats had been built at a later date in 1952. It consequently concluded that the applicants had accepted the associated dangers when choosing to settle near the plant and were effectively barred from claiming any damages in that respect within the meaning of the Compensation for Damage Inflicted by Dangerous Substances Act (see paragraph 47 below). It thus concluded that the appellants had been under a duty to tolerate nuisances such as noise, smells, steam and gases caused by the ordinary industrial activities of the neighbouring plant, whose essential purpose had been to supply the nearby buildings with heating and hot water. The court interpreted the applicants\u2019 unenforced friendly settlement in an earlier set of proceedings (see paragraph 16 above) as their acceptance of the ecological discomfort.","40.The Supreme Court further reasoned that at the time of the proceedings the plant had suspended most of its operations and had no longer been emitting any substances into the air. Consequently, the appellants were no longer being affected by the pollution. Moreover, they had failed, in the court\u2019s opinion, to show what specific pecuniary damage, if any, had been sustained as a result of the air pollution in the previous years. It was further noted that the appellants had not specified the costs which they had incurred or would inevitably incur in the future for medical treatment for their health problems."],"41":["1. A list of the applicants is set out in the Appendix.","A. The circumstances of the case","1. The background facts","2. The facts of the case may be summarised as follows.","3. The first applicant (\u201cCG\u201d) was born on 4 August 2016. His parents are the second and third applicants. CG initially appeared to have been born healthy. Medical professionals subsequently observed that CG was failing to gain weight, and his breathing was becoming increasingly lethargic and shallow. He was admitted to Great Ormond Street Hospital (\u201cGOSH\u201d) on 11 October 2016, where he has remained since.","4. There is no dispute that CG is suffering from a very rare and severe mitochondrial disease called infantile onset encephalomyopathic mitochondrial DNA depletion syndrome (\"MDDS\"). The disease is caused by mutations in a gene called RRM2B. The mutations cause the deterioration and death of fuel-giving mitochondrial cells in every part of the patient \u2019 s body, depriving him of the essential energy for living. In CG \u2019 s case, his brain, muscles and ability to breathe are all seriously affected. He has progressive respiratory failure and is dependent on a ventilator. He can no longer move his arms or legs and is not consistently able to open his eyes. He is persistently encephalopathic, meaning that there are no usual signs of normal brain activities such as responsiveness, interaction or crying. In addition he has congenital deafness and a severe epilepsy disorder. His heart, liver and kidneys are also affected but not severely.","5. The parents became aware of a form of therapy (\u201cnucleoside treatment\u201d) which has been used on patients with a less severe mitochondrial condition known as TK2 mutation. This type of mutation primarily causes myopathy (muscle weakness) but does not affect the brain in the majority of cases. There is some evidence that patients with TK2 mutation have benefited from nucleoside treatment. The parents contacted Dr I, Professor of Neurology at a medical centre in America. Dr I confirmed that nucleoside treatment had not been used on either mice or humans with RRM2B mutation, but that there was a \"theoretical possibility\" that the treatment might be of benefit to CG.","6. At the start of January 2017, a plan was devised by CG \u2019 s treating clinicians in the United Kingdom for nucleoside treatment to be administered in the United Kingdom. As the treatment is experimental, an application to the Ethics Committee was prepared to authorise its use and a meeting planned for 13 January. However before a treatment plan could be agreed, CG experienced an episode of brain seizures as a result of his epilepsy, which started on around 9 or 10 January and continued intermittently until 27 January. On 13 January, CG \u2019 s treating clinicians informed the parents that CG was suffering severe epileptic encephalopathy. They concluded that nucleoside treatment would be futile and would only prolong CG \u2019 s suffering. His case was also considered by an expert team in Barcelona, which reached the same conclusion. The meaning of \u201cfutile\u201d was the subject of argument at the domestic level. The Court of Appeal concluded:","\u201c44. In relation to the judge \u2019 s use of the word \u201cfutile\u201d it is argued that there is a distinction between the medical definition of futility and the concept of futility in law .... Medicine looks for \u201ca real prospect of curing or at least palliating the life-threatening disease or illness from which the patient is suffering\u201d, whereas, for the law, this sets the goal too high in cases where treatment \u201cmay bring some benefit to the patient even though it has no effect on the underlying disease or disability \u201d .... In the present case, tragically, this is a difference without a distinction in the light of the judge \u2019 s finding that the potential benefit of nucleoside therapy would be \u201czero\u201d. It would therefore be, as the judge held at paragraph 90, \u201cpointless and of no effective benefit\u201d.","2. Judgment of the High Court of 11 April 2017, Great Ormond Street Hospital v. (1) Constance Yates, (2) Chris Gard, (3) Charles Gard (A child by his Guardian Ad Litem) [2017] EWHC 972 ( Fam )","7. In February 2017, GOSH made an application to the High Court for an order stating that it would be lawful, and in CG \u2019 s best interests, for artificial ventilation to be withdrawn and palliative care provided. The application was opposed by the parents. The question of possible nucleoside therapy was raised by the parents as the proceedings progressed and they put information before the High Court that Dr I was willing to treat CG. Accordingly, the order ultimately included a third element, that it would not be in CG \u2019 s interest to undergo nucleoside treatment (see paragraph 31).","8. Over the course of three days in April 2017, the High Court heard evidence from the parents, CG \u2019 s guardian (see paragraph 17) and a number of expert witnesses including Professor A, Dr B and CG \u2019 s two nurses at GOSH, and Dr I by telephone. It received a report from the medical expert instructed by the parents, Dr L. The Court also received 4 second opinions from world leading medical experts in paediatrics and rare mitochondrial disorders. They were Dr C, Consultant in Paediatric Intensive Care at St. Mary \u2019 s Hospital; Dr D, Consultant Respiratory Paediatrician at Southampton Hospital; Dr E, Consultant and Senior Lecturer in Paediatric Neurology at the Newcastle Upon Tyne NHS Foundation Trust, and Dr F, Consultant Paediatric Neurologist at St. Mary \u2019 s Hospital. The judge also visited CG in hospital.","( a) The Medical Evidence as Presented by Great Ormond Street Hospital and Dr L","9. Dr B, Consultant Paediatric Intensivist at GOSH, gave evidence that CG was so damaged that there was no longer any movement (noting that there was no evidence of a sleep\/wake cycle). He said that there were no further treatments available to CG which could improve him from his current situation and that this was the opinion of the entire treatment team, including those from whom a second opinion had been obtained. He stated that CG can probably experience pain, but was unable to react to it in a meaningful way.","10. Professor A, a leading expert with a special interest in mitochondrial diseases, gave evidence on the prospect of successful nucleoside treatment. She noted that the treatment had never been tried on humans or even on animals with the RRM2B mutation. She stated that even if there was an ability to cross the blood\/brain barrier, the treatment could not reverse the structural damage already done to the CG \u2019 s brain. She said that seizures in mitochondrial disease are a sign that death is, at most, six to nine months away.","11. Professor A added that:","\u201c90 ... she and Dr I did not really differ on the science and that both agree that, very sadly, it is extremely unlikely to help Charlie. She said that, in her view, there was a cultural difference in philosophy between treatment in the United States and in the United Kingdom. She said that she tried to have the child at the centre of her actions and thoughts whereas in the United States, provided there is funding, they will try anything.\u201d","12. Dr L, Consultant Paediatric Neurologist, was instructed on behalf of the parents. His report was produced on the second day of the hearing. Dr L concluded that:","\"The nature of [CG \u2019 s] condition means that he is likely to continue to deteriorate, that he is likely to remain immobile, that he will exhibit severe cognitive impairment, that he will remain dependent on ventilatory support to maintain respiration, will continue to need to be tube fed and that he will always be dependent on mechanical ventilation to maintain life.\"","( b) The Medical Evidence as presented by Dr I","13. Although he had never examined CG himself, Dr I had full access to his medical history. After reviewing recent EEG results, Dr I stated:","\"98 .[ ...] I can understand the opinion that he is so severely affected by encephalopathy that any attempt at therapy would be futile. I agree that it is very unlikely that he will improve with that therapy [nucleoside treatment]. It is unlikely.\"","14. The judge summarised Dr I \u2019 s evidence stating:","\u201c127. Dr I who has not had the opportunity of examining Charlie, and who operates in what has been referred to as a slightly different culture in the United States where anything would be tried, offers the tiniest chance of some remotely possible improvement based on a treatment which has been administered to patients with a different condition. I repeat that nucleoside therapy has not even been tried on a mouse model with RRM2B. As Dr I candidly said,","\u201cIt is very difficult for me never having seen him, being across the Atlantic and seeing bits of information. I appreciate how unwell he is. His EEG is very severe. I think he is in the terminal stage of his illness. I can appreciate your position. I would just like to offer what we can. It is unlikely to work, but the alternative is that he will pass away.\u201d","15. Asked what level of functioning could reasonably be expected after treatment with nucleoside, he said that the main benefit would be improvement of weakness, increased upper strength, and reduced time spent on ventilators. He however accepted that the treatment, if administered, was unlikely to be of any benefit to CG \u2019 s brain. He described the probability as low, but not zero. He agreed that there could be no reversal of the structural damage to Charlie \u2019 s brain.","( c) Position of the parents","16. The parents denied that CG \u2019 s brain function was as bad as the expert evidence made out. They denied that CG did not have a sleep\/wake cycle. They acknowledged and accepted that the quality of life that CG had was not worth sustaining without hope of improvement.","( d) Position of CG represented by his guardian (appointed by the High Court)","17. At the outset of the proceedings the High Court joined CG to the proceedings and appointed a guardian to represent CG \u2019 s interests throughout the proceedings, who in turn appointed legal representatives. The relevant procedural rule permits joining a child where the court considers this is in the best interests of the child. The Court must then appoint a guardian unless it is satisfied that it is not necessary to do so to safeguard the interests of the child. According to the relevant practice direction (see section 3 below):","\u201cIt is the duty of a children \u2019 s guardian fairly and competently to conduct proceedings on behalf of the child. The children \u2019 s guardian must have no interest in the proceedings adverse to that of the child and all steps and decisions the children \u2019 s guardian takes in the proceedings must be taken for the benefit of the child.\u201d","18. Throughout the domestic proceedings, the guardian argued that it was not in CG \u2019 s best interests to travel to America to receive purely experimental treatment with no real prospect of improving his condition or quality of life.","( e) Decision","19. On 11 April 2017, the High Court acceded to GOSH \u2019 s applications.","20. The High Court judge firstly outlined the relevant legal test as applied to decisions relating to medical treatment of children (see section 2 below). He acknowledged that though parents with parental responsibility have the power to give consent for their child to undergo treatment, as a matter of law, overriding control is vested in the court exercising its independent and objective judgement in the child \u2019 s best interests. In making that decision, the welfare of the child is paramount. The starting point is the strong presumption of the sanctity of life, and a course of action which will prolong life. The judge must look at the question from the assumed point of view of the child. The term \u2018 best interests \u2019 encompasses medical, emotional, and all other welfare issues.","21. The judge observed that there was a consensus from all of the doctors that had examined CG, including the medical expert instructed by the parents that nucleoside treatment would be futile, that is to say pointless and of no effective benefit.","22. The judge concluded that subjecting CG to nucleoside treatment would be to enter unknown territory and could possibly subject him to pain, accepting the evidence that:","\u201c22...the GOSH team believe that Charlie can probably experience pain but is unable to react to it in a meaningful way. Their evidence was that being ventilated, being suctioned, living as Charlie does, are all capable of causing pain. Transporting Charlie to the USA would be problematic, but possible.\u201d","23. The judge concluded:","\u201c128. As the Judge whose sad duty it is to have to make this decision, I know that this is the darkest day for Charlie \u2019 s parents who have done everything that they possibly can for him and my heart goes out to them as I know does the heart of every person who has listened to this tragic case during the course of the past week or so. I can only hope that in time they will come to accept that the only course now in Charlie \u2019 s best interests is to let him slip away peacefully and not put him through more pain and suffering\u201d.","3. The Court of Appeal Decision of 23 May 2017, (1) Constance Yates, (2) Christopher Gard \u2013 and \u2013 (1) Great Ormond Street Hospital for Children NHS Foundation Trust - and \u2013 (2) Charles Gard (a child, by his guardian) [2017] EWCA Civ 410","24. Before the Court of Appeal, the applicants sought to argue that the High Court judge had erred by relying on the \u2018 best interests \u2019 test alone. They sought to make a distinction between two types of cases relating to medical treatment of children. The first type of case involves parents who oppose the course of treatment for which the treating clinicians apply, and who do not have a viable alternative treatment to put before the court. In the second type of case there is a viable alternative treatment option put forward by the parents. The applicants submitted that their case fell into the latter category. In these circumstances, the applicants (relying on a recent High Court case ( Re King [2014] EWHC 2964 (Fam.)) argued that a parent \u2019 s preferred treatment option should only be overridden if it is established that the option would likely cause the child \u201csignificant harm\u201d. The applicants also argued that it was the hospital who had applied to prevent the delivery of a therapy which it did not, itself, intend to provide. This was outside its powers as a public authority, and the court had no jurisdiction to uphold the hospital \u2019 s position.","25. The applicants relied on Article 8 of the Convention to say that applying a \u201cbest interests\u201d test, rather than a \u201csignificant harm\u201d test permitted unjustified interference in their parental rights under that Article. They also referred to Articles 2 and 5 of the Convention, but did not develop any arguments under those Articles. CG \u2019 s guardian and GOSH maintained their position that the course of action proposed by the parents was not in CG \u2019 s best interests.","26. Permission to appeal was granted in respect of the human rights grounds, but only in so far as they supplemented the core grounds for appeal.","27. On 23 May 2017, the Court of Appeal dismissed the appeal. It stated:","\u201c96. If one option is favoured by a parent, that may give it weight, or as Lord Justice Waite put it, incline the court to be \u201dinfluenced by a reflection that in the last analysis, the best interests of every child, include an expectation that difficult decisions affecting the length and quality of its life will be taken for it by the parent to whom its care has been entrusted by nature\u201d Notwithstanding that that is the case, in the end it is the judge who has to choose the best course for a child. Whereas, in the case of Re King before Mr Justice Baker, there really was nothing to choose as between the benefits and detriments of two forms of radiotherapy, the court readily stood back and allowed the parents to make their choice\u201d.","...","\u201c112. It goes without saying that in many cases, all other things being equal, the views of the parents will be determinative. Very many cases involving children with these tragic conditions never come to court because a way forward is agreed as a result of mutual respect between the family members and the hospital, but it is well recognised that parents in the appalling position that these and other parents can find themselves may lose their objectivity and be willing to \u201ctry anything\u201d even if, when viewed objectively, their preferred option is not in a child \u2019 s best interest. As the authorities to which I have already made reference underline again and again, the sole principle is that the best interests of the child must prevail and that must apply even to cases where parents, for the best of motives, hold on to some alternate view.\u201d","28. It found that the High Court was entitled to conclude that the nucleoside treatment option would be futile, and would have no benefit. As a consequence, nucleoside treatment was not a viable option before the court. The court therefore concluded that the factual basis for the applicants \u2019 submissions was undermined, and that the question of whether a distinction existed between types of cases involving medical treatment for children advocated by parents did not arise.","29. Nevertheless, the Court of Appeal considered the \u201csignificant harm\u201d test proposed by the applicants and stated that:","\u201c114...It must follow from that unanimous professional and expert evidence that to move Charlie to America and expose him to treatment over there would be likely to expose him to continued pain, suffering and distress\u201d.","30. The court said:","\u201c114... it is plain that the [High Court] judge was not invited to consider the law in the way that is now put before this court let alone to consider the existence of \u201ccategory 2\u201d cases with the need to establish a threshold for significant harm. I have made extensive reference to the evidence as recorded by the judge regarding Charlie \u2019 s current state. It is clear, in my view, that if the judge had been invited to form a conclusion on whether Charlie was or was not suffering significant harm currently, that finding would have been made. At paragraph 49 the judge records the evidence of the doctors, the medical staff who have knowledge of the current state of Charlie \u2019 s life in the hospital and each of the other experts as follows:","\u201cIn some parts of the media this has been referred to as \u201cpioneering treatment\u201d. In fact, this type of treatment has not even reached the experimental stage on mice let alone been tried on humans with this particular strain of MDDS. It is the view of all those who have treated and been consulted in relation to Charlie in this country and also in Barcelona that such treatment would be futile, by which I mean would be of no effect but may well cause pain, suffering and distress to Charlie. This is the principal issue with which I have to grapple in this case [emphasis added]\u201d.","...","115. The administration of nucleoside therapy, which involves no more than the introduction of some powder into the nutritional feed to Charlie \u2019 s body and may, at most, trigger some adverse bowel reaction, may be relatively benign and may not itself cause significant harm. The prospect of significant harm arises, however, in the context of such treatment from the judge \u2019 s finding that it would be of no benefit for Charlie and that he would need to continue with the regime of life-sustaining treatment, which the judge concluded was not otherwise in his best interests, so that the nucleoside therapy could be administered\u201d.","31. The court also concluded that the hospital had not acted outside its powers. The issue of nucleoside treatment had been raised by the parents, not by the hospital. The appeal court found that the High Court judge \u2019 s decision resulted from a \u201cchild-focused, court-led evaluation of the baby \u2019 s best interests\u201d. The fact that the merits of the alternative treatment represented a large part of the evaluation demonstrated that the judge had regarded the parents \u2019 views as an important part of the process.","32. On the basis that the human rights grounds supported the applicant \u2019 s primary grounds, the Court of Appeal found that they too should be dismissed.","4. The Supreme Court decision of 8 June 2017, in the Matter of Charlie Gard","33. The applicants requested permission to appeal from the Supreme Court, who heard their application on Thursday 8 June 2017. Before the Supreme Court the applicants repeated the arguments made before the lower courts with a particular focus on the respect for their parental rights under Article 8, repeating the argument rejected by the Court of Appeal that the only reason which could justify interference in their Article 8 rights would be if there were a risk of \u201csignificant harm\u201d to the child.","34. GOSH and CG \u2019 s guardian underlined that in accordance with domestic and international law, the best interests of the child were of paramount importance. They repeated their arguments that taking Charlie to America for experimental treatment was not in his best interests. CG \u2019 s guardian underlined that even if the proposed \u201csignificant harm\u201d test were applied, the applicant \u2019 s claim would still fail because as stated by the Court of Appeal, continuing to maintain his life and taking him to America would be likely to expose him to continued pain, suffering and distress.","35. The Supreme Court rejected the applicants \u2019 request for permission on the basis that no point of law of general, public importance had been identified. With reference to the domestic statute; the Convention; this Court \u2019 s case law; and the UN Convention on the rights of the child, the Supreme Court underlined that the welfare of the child shall be the paramount consideration. In its determination of the application on permission to appeal it concluded:","\u201cFinally, the European Court of Human Rights has firmly stated that in any judicial decision where the rights under Article 8 of the parents and the child are at stake, the child \u2019 s rights must be the paramount consideration. If there is any conflict between them the child \u2019 s interests must prevail\u201d.","36. The Supreme Court also reiterated the finding of the Court of Appeal that even if the \u201cbest interests\u201d test were replaced with a test of \u201csignificant harm\u201d, it is likely that Charlie would suffer significant harm if his present suffering is prolonged without any realistic prospect of improvement.","5. The Supreme Court decision of 19 June 2017, in the Matter of Charlie Gard","37. In light of the indication of this Court of 13 June 2017 under Rule 39, the government requested a hearing before the Supreme Court for directions on whether the Supreme Court could direct a further stay of the declaration of the High Court of 11 April 2017 (see paragraph 19 above). In their judgment the Supreme Court stated:","\u201c15. Every day since 11 April 2017 the stays have obliged the hospital to take a course which, as is now clear beyond doubt or challenge, is not in the best interests of Charlie. The hospital finds itself in an acutely difficult ethical dilemma: although the stays have made it lawful to continue to provide him with AVNH, it considers it professionally wrong for it to have continued for over two months to act otherwise than in his best interests.","...","\u201c17. We three members of this court find ourselves in a situation which, so far as we can recall, we have never previously experienced. By granting a stay, even of short duration, we would in some sense be complicit in directing a course of action which is contrary to Charlie \u2019 s best interests\u201d.","38. The court also recalled the importance of protecting the applicants \u2019 right to petition this Court and accordingly, granted a further stay until midnight on 10\/11 July 2017.","39. In closing the Supreme Court noted:","\u201c22. By way of postscript, the court was today informed that the proposed application to the ECtHR will be made not only by the parents but also by or on behalf of Charlie. It is not, of course, for this court to comment on how the ECtHR should address the status of an application made by parents on behalf of a child for a declaration that his rights have been violated by decisions found to have been made in his best interests. But, as the ECtHR well knows, our procedures have required that Charlie \u2019 s participation in the domestic proceedings should at all times have been in the hands of an independent, professional guardian\u201d.","B. Relevant domestic law and practice","1. The Children Act 1989","40. Subsection 1 is titled \u201cWelfare of the child\u201d. It provides:","(1) When a court determines any question with respect to\u2014","(a) the upbringing of a child; ...","the child \u2019 s welfare shall be the court \u2019 s paramount consideration.","(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.","41. The Act also addresses \u201cparental responsibility\u201d. It provides that where a child \u2019 s father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child. Each of the parents, or the mother if she is unmarried, has parental responsibility over the child. Section 3 states. In the Act \"parental responsibility\" means:","\u201c all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.\"","42. Section 8 (1) grants the courts the powers to make orders with respect to children in certain circumstances, known as \u201cspecific issue\u201d orders.","2. Domestic case law","( a) Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR at p.480.","43. The court stated that a child \u2019 s parents having parental responsibility have the power to give consent for their child to undergo treatment, but overriding control is vested in the court exercising its independent and objective judgment in the child \u2019 s best interests.","( b) An NHS Trust v. MB (A Child represented by CAFCASS as Guardian ad Litem) [2006] 2 FLR 319.","44. The court said as follows:","\"( i ) As a dispute has arisen between the treating doctors and the parents, and one, and now both, parties have asked the court to make a decision, it is the role and duty of the court to do so and to exercise its own independent and objective judgment.","(ii) The right and power of the court to do so only arises because the patient, in this case because he is a child, lacks the capacity to make a decision for himself.","(iii) I am not deciding what decision I might make for myself if I was, hypothetically, in the situation of the patient; nor for a child of my own if in that situation; nor whether the respective decisions of the doctors on the one hand or the parents on the other are reasonable decisions.","(iv) The matter must be decided by the application of an objective approach or test.","(v) That test is the best interests of the patient. Best interests are used in the widest sense and include every kind of consideration capable of impacting on the decision. These include, non-exhaustively, medical, emotional, sensory (pleasure, pain and suffering) and instinctive (the human instinct to survive) considerations.","(vi) It is impossible to weigh such considerations mathematically, but the court must do the best it can to balance all the conflicting considerations in a particular case and see where the final balance of the best interests lies.","(vii) Considerable weight (Lord Donaldson of Lymington MR referred to \u2018 a very strong presumption \u2019 ) must be attached to the prolongation of life because the individual human instinct and desire to survive is strong and must be presumed to be strong in the patient. But it is not absolute, nor necessarily decisive; and may be outweighed if the pleasures and the quality of life are sufficiently small and the pain and suffering or other burdens of living are sufficiently great.","(viii) These considerations remain well expressed in the words as relatively long ago now as 1991 of Lord Donaldson of Lymington in Re J (A minor) ( wardship : medical treatment) [1991] Fam 33 at page 46 where he said:","\u2018 There is without doubt a very strong presumption in favour of a course of action which will prolong life, but ... it is not irrebuttable ... Account has to be taken of the pain and suffering and quality of life which the child will experience if life is prolonged. Account has also to be taken of the pain and suffering involved in the proposed treatment... We know that the instinct and desire for survival is very strong. We all believe in and assert the sanctity of human life .... Even very severely handicapped people find a quality of life rewarding which to the unhandicapped may seem manifestly intolerable. People have an amazing adaptability. But in the end there will be cases in which the answer must be that it is not in the interests of the child to subject it to treatment which will cause it increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child \u2019 s, and mankind \u2019 s desire to survive. \u2019","(ix) All these cases are very fact specific, i.e. they depend entirely on the facts of the individual case.","(x) The views and opinions of both the doctors and the parents must be carefully considered. Where, as in this case, the parents spend a great deal of time with their child, their views may have particular value because they know the patient and how he reacts so well; although the court needs to be mindful that the views of any parents may, very understandably, be coloured by their own emotion or sentiment. It is important to stress that the reference is to the views and opinions of the parents. Their own wishes, however understandable in human terms, are wholly irrelevant to consideration of the objective best interests of the child save to the extent in any given case that they may illuminate the quality and value to the child of the child\/parent relationship.\"","( c) An NHS Trust v. MB (A Child represented by CAFCASS as Guardian ad Litem) [2006] 2 FLR 319.","45. In this case, the Supreme Court stated as follows:","\"[22] Hence the focus is on whether it is in the patient \u2019 s best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it.","[39] ...in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.\"","3. Family Procedure Rules 2010","46. Rule 16.2 sets out when a child can be joined as a party in family proceedings, stating:","\u201c(1) The court may make a child a party to proceedings if it considers it is in the best interests of the child to do so\u201d.","47. If the court decides to join a child as a party in family proceedings then a guardian must be appointed to represent them, unless the court is satisfied that it is not necessary to do so to safeguard the interests of the child.","48. The Family Court Practice Direction \u2013 Representation of Children, Part 4, Section 2, sets out the duty of the guardian as follows:","\u201cIt is the duty of a children \u2019 s guardian fairly and competently to conduct proceedings on behalf of the child. The children \u2019 s guardian must have no interest in the proceedings adverse to that of the child and all steps and decisions the children \u2019 s guardian takes in the proceedings must be taken for the benefit of the child\u201d.","49. The Court of Appeal considered the role of the guardian in R & Ors v. Cafcass [2012] EWCA Civ 853, commenting:","\u201c23. No detailed analysis of this statutory regime is necessary. The provisions speak for themselves. All we need say is that the children \u2019 s guardian is on any view pivotal to the whole scheme. The guardian is both the voice of the child and the eyes and ears of the court. As any judge who has ever sat in care cases will be all too aware, the court is at every stage of the process critically dependent upon the guardian. In a jurisdiction where the State is seeking to intervene \u2013 often very drastically \u2013 in family life, the legislature has appropriately recognised that determination of the child \u2019 s best interests cannot be guaranteed if the proceedings involve no more than an adversarial dispute between the local authority and the parents. Parliament has recognised that in this very delicate and difficult area the proper protection and furthering of the child \u2019 s best interests require the child to be represented both by his own solicitor and by a guardian, each bringing to bear their necessary and distinctive professional expertise.\u201d","4. Access to experimental medication","50. All clinical trials to establish whether experimental medical treatment is appropriate and safe for human use need to be approved by the National Health Service Research Ethics Committee. The statutory framework is contained in the Medicines for Human Use (Clinical Trials Regulations) 2004, which transposes the European Clinical Trials Directive (EC\/2001\/20) into domestic law. The General Medical Council, which is the standard setting body for doctors in the United Kingdom, has also published guidelines on \u201cGood practice in research covering clinical trials\u201d.","C. International Law and Practice","1. United Nations","51. Article 3 (1) of the United Nations Convention on the Rights of the Child states:","\u201cIn all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration\u201d.","2. Council of Europe","52. The Council of Europe \u2019 s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (opened to signature at Oviedo on 4 April 1997), contains the following principles regarding consent:","\u201cChapter II \u2013 Consent","Article 6 \u2013 Protection of persons not able to consent","1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.","2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.","The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.","3. Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.","The individual concerned shall as far as possible take part in the authorisation procedure.","4. The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5.","5. The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.","53. According to the Explanatory report to the Convention, Article 6 is intended to be in conformity with the provisions in the United Nations Convention on the Rights of the Child (see paragraph 51). The Guide on the decision-making process regarding medical treatment in end-of-life situations was drawn up by the Committee on Bioethics of the Council of Europe in the course of its work on patients \u2019 rights and with the intention of facilitating the implementation of the principles enshrined in the Oviedo Convention.","3. European Union","54. The European Union \u2019 s Charter of Fundamental Rights, which became legally binding with the entry into force of the Lisbon Treaty on 1 December 2009, contains the following Article:","Article 24 \u2013 The rights of the child","\u201c1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.","2. In all actions relating to children, whether taken by public authorities or private institutions, the child \u2019 s best interests must be a primary consideration.","3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his, or her parents, unless that is contrary to his or her interests.\u201d"],"42":["5.The applicant was born in 1949 and lives in Vyshneve, the Kyiv region.","A.Background","6.The applicant\u2019s son (born in 1972), V.K., had a long history of chronic alcoholism and opium addiction. He also suffered from a number of chronic diseases (see paragraph 51 below).","7.On 13 August 2001 an officer of the Fastiv railway station police, K.M., apprehended him on suspicion of a drugs-related offence.","8.In February 2002 V.K. complained to the prosecution authorities that for more than a year he had been suffering from psychological pressure and physical ill-treatment by the Fastiv railway station police officers. It is not clear whether there was any follow-up to that complaint. The fact that V.K. had raised it was established by the domestic courts during the subsequent criminal proceedings against K.M. The trial court dealing with that case stated in its judgment that it had inspected the documents regarding the above-mentioned events on 27February 2007 (see paragraph 78 below).","9.From 17 June to 1 July 2003 the applicant\u2019s son was treated for opium addiction in the Kyiv regional hospital. There is no information in the case file whether that treatment was successful and in what condition V.K. was discharged from the hospital.","B.V.K.\u2019s disappearance and related events in August 2003","10.On 13 August 2003 V.K. left home and never returned.","11.On 18 August 2003 the applicant reported his disappearance to the Vyshneve town police.","12.On the same date an unidentified unconscious man was found in Vasylkiv, the Kyiv region. He was taken by ambulance to the local hospital with a preliminary diagnosis of \u201cpoisoning by unknown substance\u201d, which was not, however, confirmed by laboratory tests.","13.On 19 August 2003 the man regained consciousness and identified himself as V.K. As subsequently stated by many witnesses, he had no visible injuries at that time. The only available information about V.K.\u2019s treatment is that his condition improved considerably.","14.On 21 August 2003 an official of the Vasylkiv town police informed his counterparts in Vyshneve that the applicant\u2019s son had been found and that he was in hospital. There was no follow-up to the message and it was not passed on to the applicant.","15.On 22 August 2003 V.K. left hospital without authorisation.","16.Shortly after midnight on 25 August 2003 he was found injured and unconscious at Fastiv railway station (further details are provided in paragraph 20 below).","17.After V.K.\u2019s subsequent death (see paragraph 36 below), the domestic authorities tried to establish what had happened to him between the two above-mentioned events. It took them five years to establish some of the facts (see paragraph74 below).","18.In that regard, several people who had been detained in the police unit at Fastiv railway station on the evening of 22 August 2003 stated that they had witnessed the following events. At about 8 p.m. two police officers had brought in an apparently drunk man (subsequently recognised as V.K.) and placed him in a cell. As V.K. had protested loudly against his detention, one of the officers, who already was at the police station when V.K. had arrived (subsequently recognised as K.M. \u2013 see paragraphs 7 and 8 above), had entered his cell and hit him in the face with a rubber truncheon. V.K. had fallen down and his nose had started bleeding. K.M. had then kicked him twice, on the head and torso. The two officers who had apprehended V.K. joined K.M. From that moment the other inmates chose not to watch the beating but heard it going on. At about 6 a.m. on 23 August 2003, after the other detainees had been taken out for various procedural acts, V.K. had remained in the police unit, lying motionless on the floor. By noon that day he was no longer seen there.","19.The time and circumstances of V.K.\u2019s departure from the police unit and his arrival at the railway station have never been established. None of the police unit\u2019s documents contained any information about his detention. The two officers who apprehended him and subsequently participated in his ill-treatment have never been identified.","20.About thirty minutes after midnight on 25 August 2003, supposedly after a telephone call from a passer-by whose identity remained unknown, K.M. called an ambulance for an unidentified, unconscious man (later identified as V.K.) found at the railway station. The incident was not mentioned in the police unit\u2019s log. When the ambulance arrived, K.M., who was waiting for it, made no mention of knowing V.K. or of having any information about him.","21.The applicant\u2019s son was taken to the State-run Fastiv Central Town Hospital (\u201cthe Fastiv Hospital\u201d; see paragraphs 25-36 below).","22.The case file contains fragmentary and contradictory information as to whether the police showed any interest in V.K. thereafter. As stated in a letter from the chief doctor to the applicant of 25January 2005, the nurse on duty had immediately informed the Fastiv town police by telephone about the arrival of a man with injuries. Subsequently, on 13August 2005 there was a confrontation between that nurse and the police officer who had been on duty that day, with the police officer denying any such telephone call. It is not clear in what context the above confrontation was conducted. Furthermore, two nurses stated during questioning in February 2010 (also in an unclear context) that at about 7a.m. on 25August 2003 two police officers had arrived at the hospital to see \u201cthe newly arrived patient with injuries\u201d. Given the considerable lapse of time, the nurses were unable to recognise the officers or give any further details. However, none of the four patients with whom V.K. had shared his ward remembered seeing the police.","23.On 28 August 2003 the applicant, who remained unaware of the whereabouts of her son, once again asked the police to look for him.","24.On the same day the police officer K.O., who was in charge of the search at Vyshneve police, issued a report on questioning Vasylkiv Hospital staff, which said V.K. had been discharged on 22August 2003 in good health. As subsequently established (see paragraph 61 below), K.O. did not in fact talk to the hospital\u2019s staff and forged the report. Relying on that document, he issued a decision refusing to open a criminal case concerning V.K.\u2019s disappearance, which was approved by his superior, A.V. (seeparagraph 62 below).","C.V.K.\u2019s treatment and death in Fastiv Hospital","25.At about 2.35 a.m. on 25 August 2003 the applicant\u2019s son was taken by ambulance to Fastiv Hospital, where he was registered as an unidentified person. He was dirty and his wounds were covered with scabs.","26.He was examined by the admissions doctor, a traumatology doctor and the anaesthesiologist on duty. They diagnosed him as having a closed craniocerebral injury and cerebral contusion and contused wounds to the head. As subsequently stated by numerous doctors in the context of the criminal proceedings against their colleague P.V. (see paragraphs 63-73 below), an X-ray examination of V.K.\u2019s skull was carried out and did not reveal any fractures. However, there were no X-rays in his medical file and none of the hospital\u2019s staff could explain their disappearance.","27.At about 9 a.m. on 25 August 2003 V.K. recovered consciousness, but hardly responded to any attempts of contact. He did not remember who he was. For most of the time his mental state was blurred and he mumbled incomprehensibly.","28.On the same day he was examined by a neuropathologist, who carried out a lumber puncture. It indicated elevated intracranial pressure. The doctor prescribed some drugs for V.K. via intravenous drip, but it appears that he received only glucose, which was administered on 29August 2003 (see paragraph 34 below).","29.It is not clear what medicine was administered to V.K. during his stay in Fastiv Hospital. It appears that he was prescribed anti-edema drugs and two different types of antibiotic. As stated by numerous patients, including those sharing the ward with V.K., all medications were at their own expense. Furthermore, none of the nurses questioned in the course of the criminal proceedings against P. (see paragraphs 63-73 below) was able to say what medication the hospital had had at its disposal to administer to patients free of charge.","30.On 26 August 2003 the traumatology doctor P.V. was appointed to oversee V.K.\u2019s treatment and examined him. On that day and the next the applicant\u2019s son was also examined by the head of the traumatology department and a neuropathologist.","31.On 28 August 2003, following a serious deterioration in V.K.\u2019s condition, a panel of six of the hospital\u2019s doctors examined him and it was decided to consult a neurosurgeon.","32.A neurosurgeon from Kyiv Regional Clinical Hospital examined V.K. that evening and stated that he needed a computerised brain tomography scan for a proper diagnosis. As there was no such machine at Fastiv Hospital he needed to be transferred to the regional hospital.","33.However, for unknown reasons that recommendation was not followed. P.V. stated in the course of his trial (see paragraphs 63-73 below) that, firstly, he had considered V.K. to be too ill to be moved and, secondly, that it had been impossible to overcome all the administrative formalities needed to obtain the required vehicle, for which he blamed his superiors.","34.On 29August 2003 V.K. was given an intravenous infusion of glucose and his condition improved slightly. That was the only intravenous infusion carried out.","35.On 2 September 2003 V.K. slipped into a coma. Although the change in his condition was brought to their attention, the medical staff did not react. V.K. was not examined by his doctor or any other specialist. He was kept in the same ward in the traumatology department and no resuscitation measures were undertaken.","36.He died at 6.20 p.m. on 3 September 2003.","D.Investigation into the death of the applicant\u2019s son and related events","37.On 4 September 2003 a forensic medical expert, G.S., conducted an autopsy of V.K. (documented as an unidentified person) and issued a preliminary death certificate. He stated that V.K. had died of toxic hypoxic encephalopathy (a brain dysfunction caused by oxygen deprivation resulting from toxic exposure) complicated by swelling of the brain on a background of proliferative leptomeningitis (inflammation of the tissues surrounding the brain), pericarditis (inflammation of the sac surrounding the heart), and chronic hepatitis. The expert also reported some minor injuries but stated that they had had nothing to do with his death. He did not mention the numerous tattoos on V.K.\u2019s body (see also paragraph 48 below).","38.On 5 September 2003 the chief doctor at Fastiv Hospital wrote a letter to the Fastiv town police informing them that an unidentified man with head injuries had been brought to the hospital on 25August 2003 and that he had died on 3 September 2003. The hospital\u2019s administration therefore requested that the police identify that person.","39.On 9 September 2003 the applicant found out about her son\u2019s death from unspecified sources and immediately went to the Fastiv police. However, V.K. had already been buried in Fastiv as an unidentified person earlier that day. The applicant identified him from photographs of his body. According to her, \u201che was all dirty, shaggy, wizened, and his hair was covered with dried blood\u201d.","40.On 12 September 2003, at the applicant\u2019s wish, the body was reburied in Vyshneve. She had the coffin opened so she could see her son. According to her, his body bore signs of torture. She submitted, in particular, that there were numerous injuries, including handcuff marks on his wrists and traces of electrical burns between the fingers. The applicant also alleged that one of her son\u2019s tattoos appeared to have been \u201cburnt off\u201d. It appears that she complained to the prosecution authorities about the above matters.","41.On 10 October 2003 G.S. issued a post-mortem examination report reiterating his earlier findings (see paragraph 37 above).","42.On the same date the Prosecutor General\u2019s Office (\u201cthe PGO\u201d) opened a criminal case in respect of the suspected murder of V.K., however, no suspects were identified. That case was subsequently joined to and eventually severed from numerous other related criminal proceedings (see the sections below).","43.On 29 October 2003 G.S. issued a forensic examination report with similar conclusions as before. He also stated that V.K.\u2019s medical condition had been caused by lengthy alcohol and drug intoxication. As regards his injuries, they were insignificant and might have resulted from his falling on a hard surface.","44.On 30 October 2003 the applicant took her son\u2019s clothes and shoes from Fastiv Hospital and handed them over to the prosecution (the exact name of the authority is not legible in the copy of the document concerned). The clothes were covered with stains which looked like blood and the shoes had no laces. Given that removing the shoelaces of detainees was a well-known police practice, the applicant suspected that her son had been detained and asked the authorities to investigate that possibility.","45.Forensic immunological examinations of the clothes and shoes, which were carried out on 5 December 2003 and 1 July 2005, established, respectively, that the stains were blood and that it could have been V.K.\u2019s.","46.The investigation was entrusted to various prosecution and law\u2011enforcement authorities at different times: the town prosecutor\u2019s offices in Fastiv, Vasylkiv and Bila Tserkva, the Kyiv Regional Prosecutor\u2019s Office and the PGO. It was discontinued and resumed on many occasions. Overall, from 2003 to 2016 the investigator in charge of the case was changed at least twenty times.","47.On 15 October 2004 V.K.\u2019s body was exhumed on the PGO\u2019s order.","48.On 15 November 2004 a forensic medical expert (S.A.) completed a report after examining the body. He documented the following injuries: a fracture of the nose, three wounds on the right side of the head, an unspecified number of haematomas in the soft tissues under the scalp and on the face, and three haematomas under the pericranium. All the injuries had been inflicted by blunt objects, possibly by hands and\/or feet, without further specification being possible. The report also noted large tattoos on the arms and shoulders.","49.According to the applicant, the forensic examination also found that the left kidney, the suprarenal glands and the pancreatic gland were missing from her son\u2019s body. The expert report stated in that regard:","\u201cIn the place where the left kidney should be is a greyish-brown mass resembling a kidney in texture. [...] It has not been possible to identify secretions from the suprarenal glands or the pancreatic gland.\u201d","50.The mass resembling a kidney was taken for a forensic histological analysis, which did not discover anything of note. S.A. was asked during G.S.\u2019s subsequent trial whether any organs were missing from the body and he replied in the negative.","51.Between 2004 and 2009 numerous forensic medical examinations were carried out on the basis of the material in the case file (at least six). They found that although, as established by the forensic histological examinations, V.K. had been suffering from various diseases (namely chronic leptomeningitis, chronic encephalopathy, granular myocardial dystrophy, interstitial hepatitis with the first signs of cirrhosis, granular kidney degeneration, diffuse proliferative nephritis and chronic bronchitis), none of them, either taken separately or together, could have caused his death. It was eventually established that the direct cause of death had been swelling of the brain and meninx, which had blocked the circulation of blood in the brain. Only a computerised brain tomography could have diagnosed that condition while V.K. was still alive, but that had not been done. The experts held that the fatal brain injuries could have resulted from him being beaten. It was stated in that connection that he had sustained at least eight blows to the head from blunt objects (possibly a rubber truncheon, fists and\/or feet). At the same time, it was impossible to establish precisely the nature and scope of all the injuries to V.K.\u2019s head given the omissions and deficiencies of the post-mortem examination. Details of additional forensic medical examinations, carried out in 2010 and 2012, are provided in paragraphs 65-66 and 81 below.","52.On 21 December 2008 the investigator in charge of the case inspected V.K.\u2019s cell at Fastiv railway station police unit and took several samples from the walls and floor (see paragraph 75 below for the context of that investigative measure). A number of forensic immunological examinations were carried out in 2008, 2009 and 2010. They found that the samples contained traces of blood, which could have come from the applicant\u2019s son.","53.On 6 December 2012 an investigator at Bila Tserkva City Prosecutor\u2019s Office (it is not known when and in what circumstances the investigation had been handed over to that authority) made an entry in the Unified Register of Pre-Trial Investigations regarding an investigation into abuse of office by two unidentified police officers on account of V.K.\u2019s ill\u2011treatment on 22 August 2003. Such an entry was a new procedure for initiating a pre-trial investigation under the new Code of Criminal Procedure, which had come into effect on 19 November 2012. The case was transferred to the Kyiv Regional Prosecutor\u2019s Office on 10 September 2013.","54.There is no information in the case file about further developments in the investigation. According to the Government\u2019s observations, it was still ongoing as of September 2016.","E.Criminal proceedings against G.S. (the forensic medical expert whoconducted the autopsy)","55.On 7 April 2005 the PGO opened a criminal case against the forensic medical expert G.S. on suspicion of negligence. Further charges were subsequently brought against him (see below).","56.On 5 May 2010 the Kyyevo-Svyatoshynskyy District Court (\u201ctheKyyevo-Svyatoshynskyy Court\u201d) found G.S. guilty of abuse of office and forgery in office leading to grave consequences and of delivering a knowingly false expert conclusion. More specifically, the trial court held that the expert had knowingly given false data on the cause of V.K.\u2019s death, had failed both to collect all the requisite tissue samples and to carry out a number of essential analyses. However, it acquitted G.S. of concealing a serious crime. He was also exempted from punishment for forgery and a false expert conclusion as those charges had become time-barred. He was sentenced on the charge of abuse of office to three years and six months\u2019 imprisonment and a three-year ban on holding expert positions. The Kyyevo-Svyatoshynskyy Court allowed a civil claim by the applicant in part. It awarded her 1,851 Ukrainian hryvnyas (UAH; at the time equivalent to 175 euros (EUR)) in respect of pecuniary damage and UAH10,000 (about EUR 950) in respect of non-pecuniary damage, to be paid by G.S. In addition, the applicant was awarded UAH50,000 (aboutEUR 4,700) in respect of non-pecuniary damage, to be paid by the Kyiv Regional Bureau of Forensic Medical Examinations.","57.On 18 August 2010 the Kyiv Regional Court of Appeal (\u201cthe Regional Court of Appeal\u201d) allowed an appeal by G.S., quashed the first\u2011instance court\u2019s judgment in the part which convicted him of making a knowingly false expert conclusion and discontinued proceedings on that charge, because there were no constituent elements of an offence in his actions. The appellate court also reclassified the remaining charges. Instead of abuse of office and forgery in office leading to grave consequences, he was found guilty of professional negligence with grave consequences and was sentenced to three years\u2019 imprisonment and a ban on holding expert positions for three years. As that new charge had become time-barred, the Regional Court of Appeal absolved him from the penalty. The judgment upheld the applicant\u2019s civil claim.","58.On 18 October 2010 the Supreme Court rejected a prosecution request for leave to appeal on points of law.","59.On 28 October 2010 G.S. paid the amount due to the applicant.","60.According to the applicant, she has never received any money from the Kyiv Regional Bureau of Forensic Medical Examinations.","F.Criminal proceedings against the Vyshneve police officials","61.Following numerous complaints by the applicant about the inadequacy of Vyshneve police\u2019s search for her son in August 2003, on 16April 2007 the PGO opened a criminal case against officer K.O., who had been in charge of the search. Courts at two levels of jurisdiction (the Kyyevo-Svyatoshynskyy Court on 9 July 2012 and the Regional Court of Appeal on 9 April 2014) found him guilty of abuse of office with grave consequences and of forgery in office (see paragraph 24 above). They sentenced him to five years\u2019 imprisonment and a prohibition on holding positions related to the performance of public duties for two years. He was, however, exempted from serving the sentence given the expiry of the statutory limitation period. The decision became final as there were no appeals on points of law.","62.The applicant also unsuccessfully sought the prosecution of A.V., K.O.\u2019s supervisor.","G.Criminal proceedings against P.V. (the doctor in charge of V.K.\u2019s treatment at Fastiv Hospital)","63.On unspecified dates the prosecution authorities refused to institute criminal proceedings in respect of V.K.\u2019s death against the chief doctor, the head of the traumatology department, the anaesthesiologist and the neuropathologist at Fastiv Hospital. The case file does not contain any further information or documents in that regard. Nor is there any information as to whether there were any disciplinary proceedings.","64.On 24 October 2007 the PGO opened a criminal case against P.V., the traumatology doctor at the hospital, on suspicion of failure to provide V.K. with the requisite medical care, which had led to the latter\u2019s death.","65.On 14 September 2010 the investigator ordered a forensic examination of the case file by a panel of experts with a view to assessing the care provided to V.K. at Fastiv Hospital. The panel had to answer thirty specific questions, including the following:","(a) Were there any legal standards for the treatment of craniocerebral injuries and, if so, had they been complied with in V.K.\u2019s case?","(b) Was the neurosurgeon\u2019s recommendation to undertake a computerised brain tomography binding on P.V.?","(c) How had the failure to carry out the computerised brain tomography influenced the quality of the medical care provided to V.K. and his health condition?","(d) Would a timely computerised brain tomography have helped to detect the pathological developments that caused V.K.\u2019s death? If so, would a timely medical response have made it possible to prevent them?","(e) Had it been feasible to transport V.K. to the better equipped Kyiv Regional Hospital given the state of his health?","(f) Were there any legal standards for such transportation?","(g) Were any resuscitation measures carried out once V.K. had gone into a coma?","(h) Did his coma result from low blood sugar?","(i) Was V.K. so ill when he had arrived at Fastiv Hospital that he had been bound to die, regardless of any medical care?","66.The experts issued their report on 28 January 2011. It stated that there had been no legal standards for treating craniocerebral injuries until 13June 2008. However, according to general practice, treatment was to consist of sedatives and pain relief; treatment of symptoms; an initial surgical debridement of wounds; anti-inflammatories, and, if required, hormonal, dehydrating, anti-edemic, antioxidant and nootropic treatment. The experts noted that the drugs prescribed for the applicant\u2019s son (seeparagraph 29 above) appeared to correspond to that practice. The report also observed that there were no regulations that had obliged P.V. to comply with the neurosurgeon\u2019s recommendation. Atimely computerised brain tomography would have helped to clarify the nature and scope of V.K.\u2019s craniocerebral injuries, which, in turn, would have led to the right treatment. Accordingly, the failure to carry out that diagnostic measure had impaired the quality of the medical care given to V.K. and had contributed to aggravating his condition. Transporting him had been necessary and possible using a special intensive care vehicle, which the hospital had had at its disposal. In the absence of any relevant legal standards, questions concerning the transportation of patients were at the discretion of the doctor treating the patient and the hospital\u2019s administration. The panel of experts further noted that V.K.\u2019s medical file made no mention of resuscitation measures. As regards the cause of V.K.\u2019s coma, there appeared to be no conclusive evidence that it had been due to low blood sugar. At the same time, the experts noted that given V.K.\u2019s inability to eat and drink on his own it was probable his sugar level had dropped. Furthermore, they observed that although his condition had warranted regular infusions of glucose under the supervision of an endocrinologist, there had been only one such intravenous infusion, on 29 August 2003. Lastly, the report stated that there was no indication of an inevitable fatal outcome for V.K., regardless of any medical assistance.","67.In March 2011 the investigation was completed and the case was sent for trial.","68.On 19 September 2013 the Vasylkiv Town Court remitted the case for additional investigation. However, on 6 February 2014 the Kyiv City Court of Appeal quashed that ruling.","69.On 29 July 2014 the Kyyevo-Svyatoshynskyy Court (to which the case had been transferred at the applicant\u2019s request) found P.V. guilty of a failure to provide the applicant\u2019s son with the requisite medical care, which had led to grave consequences. The court held, in particular, that P.V., without any good reason, had failed to make sure V.K. was transferred to the regional hospital for a computer brain tomography, which had seriously undermined the effectiveness of his treatment. Furthermore, it was concluded that P.V. had failed to take even the minimum measures in response to V.K.\u2019s coma on 2 and 3 September 2003. The court sentenced him to three years\u2019 imprisonment, but released him from serving the sentence as the limitation period for that type of offence had expired. Furthermore, the court allowed a civil clam by the applicant in part and awarded her UAH100,000 (at the time equivalent to about EUR 6,100) in respect of non-pecuniary damage, to be paid jointly by P.V., the Fastiv District State Administration and Fastiv Hospital.","70.On 5 November 2014 the Regional Court of Appeal upheld that judgment. The only amendment it ordered was to make Fastiv Hospital solely responsible for paying the applicant.","71.As there was no appeal on points of law the judgment became final.","72.The Government submitted an information note from the unified register of enforcement proceedings along with their observations. It stated that the bailiffs service had on 23 January 2015 terminated enforcement of the above judgment at the applicant\u2019s request.","73.Without commenting on that document, the applicant submitted that as of 1 August 2016 she had not received any payment from Fastiv Hospital.","H.Criminal proceedings against K.M. (one of the police officers who ill-treated the applicant\u2019s son)","74.On 19 November 2008 the investigator questioned several persons, who had been detained at the Fastiv railway station police unit on the evening of 22 August 2003. They submitted that they had witnessed the ill\u2011treatment of another inmate (see paragraph 18 above).","75.On 8 December 2008 a former detainee, S.P., recognised K.M. as one of the police officers who had beaten V.K. On various dates thereafter several other former detainees made similar statements.","76.On 26 December 2008 the PGO detained K.M.","77.Subsequently, several criminal cases were opened against him on suspicion of abuse of office by a law-enforcement official with grave consequences, the exceeding of authority associated with ill-treatment of the victim, also with grave consequences, and infliction of grievous bodily harm leading to the death of the victim. K.M. consistently denied being present at the police unit on the evening on 22August 2003, let alone having beaten V.K.","78.On 7 September 2011 the Bila Tserkva City Court found K.M. guilty of abuse of office by a law-enforcement official with grave consequences, and exceeding his authority associated with ill-treatment of the victim, also with grave consequences. The court acquitted him in respect of the charge of inflicting grievous bodily harm leading to the victim\u2019s death. It sentenced him to six years\u2019 imprisonment and a prohibition on holding positions related to public duties for three years. It also ordered the confiscation of his property. The court noted that the applicant had lodged a civil claim, however, it left it without examination on the grounds that there were a number of related criminal proceedings still ongoing and that she could later bring a civil claim under the civil procedure.","79.On 7 December 2011 the Regional Court of Appeal quashed K.M.\u2019s acquittal and remitted that part of the case for additional investigation. It upheld the rest of the judgment.","80.On 7 March 2012 S.P. took part in a reconstruction of the events of 22 August 2003 (see paragraph 75 above).","81.On 12 March 2012 the investigator ordered a forensic medical examination to verify S.P.\u2019s account. Furthermore, the expert was to establish the cause of V.K.\u2019s death and the existence of any cause and effect between the death and his being beaten by K.M. The report was issued on 21March 2012 and stated that the injuries sustained by V.K., as documented by the earlier forensic examination reports, could have been inflicted in the manner and in the circumstances described by S.P. As regards the cause of death, the panel referred to its earlier findings and stated that V.K. could have died of the brain and meninx injuries (seeparagraph 51 above). Lastly, they concluded that the injuries could have resulted from K.M.\u2019s assault on V.K., as described by S.P.","82.On 30 October 2012 the Higher Specialised Court for Civil and Criminal Matters upheld the lower courts\u2019 decisions of 7 September and 7December 2011 (see paragraphs 78 and 79 above).","83.K.M. was released on parole on 2 November 2012.","84.However, on 15 November 2012 he was remanded in custody as a preventive measure pending his trial on the remaining charge (see paragraph 79 above).","85.On 12 August 2013 the Kyyevo-Svyatoshynskyy Court found K.M. guilty of inflicting grievous bodily harm on V.K., which had led to the victim\u2019s death, and sentenced him to ten years\u2019 imprisonment. The court saw no aggravating or mitigating circumstances in the case. At the same time, the case file material referred to in the judgment included the testimony of two witnesses who stated that K.M. was prone to violence. One of them, Vo., a retired teacher, stated that he had been arbitrarily detained in December 2003 and that K.M. had punched him in the face and used a pepper spray on him when he had complained. Being scared, Vo. had written a statement that he had no complaints against the police. Another witness, M., submitted that she had been in a caf\u00e9 in October 2005 when K.M., clearly drunk, had passed by her and pushed her. She was pregnant and had told him his behaviour was unacceptable. K.M. had reacted by punching her in the face. Later, in the presence of the police, he had hit her again and she had fallen to the ground. Both K.M. and his superior had subsequently apologised to her and asked her not to lodge a complaint so she had not.","86.On 27 November 2013 the Regional Court of Appeal quashed the first-instance court\u2019s judgment and discontinued the proceedings in that part as time-barred. The appellate court noted that the statutory ten-year limitation period had not been interrupted as K.M. had not absconded or committed other criminal offences. K.M.was released in the courtroom.","87.The applicant appealed on points of law. She submitted, inparticular, that K.M. had for many years concealed the truth about both knowing V.K. and ill-treating him. Accordingly, the applicant contended that he had been seeking to evade justice.","88.On 21 August 2014 the Higher Specialised Court for Civil and Criminal Matters upheld the appellate court\u2019s ruling.","I.Criminal proceedings against G.V. (the officer on duty at the Fastiv railway station police unit on 22 August 2003)","89.On 9 August 2012 the Baryshivka Town Prosecutor\u2019s Office (in the Kyiv region) opened a criminal case against G.V., who had not stopped his colleague K.M. from beating the applicant\u2019s son.","90.During the pre-trial investigation and the trial G.V. consistently denied that either V.K. or K.M. had been present at the police unit on 22August 2003.","91.On 14 October 2013 the Kyyevo-Svyatoshynskyy Court found G.V. guilty of negligence with grave consequences and of concealing a criminal offence. It sentenced him to five years\u2019 imprisonment and a prohibition on holding any office related to the performance of public duties for three years. G.V. was absolved from the penalty as the charges had become time\u2011barred. A civil claim by the applicant was allowed in part. The court ordered G.V. to pay her UAH80,000 (equal to about EUR 7,100 at the time) in compensation for non-pecuniary damage.","92.On 10 December 2013 the Regional Court of Appeal upheld the first-instance court\u2019s judgment, increasing the compensation to UAH100,000 (about EUR 8,800).","93.There was no appeal on points of law against those decisions.","94.The applicant states that as of 1 August 2016 she has received no payment."],"43":["THE CIRCUMSTANCES OF THE CASE","4.The applicants were born in 1981 and 2006 respectively and live in Moscow. The first applicant is the second applicant\u2019s father.","A.Transactions with the flat later inherited by the first applicant","5.Prior to its privatisation, the flat at 4-1-25, 12-ya Novokuzminskaya Ulitsa, Moscow, had been owned by the City of Moscow. Spouses V.F. and G.F resided there under the social housing agreement with the City.","6.On an unspecified date V.F. applied for the privatisation of the flat. His wife chose not to participate in the transaction. On 22August 2002 V.F. and the Housing Department signed a privatisation agreement.","7.On 14May 2004 V.F. sold the flat to L.M., the first applicant\u2019s mother. According to the text of the sale contract, L.M. paid RUB300,000 to V.F. for the flat. According to the applicants, in reality, L.M. had paid RUB2,500,000.","8.On 28September 2006 L.M. died. The first applicant inherited the flat after her death. His family, including the second applicant, moved in and resided there. According to the official documents, V.F. did not move out and also continued to reside in the flat. According to the applicants, V.F. moved to the suburbs, but they let him keep the flat registered as his place of residence so that he could continue to receive social benefits in Moscow.","9.On 10July 2007 the first applicant transferred the title to half of the flat to his sister by way of gift.","B.Annulment of the first applicant\u2019s title to the flat","10.On 22April 2011 V.F. lodged a complaint with law enforcement authorities. He alleged that he had not sold the flat to his relative L.M. and that he had not received any money from her. He had continued to live in the flat and had let the first applicant move into the flat temporarily in view of the problems the latter had been having with his wife. In May 2010 V.F. and the first applicant had had a fight and V.F. had asked the first applicant to move out. The first applicant had refused claiming to be the owner of the flat. He had kicked V.F. out of the flat. After that V.F. had been able to have access to the flat only with the support of the police or the neighbours.","11.On 5July 2011 the prosecutor, acting in the interests of V.F., brought a civil action seeking the annulment of the first applicant\u2019s title to the flat and eviction of his family.","12.On 15November 2012 the Kuzminskiy District Court of Moscow granted the claims in full. The court established that, at the time of the privatisation and sale of flat, V.F. had not been able to understand his actions or control them. It relied on the forensic experts\u2019 findings that \u201cV.F. suffered from organic personality syndrome and vascular dementia which had developed long before he had applied for privatisation of the flat on 22August 2002 and sale of the flat on 14May 2004. [His condition] had prevented him from understanding his actions or controlling them.\u201d The court invalidated all the transactions with the flat and transferred it to the ownership of the City of Moscow. Lastly, the court ordered the applicants\u2019 eviction.","13.On 29April 2013 the District Court issued a supplementary judgment refusing to apply the statute of limitations to the prosecutor\u2019s claims in V.F.\u2019s interest.","14.On 12November 2013 the Moscow City Court upheld the judgments of 15November 2012 and 29April 2013 on appeal.","15.On 13March 2014 the City Court rejected the applicants\u2019 cassation appeal.","C.Eviction proceedings","16.On 27November 2013 the District Court issued a writ of enforcement in respect of the judgment of 15November 2012 indicating V.F. as the beneficiary.","17.On 3December 2013 the bailiff instituted enforcement proceedings.","18.On 30January 2014 the applicants were evicted. According to the eviction report prepared by the bailiff, V.F. received the keys to the flat and could reside there.","19.On 16April 2014 the Housing Department signed a social housing agreement with V.F. and on 20November 2014 the title to the flat was transferred to V.F. under the privatisation scheme."],"44":["5.The applicant was born in 1960 and lives in Budapest.","6.The applicant was placed in retirement on grounds of disability and received a disability pension as of 1 November 2006, the amount of which was 91,363 Hungarian forints (HUF) (approximately 305 euros (EUR)) per month. The entitlement was based on a final decision of the Supreme Court. At the material time the medical board rated her state of health at 46 per cent.","7.The methodology for disability assessment changed as of 1 January 2008.","8.Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity was enacted on 29 December 2011 and entered into force as of 1January 2012. It introduced a new system of allowances and beneficiaries of the old scheme were invited to re-apply under the new rules.","9.The applicant lodged a fresh application for disability allowance under the new law.","Pending approval of her new application, she continued to receive a monthly disability allowance in the amount of HUF 89,925 (approximately EUR 300) on the strength of the fact that on the day the new law entered into force, she had been in receipt of a disability benefit.","10.On 29 June 2012 the National Rehabilitation and Social Authority assessed the applicant\u2019s state of health at 59 per cent. She was categorised as a person suitable for rehabilitation on the basis of that assessment. However, owing to the applicant\u2019s other circumstances, her rehabilitation was not recommended.","11.In application of the relevant rules, the applicant\u2019s rehabilitation allowance was established at 45 per cent of the minimum wage, that is, in the amount of HUF 41,850 (approximately EUR 140), by a decision of the Budapest Governmental Office (Directorate of Pension Insurance) given on 19September 2012 and effective as of 1 December 2012.","12.The applicant appealed.","13.A medical assessment carried out in the course of the second-instance administrative proceedings resulted in the finding that the applicant\u2019s state of health was at 58 per cent. It was reaffirmed that her rehabilitation was not recommended. Since the minor difference in the scores did not alter the calculation of the allowance, the National Rehabilitation and Social Authority upheld the first-instance decision on 17January 2013.","14.The applicant sought a judicial review.","15.On 23 February 2016 the Budapest Administrative and Labour Court dismissed her action. Having obtained fresh medical assessments and the opinion of the national forensic body, the court was satisfied that the applicant\u2019s state of health was at 54 per cent (her locomotor, digestive and endocrinological conditions were calculated cumulatively as per the method prescribed in Annex 1 to Decree no. 7\/2012 (II. 14.) NEFMI).","Again, the minor difference in the scores had no bearing on the calculation of the allowance. The court upheld the administrative decisions.","16.On 12 September 2016 the K\u00faria dismissed the applicant\u2019s petition for review. It observed in particular that the lower courts had found that the applicant\u2019s state of health (for the purposes of the application of rules of disability benefits) had improved and that the applicant had challenged that finding. It pointed out that such an improvement did not necessarily correspond to actual healing from a condition, but could also result from a change in, or stricter application of, the relevant rules of medical assessment.","17.The applicant submitted that, as of August 2015, she no longer received any benefits. The legal or factual circumstances underlying this state of affairs are not known."],"45":["1. The applicant, Ms Raisa \u0160arkien\u0117, is a Lithuanian national who was born in 1956 and lives in Vilnius. She had been granted legal aid and was represented before the Court by Mr R. Burda, a lawyer practising in Vilnius. The Lithuanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms K. Bubnyt\u0117.","A. The circumstances of the case","1. Pre-trial investigation","2. On 6 May 2008 the applicant, together with her friend A. and A. \u2019 s minor son L., attended a recording of the weekly television show \u201cCelebrity Duets\u201d ( \u017dvaig\u017ed\u017ei\u0173 duetai ). The show was a singing competition in which celebrity duets were assessed by a three-member judging panel. The head judge was a well-known opera singer, V.J. The panel also included another musician, D.K.","3. That evening after the show, V.J. received a message on his personal mobile telephone with the following text:","\u201cI want to tell you this right now! You didn \u2019 t have problems \u2013 you will now! We have warned you!!! Don \u2019 t you think that you live and have protection, moron! I repeat, this is your last warning! I \u2019 ll give you time to enjoy your life, if you want to have a family and not coffins, this is not a joke, Mr Soloist! Godmother!!! We have warned you! We are watching you! Good luck. Until the next time, if you \u2019 re still alive.\u201d","(\u201cStaigiai noriu pasakyti! netur\u0117jot problemu ju bus! mes gi jus ispejom!!! ar jums neatrodo, kad gyvenat, apsauga turi glusai! kartoju paskutinis buvo ispejimas! duodu laiko dziaugtis gyvenimu jei nori tureti seima o ne karstus cia nejuokai ponas soliste! kriksto mama!!! perspejom! mes jus stebim! sekmes. iki kito karto jei gyvas dar busit.\u201d)","4. V.J. informed the police that he had been threatened and the police opened a pre-trial investigation. It was discovered that the mobile telephone from which the message had been sent belonged to L. (see paragraph 2 above). On an unspecified date his mother A. was questioned as a witness and stated that L. had lost his mobile telephone sometime around 6 May 2008.","5. On 22 May 2008 the applicant was questioned as a witness. She stated that she had attended several recordings of \u201cCelebrity Duets\u201d but could not remember the exact dates. She confirmed that she had gone there once with A. and L. and that L. had had a mobile telephone with him, but the applicant had not paid attention to where L. had left it. She stated that she had not taken the telephone or sent any text messages from it. The applicant also said that she had heard from A. that a text message had been sent to V.J. from L. \u2019 s telephone; however, the applicant stated that she did not have V.J. \u2019 s telephone number and had never called or texted him.","6. On an unspecified later date L. \u2019 s telephone was found in the possession of another individual, V. He told the police that the telephone had been given to him by the applicant, who was his friend.","7. On 10 July 2008 the applicant was taken to a police station and served with an official notice ( prane\u0161imas apie \u012ftarim\u0105 ) stating that she was suspected of threatening to kill or seriously injure V.J., under Article 145 \u00a7 1 of the Criminal Code (see paragraph 21 below). The notice listed the suspect \u2019 s rights under the Code of Criminal Procedure, including the right to a lawyer. The applicant signed the notice to confirm that she had received it and that her rights had been explained to her. She also signed another notice which reiterated her right to a lawyer ( teis\u0117s tur\u0117ti gyn\u0117j\u0105 i\u0161ai\u0161kinimo protokolas ), on which she wrote that she did not need a lawyer during questioning. She also signed a notice confirming her decision to refuse a lawyer ( protokolas d\u0117l gyn\u0117jo atsisakymo ), on which she also wrote that she did not need a lawyer during questioning. The latter notice indicated that the refusal did not prevent the applicant from requesting a lawyer at any later stage in the proceedings (see Relevant domestic law in paragraph 20 below).","8. On the same day the applicant was questioned by the police and confessed to having sent the aforementioned text message to V.J. She stated that she was a fan of the singer R., a participant in \u201cCelebrity Duets\u201d. On 6 May 2008 V.J., as the head judge, had given negative feedback about R. \u2019 s performance. The applicant claimed that she had felt insulted and upset by V.J. \u2019 s comments, so she had taken an unknown mobile telephone from her table and sent him the text message. She had known V.J. \u2019 s telephone number from before, although she could not remember how she had obtained it. The applicant stated that she had not known whose mobile telephone it had been, but she had put it in her purse and forgotten about it until much later, when she had found it again and given it to her friend V. She also said that she had thrown away the SIM card at some point. The applicant stated that during her previous questioning she had given a different statement because she had understood that she had done wrong and had been scared to admit it. She was sorry for the incident and wanted to apologise to V.J.","The applicant also provided a handwritten confession in which she reiterated the essential details of her statement.","9. On 20 August 2008 the applicant was served with a revised notice stating that she was suspected of threatening to kill or seriously injure V.J., under Article 145 \u00a7 1 of the Criminal Code. She requested a lawyer and the police called for a State-appointed lawyer to represent her. She was then questioned in the presence of that lawyer. The applicant withdrew the statement and confession she had given on 10 July 2008 (see paragraph 8 above), stating that she had confessed because of \u201cthe instructions and persuasion of [police] officers\u201d ( pareig\u016bn\u0173 nurodymu ir \u012fkalbin\u0117jimais ). She stated that the statement she had given on 22 May 2008 was the correct one (see paragraph 5 above) and that she would give further evidence at trial.","10. On 9 September 2008 the applicant was charged with threatening to kill or seriously injure V.J., under Article 145 \u00a7 1 of the Criminal Code. The case was transferred to the Vilnius City First District Court for examination on the merits.","2. Court proceedings","11. The applicant was represented by a State-appointed lawyer at all levels of court.","12. On 15 January 2009 the Vilnius City First District Court held an oral hearing. When questioned by the court, the applicant denied having sent the text message to V.J. She stated that she was a fan of the singer R. and that on 6 May 2008 she and her friend A. had been invited to attend the recording of \u201cCelebrity Duets\u201d by D.K., another member of the judging panel on the show (see paragraph 2 above). The applicant stated that A. \u2019 s son L. had had a mobile telephone, which at one point he had left on the table where she and A. had been sitting. The applicant stated that she had not touched the telephone, but an unknown man had approached them and asked to use a telephone; they had allowed him to use L. \u2019 s telephone and the man had written a text message on it. The applicant submitted that she had later taken L. \u2019 s telephone from A. and given it to V., because she and A. had thought that L. might have sent the text message to V.J. The applicant further stated that on 10 July 2008 (see paragraph 8 above) she had confessed because police officers had threatened her. She submitted that her statement of 22 May 2008 (see paragraph 5 above) was correct, with the clarification that L. \u2019 s telephone had been used by the unknown man.","13. The court heard evidence from several other witnesses. The applicant \u2019 s friend A. essentially corroborated the applicant \u2019 s statements (see paragraph 12 above). The applicant \u2019 s friend V. repeated that the applicant had given him L. \u2019 s telephone sometime back in May 2008 (see paragraph 6 above). The musician and member of the judging panel D.K. stated that he knew A. because she was his dentist and that he had seen the applicant in A. \u2019 s office a few times. He stated that A. had previously asked him to give better scores to the singer R. and that he had passed that request on to V.J., although the latter could not be persuaded. D.K. believed that A. and R. were friends, also stating that he had once seen R. with the applicant.","14. The court also heard evidence from three police officers who had been present at different stages of the applicant \u2019 s questioning. They stated that the applicant had been duly informed of her rights, including the right to a lawyer, but that she had not requested one until 20 August 2008 (see paragraphs 7 and 9 above). The officers denied having put any pressure on the applicant to confess or to give any particular evidence.","15. On 17 April 2009 the Vilnius City First District Court found the applicant guilty of threatening to kill or seriously injure V.J., under Article 145 \u00a7 1 of the Criminal Code. The court noted that during the pre \u2011 trial investigation and trial the applicant had changed her version of events several times, and that her latest version including an unknown man could not be confirmed \u201cby any evidence\u201d ( byloje n\u0117ra joki\u0173 \u012frodym\u0173 apie tokios situacijos buvim\u0105 ). The court considered that there were no grounds for doubting the accuracy of her confession (see paragraph 8 above) because her claims of pressure by police officers had not been proven.","The applicant was ordered to stay at home from 10 p.m. to 6 a.m. for six months and to find a job or register at an employment office. The court also awarded V.J. 10,000 Lithuanian litai (LTL, approximately 2,900 euros (EUR)) in non-pecuniary damages.","16. The applicant appealed against the judgment, arguing that she had not committed the criminal offence and that the text message had been sent by an unknown man (see paragraph 12 above). However, on 22 July 2009 the Vilnius Regional Court dismissed her appeal and upheld the conviction. The court referred, in particular, to D.K. \u2019 s testimony concerning the connection between the singer R. and the applicant \u2019 s friend A., and emphasised the fact that the mobile telephone had been disabled immediately after the message had been sent \u2013 it considered that these circumstances demonstrated a direct intent to threaten V.J. after the recording of the show. The court also held that witness testimony and other material in the case file sufficiently proved the applicant \u2019 s guilt. However, it reduced the amount of non-pecuniary damages to LTL 5,000 (approximately EUR 1,450), having regard to the nature of the criminal offence and the applicant \u2019 s financial situation.","The Vilnius Regional Court did not address the question of whether the applicant had been pressured by police officers to refuse a lawyer and to confess; it appears from the judgment that the applicant did not raise that question in her appeal.","17. The applicant submitted an appeal on points of law to the Supreme Court, in which she alleged, inter alia, that her defence rights had been violated. On 9 December 2009 she was informed that the court would examine her appeal on 18 January 2010 and would pronounce its judgment on 2 February 2010.","18. On that date the Supreme Court dismissed the applicant \u2019 s appeal on points of law. In respect of her complaint concerning her defence rights, the court noted that the case file contained written documents with the applicant \u2019 s signatures, which had been drawn up in line with the relevant domestic law (see paragraph 20 below). This showed that the applicant had been informed of her right to a lawyer and had decided not to exercise it. The court also noted that the applicant had availed herself of her right to a lawyer during questioning on 20 August 2008 and at all subsequent stages of court proceedings (see paragraphs 9 and 11 above). Accordingly, it considered that there were no grounds for finding that the applicant \u2019 s right to a lawyer had been restricted at any point.","The applicant did not attend the pronouncement of the judgment. She submitted that she had received a copy of it sometime after 15 February 2010.","B. Relevant domestic law","19. The relevant part of Article 31 of the Constitution of the Republic of Lithuania reads:","Article 31","\u201c...","It shall be prohibited to compel anyone to give evidence against himself, or his family members or close relatives.","...","A person suspected of committing a crime, as well as the accused, shall be guaranteed, from the moment of his apprehension or first interrogation, the right to defence, as well as the right to an advocate.\u201d","20. At the material time, the relevant provisions of the Code of Criminal Procedure read:","Article 10. The suspected, accused or convicted person \u2019 s defence rights","\u201c1. A suspected, accused or convicted person has defence rights, [which] shall be ensured from the moment of their detention or first questioning.","2. The court, prosecutor or investigating officer must ensure that the suspected, accused or convicted person has the opportunity to defend him or herself by the means prescribed by law ...\u201d","Article 51. Obligatory presence of a lawyer","\u201c1. A lawyer must be present in the following situations:","1) where the suspect or the accused is a minor;","2) where the case concerns a person who is blind or deaf, or because of a physical or mental impairment cannot exercise his or her defence rights;","3) where the case concerns a person who does not understand the language of the proceedings;","4) where there are conflicts of interest between different suspects or the accused and at least one of them has a lawyer;","5) where the case concerns a crime for which a life sentence may be given;","6) where the case is being examined in the absence of the accused, as provided for by Chapter XXXII of this Code;","7) where the suspect or the accused is in detention;","8) where a decision is to be taken whether to extradite a person or transfer him or her to the International Criminal Court or [another State] under a European Arrest Warrant;","9) where the case is being examined by way of accelerated procedure.\u201d","Article 52. Waiving the right to a lawyer","\u201c1. A suspect or an accused can waive his or her right to a lawyer at any stage of the proceedings ... The right to a lawyer may only be waived at the initiative of the suspected or accused person. The waiver of the right to a lawyer must be recorded in a written report.","2. The investigating officer, prosecutor or court is not bound by the waiver of the right to a lawyer where [it] has been submitted by a minor or by a person who cannot exercise his or her defence rights because of a physical or mental impairment, by a person who does not understand the language of the proceedings, or by a person who is suspected or accused of committing a serious or very serious crime and the case is complex or large-scale, or there are any other reasons raising doubts as to his or her ability to defend him or herself.","3. Waiving the right to a lawyer does not preclude the suspected, accused or convicted person from having a lawyer at any later stage of the proceedings.\u201d","21. At the material time, Article 145 \u00a7 1 of the Criminal Code read:","Article 145. Threatening to kill or seriously injure another person or terrorising another person","\u201c1. Anyone who threatens to kill or seriously injure another person, where there is sufficient basis for believing that the threat may be carried out, shall be punished by community service, a fine, restriction of liberty, detention or imprisonment of up to two years.","...\u201d","22. At the material time, Article 385 of the Code of Criminal Procedure provided that all judgments of the Supreme Court must be served on the parties to the proceedings."],"46":["1. The applicant, Ms Danut\u0117 Mockien\u0117, is a Lithuanian national who was born in 1959 and lives in Ma\u017eeikiai.","A. The circumstances of the case","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","3. The applicant was employed as an official at the Prisons Department until 31 January 2004, when she was discharged for health reasons. She was entitled to a service pension ( valstybin\u0117 pensija ) of 854 Lithuanian litai (LTL; approximately 247 euros (EUR)) per month from the date she left her job.","4. According to Lithuanian law, service pensions are not related to social insurance contributions but are paid from the State budget to individuals because of their merits or for service to the State (see paragraphs 19 - 20 below). State officials who are entitled to service pensions are also insured by the mandatory State social insurance scheme and are entitled to other types of welfare benefit, save in exceptional cases provided by law (see paragraph 21 below).","1. Provisional Law on the Recalculation and Payment of Welfare Benefits","5. On 9 December 2009 the Lithuanian Parliament enacted the Provisional Law on the Recalculation and Payment of Welfare Benefits ( Socialini\u0173 i\u0161mok\u0173 perskai\u010diavimo ir mok\u0117jimo laikinasis \u012fstatymas; hereinafter, \u201cthe Provisional Law\u201d), which entered into force on 1 January 2010. According to the law \u2019 s preamble, the State budget deficit had been constantly increasing because of the economic crisis of that time and measures were needed to stabilise it (see paragraph 23 below). The Provisional Law set down rules for recalculating various welfare benefits, such as retirement pensions, disability benefits, maternity and paternity benefits, sickness benefits, unemployment benefits and service pensions, among others (see paragraph 24 below).","6. An explanatory report appended to the Provisional Law stated that the economic crisis had led to numerous legal acts being amended in an attempt to stabilise the State budget deficit \u2013 civil servants \u2019 salaries had been reduced and there had been changes in tax law. However, further measures were considered necessary to address the crisis. The explanatory report referred to the work plan of the Government, which had set down the guidelines for addressing the economic slowdown in the face of the global financial crisis (see paragraph 22 below). It also referred to several Constitutional Court rulings adopted in 2002-2007, which had held that individuals entitled to certain welfare benefits had a legitimate expectation that they would continue to receive them; however, in the face of an exceptional situation, when the State was unable to acquire sufficient funds to continue the payment of welfare benefits, they could be temporarily reduced to the extent necessary to ensure the protection of constitutional values and the balance between the interests of individuals and those of society.","7. In line with Article 4 of the Provisional Law, service pensions were reduced by 5-20%, depending on their size, but the final amount after the recalculation could not be below LTL 650 (approximately EUR 188) a month (see paragraphs 25 -26 below).","8. Article 15 of the Provisional Law stated that the law would expire on 31 December 2011, but that provision was subsequently amended several times. The Provisional Law ceased to apply on 31 December 2011 with regard to retirement pensions, disability benefits, maternity and paternity benefits, sickness benefits, and child benefit, but remained applicable with regard to service pensions until 31 December 2013.","9. Article 16 \u00a7 4 of the Provisional Law instructed the Government to prepare the necessary legal acts to establish a compensation mechanism for reduced retirement pensions and benefits for lost working capacity. It did not make any mention of a compensation mechanism for the other benefits that had been reduced (see paragraph 10 below).","10. On 29 June 2010 the Constitutional Court found that Article 16 \u00a7 4 of the Provisional Law (see paragraph 9 above) was not in compliance with the Constitution in so far as it had not required a compensation mechanism for those service pensions which had been reduced significantly ( dideliu mastu; see the relevant excerpts in paragraph 27 below).","11. On 6 February 2012 the Constitutional Court issued a ruling which examined the compliance, inter alia, of Article 4 \u00a7 1 of the Provisional Law (see paragraph 7 above) with the Constitution. It reiterated that the State was justified in introducing temporary reductions in various welfare benefits when faced with an economic crisis, as long as those reductions respected the constitutional principles of the rule of law and non-discrimination, among others. The Constitutional Court concluded that Article 4 \u00a7 1 of the Provisional Law was in compliance with the Constitution because it had provided that service pensions could not be reduced by more than 20%, which could not be considered as \u201csignificant\u201d. The absence of a compensation mechanism for service pensions reduced in line with Article 4 \u00a7 1 had therefore not breached the Constitution (see the relevant excerpts in paragraph 28 below). The ruling was published in the Official Gazette and entered into force on 21 September 2012.","12. On 14 May 2015 the Constitutional Court found that the different expiry dates for reductions in service pensions and other welfare benefits in Article 15 of the Provisional Law (see paragraph 8 above) were compatible with the Constitution in view of the \u201cdifferent nature and character\u201d of service pensions compared with other benefits (see the relevant excerpts in paragraph 29 below).","2. Reduction of the applicant \u2019 s service pension","13. In accordance with Article 4 \u00a7 1 of the Provisional Law (see paragraphs 7 above and 26 below), the applicant \u2019 s service pension was reduced on 1 January 2010 by approximately 15% to LTL 724 (approximately EUR 210) per month.","14. On 4 March 2011 the applicant brought a claim against the State. She requested that her service pension be restored to its pre-2010 level and that she be compensated for the period of reduced pension. The applicant also asked the court to seek a ruling from the Constitutional Court as to whether various provisions of the Provisional Law were in compliance with the Constitution.","15. On 2 November 2011 the Vilnius Regional Administrative Court adjourned the applicant \u2019 s case on the grounds that several requests concerning the compliance of the Provisional Law with the Constitution were pending before the Constitutional Court. The case was adjourned until the entry into force of the Constitutional Court \u2019 s ruling of 6 February 2012 (see paragraphs 11 above and 28 below).","16. On 13 November 2012 the Vilnius Regional Administrative Court dismissed the applicant \u2019 s claim. It held that the applicant \u2019 s service pension had been reduced in accordance with Article 4 \u00a7 1 of the Provisional Law, which the Constitutional Court had found to be in compliance with the Constitution (see paragraphs 7 and 11 above and 28 below). There were therefore no grounds to restore her pension to its pre-2010 level or compensate her for the period of reduction.","17. On 6 June 2013 the Supreme Administrative Court dismissed an appeal by the applicant and upheld the findings of the first-instance court.","B. Relevant domestic law and practice","1. Constitutional provisions","18. The relevant provisions of the Constitution read:","Article 7","\u201cAny law or other act that contradicts the Constitution shall be invalid.","...\u201d","Article 23","\u201cProperty shall be inviolable.","The rights of ownership shall be protected by law.","Property may be taken only for the needs of society according to the procedure established by law and shall be justly compensated for.\u201d","Article 29","\u201cAll persons shall be equal before the law, courts, and other state institutions and officials.","Human rights may not be restricted; no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views.\u201d","Article 52","\u201cThe State shall guarantee its citizens the right to receive retirement and disability pensions, as well as social assistance in the event of unemployment, sickness, widowhood, loss of the breadwinner, and in other cases provided for by law.\u201d","Article 107","\u201cA law (or part thereof) of the Republic of Lithuania ... may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution of the Republic of Lithuania.","The decisions of the Constitutional Court on the issues assigned to its competence by the Constitution shall be final and not subject to appeal.","...\u201d","2. Service pensions","19. Articles 1 and 4 of the Law on Service Pensions ( Valstybini\u0173 pensij\u0173 \u012fstatymas ) list the categories of people who are entitled to service pensions, such as State officials, soldiers, judges, scientists, former deportees, resistance fighters, Olympic medalists, and others; separate laws set out the specific regulations for each category (see, for example, paragraph 20 below). Article 2 provides that service pensions are paid from the State budget. Article 3 provides that a person who is entitled to several service pensions can only receive one, of his or her choice.","20. Article 1 of the Law on the Service Pensions of Officials and Soldiers ( Kari\u0173 ir pareig\u016bn\u0173 valstybini\u0173 pensij\u0173 \u012fstatymas ) lists the categories of State officials who are entitled to service pensions, such as Interior Ministry service officials, professional soldiers, prosecutors, Prisons Department officials, customs and border officers, and others. Article 3 \u00a7 1 provides that officials become eligible for a service pension after serving for a certain length of time or after being discharged for health reasons related to their duties. Article 7 sets the rules for calculating the amount of service pension, linking it to length of service and the average salary received during that time.","21. Article 2 \u00a7 1 of the Law on State Social Insurance Pensions ( Valstybini\u0173 socialinio draudimo pensij\u0173 \u012fstatymas ) provides that State officials are insured by the mandatory State social insurance scheme. Article 5 \u00a7 3 provides that individuals who are entitled to a State social insurance pension do not lose the right to receive service pensions or other benefits, save for exceptional cases provided by law.","3. Reduction of service pensions and other welfare benefits","22. The work plan of the Lithuanian Government, adopted in December 2008, stated that one of the main priorities of the Government was to prepare for the economic slowdown in the face of the serious global financial crisis. It set down guidelines for decreasing public spending, reforming tax law, balancing cash flows, and encouraging private businesses, among other things.","23. The preamble to the Provisional Law (see paragraph 5 above), provides:","\u201cThe Parliament of the Republic of Lithuania,","Acknowledging that forecasts for the State budget and the budget of the State Social Insurance Fund indicate constant increases in the deficit caused by the economic crisis in Lithuania;","Emphasising the need to stabilise the increase in the deficit in the State budget and the budget of the State Social Insurance Fund and to balance cash flows;","Aiming, as far as possible, to protect vulnerable groups in society and to ensure the timely payment of benefits during the economic crisis;","Having regard to the fact that the Constitutional Court of the Republic of Lithuania has repeatedly held that in exceptional situations (economic crises, natural disasters, and so forth), when it is impossible to acquire sufficient funds for the payment of welfare benefits, the legal regulation concerning such benefits can be amended and the benefits temporarily reduced for the duration of the exceptional situation to the extent necessary for ensuring the protection of the vitally important interests of society and other constitutional values;","Hereby enacts this provisional law.\u201d","24. Article 1 \u00a7 2 of the Provisional Law lists the categories of welfare benefits to which it applies:","\u201c2. The present law is applicable to recipients of the following benefits:","1) service pensions awarded in accordance with the Law on Service Pensions, the Law on the Service Pensions of Officials and Soldiers, the Law on Judges \u2019 Service Pensions, and the Provisional Law on the Service Pensions of Scientists;","2) compensation awarded in accordance with the Law on Theatres and Concert Halls;","3) annuities awarded in accordance with the Law on the President \u2019 s State Annuity, the Law on the Status of Signatories of the Act of Lithuanian Independence and the Law on Physical Training and Sport;","4) relief benefits paid to employable individuals of working age and benefits for nursing or care awarded in accordance with the Law on Relief Benefits;","5) state social insurance retirement pensions, except for recipients who have a high level of special needs; early retirement pensions; benefits for lost working capacity (disability) awarded to those who have lost 45-70% of their working capacity (disability of the second and third category) [and other welfare benefits] awarded in accordance with the Law on State Social Insurance Pensions and the Law on State Social Insurance Early Retirement Pensions;","6) sickness, professional rehabilitation, maternity and paternity benefits awarded in accordance with the Law on Sickness and Maternity Social Insurance;","7) sickness benefits awarded in accordance with the Law on Work-Related Accidents and Professional Sickness Social Insurance;","8) maternity (paternity) benefits awarded to State officials and soldiers from the State budget in accordance with the relevant legal acts;","9) child benefit awarded in accordance with the Law on Child Benefit;","10) unemployment benefits awarded in accordance with the Law on Unemployment Social Insurance.\u201d","25. Article 3 \u00a7 1 of the Provisional Law establishes a minimum threshold ( ribinis dydis ) of LTL 650 (approximately EUR 188).","26. Article 4 \u00a7 1 of the Provisional Law establishes that service pensions and some other welfare benefits are to be recalculated in accordance with the rules set forth in Annex 1 of the Law. Annex 1 sets recalculation coefficients ranging from 5-20%, with a higher coefficient being applied to higher benefits. Article 4 \u00a7 5 provides that the minimum set out in Article 3 \u00a7 1 (see paragraph 25 above) is paid if the amount after the recalculation is below or equal to that level.","27. In its ruling of 29 June 2010 the Constitutional Court held:","\u201cIn an exceptional situation when, inter alia, it is impossible because of an economic crisis to bring in sufficient funds to pay service pensions, the legislature, when reducing service pensions significantly, must establish ... a compensation mechanism to oblige the State, once the exceptional situation is over, to provide compensation, fairly and without an unreasonable delay, for the losses endured by such persons because of their reduced service pensions ...","Therefore, according to the Constitution, compensation must be provided for losses resulting from a significant reduction in service pensions ... Article 16 \u00a7 4 of the Provisional Law ... which instructs the Government to establish a compensation mechanism only for retirement pensions and benefits for lost working capacity and not for significantly reduced service pensions, cannot be justified under the Constitution.\u201d","28. In its ruling of 6 February 2012 the Constitutional Court held:","\u201cThe Provisional Law, as stated in its preamble, was enacted to limit increases in the deficit of the State budget and the budget of the State Social Insurance Fund caused by the economic crisis. Having regard to the especially difficult economic and financial situation in the State, and aiming to protect, to the greatest extent possible, socially vulnerable groups, the Law set down the rules for the recalculation of welfare benefits, which led to the reduction of those benefits. At the same time, the Law established certain thresholds: welfare benefits which did not exceed a minimum threshold could not be reduced, whereas those which exceeded that minimum threshold could be reduced only to the extent provided for in the Law.","It must be emphasised that the Provisional Law is of only temporary application. Furthermore, it instructs the Government to adopt the necessary regulations to establish a compensation mechanism for reduced retirement pensions and benefits for lost working capacity.","...","The Constitutional Court has repeatedly held that service pensions, which are not explicitly provided for in Article 52 of the Constitution, differ from social insurance pensions by their nature and character. They are awarded to people for their service or merits to the State of Lithuania ... and they are paid from the State budget. Receipt of those pensions is not linked to contributions to the social insurance system, but to a certain status (such as service, merits or other relevant circumstances). The specific character of service pensions permits the legislature to establish the conditions for awarding them; the legislature \u2019 s discretion in that regard is wider than in the regulation of other pensions. The conditions for awarding service pensions can vary greatly and depend on, inter alia, the nature of the service and the State \u2019 s financial resources. The legislature can also establish a maximum number for such pensions. Nonetheless, the people who fulfil the conditions established by law are entitled to receive the corresponding service pension and the State owes them a legal obligation to pay such a pension ...","The Constitutional Court has also held that the specific character of service pensions ... implies that the legislature may amend the legal regulation and reduce those pensions to a greater extent than retirement pensions or disability benefits ...","The specific character of service pensions also implies that the compensation provided for losses incurred because of a reduction in those pensions may be smaller than for losses incurred because of a reduction in retirement or disability pensions ...","As to the compliance of Article 4 \u00a7 1 of [the Provisional Law] with [the Constitution]","...","As already stated above, the Provisional Law was enacted to limit increases in the deficit of the State budget and the budget of the State Social Insurance Fund caused by the economic crisis; it set down rules for the recalculation of welfare benefits which led, inter alia, to the temporary reduction of those benefits ... It must be underlined that when recalculating service pensions in line with Article 4 \u00a7 1, the pension cannot be reduced by more than 20% ...","Taking into account the fact that in line with Article 4 \u00a7 1 of the Provisional Law a service pension ... cannot be reduced by more than 20%, there are no grounds to find that such a legal regulation reduces service pensions significantly.","Accordingly, there are no grounds to find that the absence of a mechanism in the Provisional Law designed to compensate people whose service pensions were reduced in line with Article 4 \u00a7 1 ... is not in compliance with Articles 23, 29 and 52 of the Constitution or the constitutional principle of a State under the rule of law.","...\u201d","29. In its ruling of 14 May 2015 the Constitutional Court held:","\u201cThe State \u2019 s constitutional duty to accumulate the funds necessary for the payment of benefits in order to repeal laws which have reduced them, ... cannot be interpreted as a duty to repeal [such laws] only when it becomes possible to accumulate sufficient funds to restore all the reduced benefits. When it becomes possible to accumulate a part of such funds, the legislature, taking into account the State \u2019 s economic and financial situation, its means, and the various obligations which it has undertaken, can decide to restore benefits of a different nature and character at different times or to a different extent. When making such a decision, the legislature must comply with the Constitution and the constitutional requirements of, inter alia, a State under the rule of law, equality of persons, equity, and proportionality, and with the requirement to take into consideration the specific circumstances and differences between the legal status of the persons who will be subject to a different legal regulation.","...","Accordingly, the legal regulation which established a longer period of reduction in service pensions ... than in some other welfare benefits ... is considered as a reduction in service pensions to a greater extent in view of their different nature and character in comparison with other welfare benefits ( inter alia, retirement pensions and disability benefits), that is to say, as an objectively justified difference in the treatment of different categories of beneficiaries ...","Therefore, there are no grounds to find that [the amended Article 15 of the Provisional Law] violated the constitutional principles of a State under the rule of law, equality of persons, equity, and proportionality.\u201d","4. Length of court proceedings","30. The relevant domestic law and practice concerning the length of court proceedings and available domestic remedies is summarised in Savickas and Others v. Lithuania ((dec.), nos. 66365\/09 and 5 others, \u00a7\u00a7 21 \u2011 39, 15 October 2013)."],"47":["10.The applicant was born in 1953 and lives in Budapest.","11.He had been employed as a police officer when, having reached an age when he was entitled to do so, he took early retirement and started receiving a \u201cservice pension\u201d (szolg\u00e1lati nyugd\u00edj) from 1 January 2000, when he was nearly 47 years old. The applicant, however, continued to work: he was employed in the private sector between 2000 and 2012 and from 1 July 2012 until 31 March 2015 he worked, as a civil servant, as the head of the Road Maintenance Department of the Budapest XIII District Municipality. The applicant paid the statutory contributions to the State old-age pension scheme from the first day of his employment (1 August 1973) until 31March 2015.","12.On 28 November 2011 Parliament enacted Act no. CLXVII, which entered into force on 1 January 2012. According to section 5(1) of that law, service pensions like that of the applicant were converted into a \u201cservice allowance\u201d (szolg\u00e1lati j\u00e1rand\u00f3s\u00e1g), provided that the person concerned was born in or after 1955. Pursuant to section 3(2)(b) of the same Act, for recipients of a service pension who, like the applicant, were born in or before 1954, the service pension was to be converted into an old-age pension.","13.On 1 January 2013 an amendment to Act no. LXXXI of 1997 on Social-Security Pensions (hereafter \u201cthe 1997 Pensions Act\u201d) entered into force, according to which the disbursement of those old-age pensions whose beneficiaries were simultaneously employed in certain categories within the civil service would be suspended from 1 July 2013 onwards for the duration of their employment (see also paragraphs 23-28 below). No such restriction was put in place in respect of those who were in receipt of an old-age pension while being employed within the private sector.","14.On 18 February 2013 the National Pensions Administration (Orsz\u00e1gos Nyugd\u00edjbiztos\u00edt\u00e1si F\u0151igazgat\u00f3s\u00e1g) sent a letter to the applicant in his capacity as the recipient of an old-age pension, informing him of the amended legislation and instructing him to make a declaration as to whether he was employed in the civil service, in one of the categories concerned by the amendment of 1 January 2013. By a letter of 29 April 2013 the applicant notified the National Pensions Administration of his employment situation. Subsequently, on 2 July 2013, the National Pensions Administration informed the applicant that the disbursement of his pension had been suspended as of 1 July 2013. At that time his pension amounted to 162,260 Hungarian forints (HUF; at that time approximately 550 euros (EUR)) per month.","15.On 15 July 2013 the applicant lodged an administrative appeal with the National Pensions Administration (see paragraph 21 below) against the suspension of his pension payments in which he argued that his pension constituted an acquired right and that he was being discriminated against since pensioners working in the private sector continued to receive their pensions.","16.The National Pensions Administration sought further information from the applicant on 23 July 2013. The applicant elaborated on his appeal on 1 August 2013, referring, inter alia, to an application filed by the Ombudsman with the Constitutional Court in May 2013 (AJB-726\/2013). In that application the Ombudsman set out the complaints which had been made to his Office about the amendment of the 1997 Pensions Act and raised the issue of a difference in treatment between pensioners employed in the civil service and those employed in the private sector. As far as the Court is aware, this case is currently still pending before the Constitutional Court.","17.On 27 September 2013 the National Pensions Administration discontinued the proceedings concerning the applicant\u2019s appeal, holding that the applicant had failed to provide the information sought from him on 23July 2013.","18.The applicant\u2019s employment with the Budapest XIII District Municipality came to an end on 31 March 2015. On 24 April 2015 the competent authority decided that the disbursement of his pension would be resumed. His pension was increased to HUF 177,705 (at that time approximately EUR 585)."],"48":["4.The facts of the case, as submitted by the parties, may be summarised as follows.","A.The factual background","5.The applicant and his mother entered the United Kingdom on 13 July 1989 and were granted six months\u2019 leave to enter as visitors. Following the expiry of their leave they remained in the United Kingdom as overstayers.","6.The applicant\u2019s father entered the United Kingdom in 1991.","7.The applicant\u2019s siblings were born in the United Kingdom on 20November 1993 and 11 January 1995.","8.On 5 June 1995 the applicant\u2019s mother claimed asylum on undisclosed grounds. The applicant and his two siblings were named dependents on that claim. The Secretary of State for the Home Department refused the asylum claim on 15 April 1998. Following a reconsideration of the case in August 1999, the Secretary of State again refused the asylum claim but granted the family four years\u2019 exceptional leave to remain in the United Kingdom.","9.In March and November 1999 the applicant, who was then twelve years old, received police cautions for offences of assault occasioning actual bodily harm and robbery.","10.On 7 February 2003 he was convicted of robbery and assault occasioning grievous bodily harm.","11.On 21 August 2003 the applicant, his mother and his siblings were granted indefinite leave to remain in the United Kingdom. His mother and siblings have since become British citizens.","12.On 16 December 2003 the applicant was convicted of disorderly behaviour or using threatening\/abusive\/insulting words likely to cause harassment, alarm or distress. He was fined GBP 50.00.","13.On 3 March 2004 he was convicted of burglary, theft and impersonating a police officer. He was sentenced to a community punishment order of two hundred hours.","14.On 26 November 2004 the applicant was convicted of robbery and was sentenced to three years\u2019 detention in a Young Offenders\u2019 Institution.","15.In or around this time the Secretary of State considered instigating deportation proceedings against the applicant. On 30 June 2006 he decided not to pursue such proceedings owing to the length of his residence in the United Kingdom. However, he warned him that should he come to the adverse attention of the authorities through criminal offending in the future, he could be liable to deportation.","16.In 2006 the applicant\u2019s father was granted indefinite leave to remain in the United Kingdom.","17.On 11 July 2008 the applicant pleaded guilty to the supply of ClassA drugs. On 20 March 2009 he was sentenced to seven years\u2019 imprisonment. The sentencing judge addressed him in the following terms:","\u201cthis case has been a copy-book example of how people in your position are able to continue to operate outside the law by the use of interchangeable street names, preying upon the most vulnerable addicts and by the indiscriminate use of fear and violence to ensure that no-one informs the police of your criminal activities ... Your evidence to the jury was that you were the main man for drugs in Swindon ... Your nickname of \u2018Bruiser\u2019 ensured that when the \u2018workers\u2019 as you called those who sold drugs on your behalf, \u2018messed up\u2019 it was your policy, to use your own words, of \u2018roughing them up a little bit\u2019. You told the jury, with some satisfaction, that this policy was successful ... I regard you as close to the source of supply and wholesaling to retailers in Swindon on a persistent and regular basis.\u201d","18.The applicant\u2019s appeal against conviction and sentence was dismissed on 19 June 2009. However, on 9 February 2010 the Court of Appeal substituted the applicant\u2019s sentence of seven years\u2019 imprisonment with one of seven years\u2019 detention in a Young Offenders\u2019 Institution. While in detention he received sixteen adjudications, which included the use of threats and abusive behaviour, disobeying lawful orders, fighting with other inmates, and attempting to commit\/incite another inmate to commit assault on staff.","19.He was released on licence on 3 March 2011.","B.Automatic deportation","20.Pursuant to section 32(5) of the United Kingdom Borders Act 2007 (\u201cthe 2007 Act\u201d), the Secretary of State was required to make a deportation order in respect of foreign criminals sentenced, inter alia, to a period of imprisonment of at least twelve months, unless one of the exceptions in section 33 \u2013 namely that removal would breach their rights under either the Refugee Convention or the European Convention on Human Rights \u2013 applied (see paragraphs 52 and 53 below).","C.Deportation Proceedings \u2013 6 April 2010 to 30 October 2012","21.On 6 April 2010 the Secretary of State notified the applicant of his liability to automatic deportation and asked him to submit reasons why he should not be deported. His representatives responded to that letter; however, on 2 March 2011 he was served with both a deportation order dated 23 February 2011, and a decision that section 32(5) of the 2007 Act applied (that is, he was liable to automatic deportation and removal would not breach his rights under either the Refugee Convention or the European Convention on Human Rights).","22.In a section of the decision headed \u201cConsideration under ECHR\u201d, the Secretary of State had regard to her obligations under Article 8 of the Convention. Although she accepted that the applicant had family ties in the United Kingdom with his mother, father, brother and sister, in the absence of further elements of dependency she found that these ties did not constitute family life. She did accept that he enjoyed private life in the United Kingdom but did not consider that his removal would be disproportionate to the legitimate interest of preventing disorder and crime. In particular, she noted that he had an elderly grandmother in Nigeria and as an adult he could be expected to readjust to life there. Furthermore, as English was one of the official languages of Nigeria, he would not face a language barrier on return. Finally, she had regard to the seriousness of his criminal record, the sixteen adjudications he had received while in detention, and the fact that he had been warned about the risk of reoffending in 2006. She therefore concluded that his deportation would not be in breach of Article 8 of the Convention.","23.The applicant appealed against this decision. In support of his appeal, he submitted a report by Dr B., a consultant forensic psychiatrist. The report indicated that he suffered from dyslexia; that he had developed Adolescent Conduct Disorder which could manifest itself in antisocial behaviour but was not inevitably associated with continued offending in adult life; and that although he presented a medium risk of reoffending, there existed a number of positive factors which would decrease the likelihood of continued criminal involvement, including his family\u2019s abstention from criminal activity, his sustained and supportive parental relationships, his wish to improve himself, and the absence of substance misuse.","24.On 8 June 2011 the First-tier Tribunal (IAC) allowed the applicant\u2019s appeal on Article 8 grounds, having found that his deportation would be neither proportionate nor necessary in a democratic society. It found that the applicant did enjoy family life with his parents and younger siblings, his unfortunate history having resulted in a particular dependency on them, since he required their support to \u201chelp him to change from being a criminal offender to an employed adult and useful member of society\u201d. In addition, it found that he had also established a private life in the United Kingdom; that he had no experience of living in Nigeria, save for a short period as a baby and a two week holiday in 2004; that he had no close relatives in, and no ties to, Nigeria; that he had indicated his remorse and given assurances that he would not offend again; and that his working and studying whilst in detention supported those assurances.","25.The Secretary of State was granted permission to appeal on 24 June 2011.","26.On 31 October 2011 the Upper Tribunal (IAC) found there to have been a material error of law in the decision of the First-tier Tribunal. The decision was set aside in its entirety and the case submitted for a full rehearing before the Upper Tribunal.","27.On 24 April 2012 the Upper Tribunal dismissed the applicant\u2019s appeal against the deportation order.","28.The Tribunal considered the principles established by this Court in Boultif v. Switzerland, no. 54273\/00, ECHR 2001\u2011IX, \u00dcner v. the Netherlands [GC], no. 46410\/99, ECHR 2006\u2011XII and Maslov v. Austria [GC], no. 1638\/03, ECHR 2008. In its view, the single most compelling factor in the applicant\u2019s favour was the length of his residence in the United Kingdom. It also had regard to his family ties. Although it did not accept that there was any additional element of dependency which would enable it to find the existence of family life for the purposes of Article 8 of the Convention, it nevertheless accepted that the applicant\u2019s parents and siblings were an important part of his private life.","29.Balanced against his long residence and established private life, the Tribunal considered the applicant\u2019s criminal record. It noted that he had a long history of offending, beginning at the age of twelve; that he had received fair warning from the Secretary of State in 2006 that any further offending would not be tolerated; that notwithstanding that warning and the subsequent assurances given to the Secretary of State that he was turning his life around, he was already engaged in drug dealing; that his criminal behaviour had not only continued but had also escalated; that whilst serving his most recent sentence, he had received sixteen adjudications, the majority of them for violence and disobedience; that his problems with dyslexia could not be used as an excuse to justify his poor behaviour and repeat offending; and that whilst the majority of his offending had occurred when he was a child, his most recent and most serious had occurred after he had attained his majority.","30.With regard to the issue of future offending and risk to the public, the Tribunal found it difficult to accept his assurances that he had had a genuine change of heart and no longer posed a risk to the public. He had made similar assurances when faced with deportation in 2006, and since his criminal associates were in prison the fact that he did not see them was not a weighty factor indicating a lifestyle change. Furthermore, there was no evidence that either of his parents would be able to exert any positive influence over him, as they had been unable to do so in the past. Although he was in employment on a probationary period, there was no evidence of a contingency plan should he not progress into more secure employment.","31.Therefore, whilst accepting that the applicant\u2019s removal would be difficult, the Tribunal concluded that he was of an age where he could be expected to \u201cstand on his own two feet and make a life for himself\u201d. His family could visit him in Nigeria and there was evidence to suggest that he had a number of relatives living there. The Tribunal further noted that he had no girlfriend or children in the United Kingdom, he was in good health, and he would not face any language difficulties as there was a universal use of English in Nigeria. Consequently, the Tribunal concluded that in spite of his long residence and family circumstances, serious reasons (as required by this Court in Maslov, cited above, \u00a7 75) existed to justify the applicant\u2019s expulsion, and that the public interest in effecting deportation outweighed his Article 8 rights.","32.On 21 June 2012 the Upper Tribunal refused to grant the applicant permission to appeal. The Court of Appeal similarly refused permission to appeal on 12 September 2012, and again on 30 October 2012 following an oral hearing. It found that although the case had required a difficult and delicate balancing exercise, the Upper Tribunal had provided a thorough and careful determination, and the conclusion reached was one which had been open to it.","D.Amendment of the Immigration Rules","33.On 9 July 2012 the Secretary of State amended the Immigration Rules (see paragraphs 54-57 below). In so far as relevant, the new Rules (which have since been further amended) provided that the deportation of foreign criminals would be conducive to the public good if they were sentenced to four or more years\u2019 imprisonment. In such cases, the public interest would only be outweighed in \u201cexceptional circumstances\u201d.","E.Further representations","34.On 9 November 2012 and 14 November 2012 the applicant submitted further representations to the Secretary of State based on his fourteen-month relationship with a British national, who had no connection to Nigeria, and the birth of their son on 1 October 2012. The Secretary of State treated those representations as an application to revoke the deportation order and refused it on 3 January 2013. She also certified the applicant\u2019s claim, which meant that he was not afforded an automatic in\u2011country right of appeal.","35.On 14 January 2013 the applicant sought permission to apply for judicial review of the Secretary of State\u2019s decision to certify his claim. Along with his application, he provided medical evidence that his son required an operation in March 2013 to correct an umbilical hernia, and that he had been diagnosed with respiratory syncytial virus and bronchiolitis.","36.On 19 February 2013 the Secretary of State agreed to withdraw the certification decision and to issue a new decision taking account of the applicant\u2019s further representations of November 2012 and those lodged with the judicial review application in January 2013.","37.The Secretary of State considered the applicant\u2019s further representations in light of the amended Immigration Rules. In a decision dated 11 April 2013, she refused to revoke the deportation order since there were no \u201cexceptional factors\u201d which outweighed the public interest. In particular, she noted that the applicant had entered into a relationship in the full knowledge of the intention to deport him; that both the applicant and his partner should have been fully aware of the implications of conceiving a child in those circumstances; that no valid reason had been given to explain the applicant\u2019s failure to make submissions regarding his relationship at either the Upper Tribunal hearing in April 2012 or the Court of Appeal hearing on 30 October 2012; that if the applicant\u2019s partner wished to continue the family unit in Nigeria, suitable medication would be available in that country to treat their son\u2019s bronchiolitis condition; that there was no evidence of any exceptional, compelling or compassionate factors; and that deportation remained a proportionate response to the applicant\u2019s serious criminal offending.","38.The applicant appealed. He submitted a number of documents in support of his case, including a further psychiatric report by Dr B. dated 17July 2013. The report indicated that he had continued to make progress in adopting a \u201cpro-social lifestyle\u201d, that he had addressed his tendency to violence, that he no longer had any criminal associates, that he had demonstrated a commitment to his partner and their son, that he had secured employment, and that the risk of re-offending and of harm to the public was very low.","39.The First-tier Tribunal, having heard oral evidence from the applicant, his partner, mother, father, brother and sister, and having considered the evidence before it, dismissed the applicant\u2019s appeal on 16September 2013.","40.Using a two-stage approach, the Tribunal first considered the applicant\u2019s case under the Immigration Rules. It noted that the applicant\u2019s most recent conviction was for a serious offence which had attracted a sentence of seven years\u2019 detention; that following the amendment of the Immigration Rules, \u201cexceptional circumstances\u201d would be required to prevent deportation; and that those \u201cexceptional circumstances\u201d were inextricably bound up with the applicant\u2019s Article 8 rights.","41.In this regard, the Tribunal recalled that the applicant\u2019s family and personal circumstances had been examined with the most careful and thorough consideration by the Upper Tribunal in 2012. It had considered them in the context of the exceptionality requirements set out in Maslov (the requirement of \u201cvery serious reasons\u201d to justify the expulsion of a settled migrant: see Maslov, cited above, \u00a7 75) and concluded that his deportation was justified. The Tribunal noted, however, that the applicant\u2019s personal circumstances had since changed. It therefore gave careful consideration to his two-and-a-half-year relationship with his partner and the birth of their child. Nevertheless, it concluded that neither the relationship nor the birth of the child amounted to an \u201cexceptional circumstance\u201d within the context of the Immigration Rules. Although it accepted that there would be an inevitable interference with the family life said to exist between the applicant, his partner and their child, it found there to be nothing \u201cexceptional\u201d about this. Consequently, the Tribunal did not consider that his family and personal circumstances amounted to the \u201cexceptionality\u201d required by the Immigration Rules.","42.The Tribunal moved on to consider Article 8 as a separate issue, having regard to the findings of the Upper Tribunal in 2012. It agreed with the Upper Tribunal that language would not be an obstacle for the applicant since English was widely spoken in Nigeria. It further noted that while the evidence as to the existence of family in Nigeria was somewhat confusing, it was perhaps not of fundamental importance for an adult quite capable of standing on his own two feet; that the applicant would continue to receive support from his parents following his removal to Nigeria; and that his parents could visit him there as often as they wished.","43.In respect of the applicant\u2019s relationship with his partner and their child, it observed that he had failed to disclose his immigration status to his partner until after she had fallen pregnant; that he and his partner had never lived together; that his partner and child had the full support of her family in the United Kingdom, with whom they lived, and that support would continue following the applicant\u2019s deportation; and that his child could visit him in Nigeria and maintain such a relationship as deemed appropriate. Therefore, having carefully considered the issue of proportionality, including \u201csection 55 [of the Borders, Citizenship and Immigration Act 2009 \u2013 see paragraph 60 below] and the best interests of the Appellant\u2019s child\u201d, the Tribunal concluded that the Secretary of State had a legitimate interest in maintaining appropriate immigration control and social order within the United Kingdom, and that the interests in effecting the applicant\u2019s deportation were not outweighed by his Article 8 rights.","44.The applicant sought permission to appeal on the ground that the Tribunal had erred in concluding that his circumstances were not \u201cexceptional\u201d for the purposes of the Immigration Rules. The First-tier Tribunal refused permission to appeal on 4 October 2013. The applicant made a further application for permission to appeal to the Upper Tribunal, raising the same grounds as before the First-tier Tribunal. In addition, he also submitted that the application raised an important point of principle: namely, whether the decision of the Tribunal was contrary to the principle of double jeopardy, or constituted discriminatory punishment, since a British national could not be excluded from the United Kingdom. On 23October 2013 the Upper Tribunal refused the application for permission to appeal. Both Tribunals found that the applicant\u2019s grounds sought, in essence, to reargue the merits of the appeal and that no error of law had been disclosed.","45.The applicant then sought permission to apply for judicial review of the Upper Tribunal\u2019s refusal of the application for permission to appeal. Following the Supreme Court judgment in R (on the application of Cart) v.The Upper Tribunal; R (on the application of MR (Pakistan)) v. The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department [2011] UKSC 28, the Administrative Court could only review decisions of the Upper Tribunal if the \u201csecond appeal\u201d test was satisfied; that is, if the appeal raised an important point of principle, or there was another compelling reason to allow it to succeed. In the present case the applicant once again submitted that the \u201cdouble jeopardy\u201d argument raised an important point of principle. However, on 6 December 2013 the Administrative Court refused the application for permission to apply for judicial review. In refusing permission the judge expressly stated that while it was \u201capparent that different views might reasonably be taken about whether the Claimant should be permitted to remain in the UK in the light of his family ties and length of residence\u201d, that was \u201cnot the test for the grant of permission\u201d.","46.Following the refusal of the application for permission to apply for judicial review, the applicant had no right to renew the application at an oral hearing in the Administrative Court. However, it would have been possible for him to apply to the Court of Appeal for permission to appeal against the Administrative Court\u2019s decision.","F.Events subsequent to the final domestic decisions","47.Removal directions scheduled for 20 January 2015 were cancelled owing to the absence of a valid travel document.","48.On 18 March 2015 the applicant advised the Court that his relationship with his partner had broken down and that he had court-ordered direct contact with his son on alternate Saturdays.","49.On 4 August 2015 the Secretary of State advised the applicant that an application to the Nigerian authorities for a travel document, required to effect his deportation from the United Kingdom, was pending."],"49":["A.Background","5.The applicant, born in 1987, is the mother of two children, who are half-brothers. Her older son, born in 2008, was taken into permanent public care by the authorities in 2010 and placed with the applicant\u2019s mother and stepfather. Her younger son, X, was born in February 2012. The applicant has been diagnosed as having a hyperkinetic disorder and has had a history with psychiatric treatment.","6.On 15 June 2012, after receiving notifications from the authorities and a private individual regarding the applicant\u2019s inability to take care of X, the municipal child welfare authorities decided to place him in emergency foster care. On 29 June 2012, that decision was upheld by the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker).","B.Proceedings before the County Social Welfare Board","7.The emergency placement was followed up by the child welfare authorities with a petition of 6 July 2012 to the Board for a public care order. The authorities requested that X be placed in a foster home and that the applicant be granted supervised access rights. Concerning the question of where he should be placed, the authorities essentially stated that the applicant\u2019s mother and stepfather had previously been approved as foster parents for the applicant\u2019s older son (see paragraph 5 above). However, the ability to cooperate was necessary for those wanting to be foster parents and there had been some conflict between the applicant\u2019s mother and the authorities. Moreover, the applicant\u2019s mother and stepfather were considered to be relatively old (having been born in 1962 and 1955, respectively) to serve as foster parents to a small child, and the applicant\u2019s mother had recently been ill. Furthermore, the applicant\u2019s mother had not made visiting the applicant\u2019s younger son her priority. In these circumstances, it would not be in X\u2019s best interest to be placed with his maternal grandmother and her husband \u2013 the applicant\u2019s mother and stepfather.","8.The applicant objected to the request for an order of public care in respect of her younger son X and maintained that, if such an order be granted, he should be placed with her mother and stepfather. In her view, the child welfare authorities had not properly evaluated that possibility. Her mother\u2019s alleged inability to cooperate had in fact merely been a question of disagreement. The applicant\u2019s mother and stepfather had been aware of the applicant\u2019s difficulties and had helped her. They had also been approved as foster parents to the older son, who had developed well and had positive references from his kindergarten. Their age was not in itself of importance, given that other circumstances were in favour of their acting as his foster parents. To place X with them would be more stable and less stigmatising than an external placement.","9.On 26 October 2012, after hearing the parties and ten witnesses, the County Social Welfare Board granted the request for an order of public care. It decided that X should remain in the home in which he had already been placed as an emergency measure.","10. In its reasoning regarding the issue of the choice of foster home, the Board firstly noted that it was accepted that the applicant\u2019s mother and stepfather had been generally approved as foster parents in connection with the care order in respect of the older son in 2010, but that this issue had to be assessed in view of the current situation, taking into account the best interest of the younger son X. On the specific question as to whether it would be in his best interest to be placed with them, the Board stated the following:","\u201cThe Board sees that there are many positive sides to a placement within the family network, which justifies that such a placement be considered. The Board considers that the grandmother and her husband in many respects are well suited as foster parents for [X]. [According to] the grandmother, they have been asked whether they [are willing to] adopt [the older son]. Placing [X] with his maternal grandmother and her husband would mean that [the two sons] would grow up together.","As the Board has previously mentioned, [X] may be inherently vulnerable. This is reinforced by the fact that the Board finds that it cannot be ruled out that the boy may have attention-related difficulties. Reference is made to the emergency foster mother\u2019s description of the boy\u2019s restlessness. In addition to the mother\u2019s diagnosis and her considerable difficulties, it has emerged that her brother has also been diagnosed with attention deficit hyperactivity disorder (ADHD) and has considerable difficulties. This means that there is a risk of the boy having the same type of difficulties.","The Child Welfare Service has referred to problems concerning cooperation between the maternal grandmother and agencies such as the Child Welfare Service and health workers. The Child Welfare Service in [the municipality] has also reported difficulties regarding cooperation. On the basis of the statements of the Child Welfare Service and the [younger son\u2019s] health visitor, the Board finds that there have been challenges as regards their cooperation with the grandmother. However, the Board finds no grounds for concluding that these problems have been as serious as they might have initially seemed, and the grandmother\u2019s explanations are to a certain extent plausible. The Board nonetheless finds reason to conclude that there have been some difficulties regarding cooperation.","The grandmother has seen that [the applicant] has not been capable of caring for [the older son], and she has also been concerned about [the applicant]\u2019s ability to look after [X]. In her statement to the Board, she still seemed to be uncertain about [the applicant]\u2019s ability to care for the boy. She nevertheless largely left [the applicant] and the child to themselves shortly after the birth while they were staying with her. The Board further remarks that the grandmother had not arranged with the Child Welfare Service in [the municipality] that [the applicant] and [X] were to move in with her and [the applicant\u2019s older son]. [The applicant] moved out of her mother\u2019s house, together with [X] after a short period, even though the grandmother realises that [the applicant] faces challenges as regards running a home. The Board has noted that the grandmother has not attended the contact sessions and thus not seen [X] since he was placed in care.","The grandmother and her husband are relatively old to be foster parents to such young children. [The applicant]\u2019s mother was born in 1962 and her husband in 1955. The Board considers it likely that [X]\u2019s placement in care will be long-term. Although age alone is not decisive in relation to the choice of foster home, it is a factor in the assessment. The maternal grandmother and her husband already have a foster child who is four years old, and it will require a lot of energy on their part to have another foster child ... who is also younger than the one they [already] have. Taking care of [X] could also affect the situation of [the older son], who they already have care of and must look after.","The Board has found that its doubts about placing [X] with his grandmother and her husband are so serious that the disadvantages outweigh the advantages. The reason is the uncertainty relating to the boy\u2019s vulnerability and the strain that another foster child would entail, regardless of whether or not this child has special needs, the grandmother\u2019s and her husband\u2019s age and certain difficulties regarding cooperation.\u201d","11.On the basis of the above, the Board arrived at the conclusion that X should not be placed with his grandmother and her husband. On 27 January 2013 X was transferred from the emergency home to a foster home.","C.Proceedings before the City Court","12.The applicant appealed to the local City Court (tingrett), which held an oral hearing from 4 until 6 June 2013. In accordance with section 36-4 of the Dispute Act (see paragraph 22 below), the court\u2019s bench comprised one professional judge, one psychologist and one lay person. It heard fourteen witnesses in addition to the parties. The applicant was present, was represented by counsel, and gave testimony.","13.In its judgment of 22 July 2013, the City Court upheld the County Social Welfare Board\u2019s decision in full.","14.With respect to the applicant\u2019s caring skills and X\u2019s care needs, the City Court reiterated the findings of the County Social Welfare Board and the court-appointed expert. It concluded that there were beyond doubt serious deficiencies in the applicant\u2019s daily care of and personal contact with X, and that it was necessary to place him in public care.","15. Turning next to the question of whether he could be placed with the applicant\u2019s mother and stepfather, the City Court observed that they had been approved as foster parents when the applicant\u2019s older son had been placed with them in 2010. It further noted that there were advantages to a child moving to a foster home comprising family members. X would in that case be placed within the family network. It had moreover been documented that the applicant\u2019s mother and stepfather might well be suitable foster parents for him. Furthermore, it would be an advantage that the two sons would be allowed to grow up together.","16.The City Court nonetheless found that, in this case, there were no grounds for deciding that the applicant\u2019s younger son should be placed in foster care with his maternal grandmother and her husband. In addition to referring to the Board\u2019s assessment (see paragraph 10 above), the court quoted excerpts from the court-appointed expert, T.B., a specialist in psychology.","17.The expert did not recommend the placement of X with the applicant\u2019s mother and stepfather. In the report she stated, inter alia:","\u201cSeveral factors have emerged that may have a bearing on the assessment of whether [X]\u2019s grandparents can be his foster parents:","Firstly, the grandparents\u2019 age has been taken into account in the assessment. The undersigned does not see this as a decisive factor.","Furthermore, it has been emphasised that [X]\u2019s step-grandfather has himself mentioned that he is getting older, and that this may be perceived as an expression of doubt on his part. This has not had a decisive bearing on the undersigned\u2019s assessment, either. The child\u2019s step-grandfather comes across as an honest, responsible and reflective man who would be an excellent foster father for [X], even though he expresses some doubts himself.","In addition, it has also been suggested that the Child Welfare Service has had difficulties in cooperating with the foster mother in respect of [the applicant\u2019s older son]. To the undersigned, these so-called \u2018cooperation difficulties\u2019 seem to be nothing more than disagreements\/challenges that the parties are capable of handling and working out. That is how the challenges are described by both the representative of the Child Welfare Service in [the municipality] and the grandmother herself. It must also be added that [the applicant]\u2019s mother and stepfather cooperated with the undersigned in an impeccable manner during the investigation. They have had many difficult challenges over the years, and it would almost be strange if there had been no \u2018friction\u2019 during all this time. This has therefore not had any bearing on the undersigned\u2019s assessment of the question of [X]\u2019s foster home placement.","What has been important to the undersigned\u2019s assessment of this question, however, is, first of all, that [the applicant] has very different emotional ties to her two sons ..., in the sense that she seems to have renounced her role as mother of the [older son], while she must still be expected to make an effort to have as much contact as possible with [X]. This will necessarily be a problem for both boys if they are to live in the same foster home.","Furthermore, there is good reason to believe that, if [X] is placed in foster care with [the applicant]\u2019s parents, this situation will ... represent an opportunity for the contact between mother and child to constantly increase in scope, and thus be a hindrance to [X] in his development of a good attachment to his foster home. For the undersigned, this concern is based, not least, on the fact that [X]\u2019s grandmother has clearly expressed to the undersigned that she primarily wants to be a mother to [the applicant].","However, the argument in favour of letting [X]\u2019s grandmother and step-grandfather be his foster parents is of course the fact that [he] will then get to grow up together with his (half) brother. The undersigned is nonetheless of the view that this cannot carry more weight than the concerns mentioned above.","This means that placing [X] in foster care with his grandparents is not recommended.\u201d","18.Expert T.B. had upheld these assessments in her report during the main hearing, but also stated that there were \u201cdilemmas\u201d if the applicant\u2019s mother and stepfather were to be chosen as foster parents. The City Court shared the expert\u2019s concerns. Moreover, it pointed out that the two children had different needs and challenges. Although the older brother, according to the information received, was happy in his foster home with the applicant\u2019s mother and stepfather, X, despite his young age, had experienced two broken relationships \u2013 firstly with his biological mother and then with his emergency foster mother. He had now formed an attachment with his new foster mother after he had moved into his latest foster home in January 2013. There would be a risk of \u201ccontact injury\u201d (kontaktskade) \u2013 that is to say a serious impairment to his ability to form attachments \u2013 if he were to experience another broken relationship. From the foster mother\u2019s testimony it was clear that he was developing well in the foster home and that he was happy and thriving. The City Court moreover emphasised the challenges associated with having two small boys of pre-school age living with people of the age of the applicant\u2019s mother and stepfather. In addition, there was the issue of the applicant\u2019s very different respective emotional relationships with the two boys, which also entailed special challenges, particularly if X were to be placed in foster care in the same home as that of his older brother. Overall, the City Court agreed with the County Social Welfare Board and the court-appointed expert that the applicant\u2019s mother and stepfather should not be the foster parents of the applicant\u2019s younger son.","19.The applicant lodged an appeal against the City Court\u2019s judgment in so far as it concerned the choice of foster home. The High Court (lagmannsrett) refused leave to appeal on 15 October 2013, and on 3December 2013 the Supreme Court\u2019s Appeals Leave Committee (H\u00f8yesteretts ankeutvalg) rejected the applicant\u2019s appeal against the High Court\u2019s decision."],"50":["5.The applicants were born in 1961 and 1960 respectively and live in Charleroi and Antwerp.","A.Background to the case","6.The applicants are the parents of Michael Tekin, who was born in 1978.","7.The latter was detained in the psychiatric wing of Jamioulx Prison on two occasions, from 1 February 2007 to 11 July 2007 and from 17 May 2008 to 7July 2008, that is to say for a total period of about seven months. On both occasions he benefited from discharges on probation.","8.On 19 January 2009 Charleroi Criminal Court, sitting in private session, once again ordered the detention of the applicants\u2019 son under the 9April1930 Social Protection in respect of Mental Defectives, Habitual Offenders and Specific Sexual Offenders Act as amended by act of 1 July 1964 (\u201cthe Social Protection Act\u201d). During his detention in the psychiatric wing of Jamioulx Prison he was the subject of several disciplinary measures owing to his aggressive attitude to staff and other detainees.","9.On 3 July 2009 the Jamioulx Prison\u2019s Social Protection Commission (\u201ctheCDS\u201d) ordered his discharge on probation and made him subject to medico-social supervision by attaching a number de conditions to his provisional discharge.","10.By order of 7 August 2009, owing to his non-compliance with his conditions of discharge, the Public Prosecutor with the Charleroi Court of First Instance decided to return the applicants\u2019 son to the psychiatric wing of Jamioulx Prison. Michael Tekin was arrested on that same date and detained for insulting and threatening two police officers.","11.On his arrival at the police station later the same day, he was examined by a general practitioner before being transferred in the evening to Jamioulx Prison, where he was examined by Dr S., who prescribed a sedative and a sleeping tablet.","12.The applicants\u2019 son was then placed in an individual cell in an ordinary section of Jamioulx Prison.","B.The course of events during the morning of 8 August 2009","13.The course of events as set out below was established following the judicial investigation and proceedings and is undisputed by the parties.","14.At around 9.30 a.m. on 8 August 2009 Michael Tekin was presented before the Deputy Director of Jamioulx Prison for his interview as a new arrival. After the interview, the Deputy Director decided to implement special security measures for a week. Those measures were adopted owing to Michael Tekin\u2019s nervous, agitated state and because he considered his detention to be arbitrary and was demanding his release. The following special security measures were ordered: placement in an individual cell, individual access to the prison yard, receiving visits in a booth rather than in the collective visiting area, use of plastic knives and forks, opening of the cell only by heads of section accompanied by two prison officers, accompaniment by a member of staff during the detainee\u2019s movements and implementation of special surveillance involving checks on the cell by a prison officer every fifteen minutes to ensure that nothing abnormal was happening.","15.Prison officer R., who had accompanied Michael Tekin since his return to prison, was instructed to inform him of those special security measures in his capacity as head of section acting as a prison assistant. He was accompanied by two other officers, L. and D.","16.On their arrival in the cell at about 11.30 a.m., Michael Tekin was just finishing his lunch. R. read out the special security measures ordered by the Director. According to R.\u2013as confirmed by L. and D.\u2013Michael Tekin provoked him by deliberately sneezing (or \u201cspitting\u201d, according to the Government) on him. When R. told the detainee to stop his provocative behaviour, otherwise he would be moved to an isolation cell, Michael Tekin moved up to him and placed his head so close to R.\u2019s that all three officers thought that they was about to be attacked.","17.In view of Michael Tekin\u2019s reaction and his previous history, R. decided to place him in an isolation cell. He seized Michael Tekin by the scruff of his neck and D. grabbed his shoulder in order to whisk him out of the cell.","18.R. explained that owing to the exiguity of the cell, he was unable to maintain his grip on the back of the detainee\u2019s neck and he decided to resort to a different stranglehold technique, which involved an \u201carmlock\u201d around the detainee\u2019s neck, while forcing him down to the ground. When Michael Tekin was face-down on the floor, he was still immobilised in an armlock by R., who was also leaning his full weight on the upper part of his back. Michael Tekin had allegedly then complained that he could not get any air and was suffocating. L. blocked the detainee\u2019s right arm; his left arm was already blocked under L\u2019s body. Finally, D. squatted on top of the detainee.","19.Reinforcements were called in, and several more officers arrived on the spot. A total of about ten officers were now present. Some of them helped with keeping MichaelTekin under control while others remained passive. Michael Tekin was handcuffed and shackles were placed on his ankles.","20.He was then lifted to his feet to be transported by two officers, including D., to the isolation cell. The officers\u2019 witness statements diverge on Michael Tekin\u2019s ability to talk and breathe on his way to the cell. However, they all agree that they had to drag him along, supporting him under the shoulders and then carrying him, and that his head was hanging down. The officers noted that he had urinated on himself. They had to carry him down twenty or so steps to reach the isolation cell.","21.On arrival at the door to the isolation cell, the officers placed Michael Tekin face down on the floor owing to the narrowness of the door, and dragged him inside. Once they were inside the isolation cell they turned him over, only to note that his face was cyanotic.","22.At about 11.50 a.m. the prison nurse received a telephone call to inform her that Michael Tekin was unconscious. She alerted the duty doctor and prepared the medical equipment.","23.When the nurse and the duty doctor arrived at the inner security gate of the prison, an officer, who had been a witness to the events, informed them that the \u201cservice 100\u201d (the medical emergency service) and the SMUR (emergency ambulance service) had been called at about 11.54 a.m. A transcription of the call is included in the case file.","24.Pending the arrival of those services, the duty doctor and the prison nurse began a cardiac massage at 12 noon, having noted that Michael Tekin was not breathing and had no pulse.","25.The \u201cservice 100\u201d paramedics arrived at 12.15 p.m. However, they noted that the SMUR had not been contacted, and decided to request its emergency intervention. A \u201cservice 100\u201d nurse subsequently stated that they had been called for a straightforward assault and had therefore not been informed of the gravity of the situation.","26.The SMUR arrived at 12.35 p.m. and Michael Tekin was immediately intubated and put on a drip. However, the doctor could only note that in the absence of electrical activity it was pointless to continue the attempts at resuscitation.","27.Michael Tekin\u2019s death was recorded at 12.50 p.m.","C.Inquiries before and after the instigation of the judicial investigation","28.An inquiry was immediately instigated ex officio. The forensic pathologist instructed by the Public Prosecutor travelled to the scene of the events at 2.20 p.m. on the same day and noted very extensive cyanosis of the face and the neck region, and the presence of food products in the region of the nostrils and mouth.","29.All the main witnesses were heard on the same day or in the ensuing days.","30.At his first hearing on 8 August 2009, R. stated the following, as regards the prison officers\u2019 intervention:","\u201cMichael Tekin arrived in prison yesterday in a state of high nervous tension. In fact the police officers accompanying him described him as very dangerous.","On arrival Michael Tekin was very worked up against the police. We took over and he calmed down.","We knew Michael Tekin from his previous detention, and so, for security reasons we placed him in an individual cell in the 9th section, cell no. 9229. According to my information he didn\u2019t cause any trouble during the night.","This morning Michael Tekin went to see Director [H.] for the \u2018incomer\u2019s report\u2019, as for every new arrival.","I was present during this interview in the office used for that purpose.","Michael Tekin started shouted about the police officers, calling them disabled and claiming it was their fault he was there.","The Director explained that he had to visit the CDS (the Social Protection Commission). Michael Tekin replied that he did not have to wait around and that he was going to fetch his keys in the cloakroom and leave. When we told him that was impossible, he threatened us with the words \u2018you\u2019ll get what\u2019s coming to you\u2019.","Knowing that Michael Tekin had a capricious and unforeseeable character and had already attacked officers in the past, the Director imposed special measures on him such as an individual cell, opening the cell door by several officers, using plastic knives and forks, etc.","He was taken back to his cell by a number of officers, without incident.","Where special measures are ordered, they must be entered in writing and signed by the detainee.","At about 11.45 a.m. I went to his cell accompanied by [L., D. and C.]. Michael Tekin was eating when we went in.","When I explained the measures to him, Michael Tekin got up and pretended to sneeze, spitting some of his dinner (vol-au-vent) in my face. I stepped back. Michael Tekin moved towards me and started sneezing again.","I immediately told him to calm down and to spit somewhere else. He moved towards me again. I told him that if he did not calm down he would be moved to the isolation cell. He came right up to me, with his head against mine, and said \u2018I\u2019d like to see you doing that\u2019. I then grabbed him by the neck in order to force him to the ground and take him to the isolation cell. I should point out that I got him in an armlock before pushing him off balance.","My colleagues were holding him by the arms and legs. We called for reinforcements. While I was holding him I spoke to him and he answered \u2018I\u2019m choking\u2019. I relaxed my hold and told him that if he could talk he was not choking.","Michael Tekin was gesticulating with his arms and legs. I would specify that I fell to the ground with Michael Tekin and he was on his side. In the end I was no longer holding him around the neck but exerting pressure on his head.","The reinforcements arrived and we managed to handcuff him. We lifted him to his feet in order to take him to the isolation cell. The reinforcements took charge of Michael Tekin, and I started following them up near the rotunda after I\u2019d got my breath back. Michael Tekin was no longer protesting, relaxing to the extent that the officers had to carry him. Arriving at the cell I realised that Michael Tekin was not pretending, as his face was turning blue. We called the infirmary and also the SMUR. Dr [L.] was at the prison, and Tekin was given first aid, including artificial respiration, for at least 15 minutes. He was also defibrillated. I stayed beside the doctor the whole time. The ambulance arrived and I stayed in the cell to help them. When the SMUR arrived I left the cell and waited in the corridor. From what I heard it was already too late. They hadn\u2019t managed to resuscitate him.\u201d","31.Later on the same day R. was questioned again, and he added the following statement:","\u201cI would point out that during my explanation of the reasons for the [special security] measures I noticed the expression in Michael Tekin\u2019s eyes changing and becoming more threatening, such that I was already on my guard when he got up.","When he was there with his forehead pressed against mine, I moved aside and got him in an armlock, that is I placed my right arm around his neck and fell to the ground with him. You ask me if I exerted pressure on his neck, and I would reply that I did not press on the front of his throat. Once we were on the floor on the corridor side of the cell door I reduced the pressure. When he started to struggle again I exerted a small amount of pressure and slackened it immediately. In any case he was talking to me, as I mentioned in my first statement.","...","We have not been trained in restraining detainees in critical situations. Following the events at Lantin we were given \u2018conflict management training\u2019, learning how to manage a conflict by talking, and especially how to prevent things getting out of hand. My answer to your question is that in the event of an attack by a detainee we just have to do our best to restrain him.\u201d","32.Officer D. made the following statement:","\u201cWe pinned Michael Tekin to the ground. ... I didn\u2019t hear Michael Tekin speaking, but I think he was trying to talk but nothing came out. ... On the way to the isolation cell I didn\u2019t hear him talking or complaining. ... I think he was still alive because several times I felt resistance in his arm.\u201d","33.DrB. carried out the autopsy the next day, on 9 August 2009. The autopsy report of 14 August 2009 concluded that the manoeuvres on his neck had caused injuries deep enough to fracture the right upper horn of the thyroid cartilage and that those injuries had been prolonged, because symptoms of asphyxiation had been observed. The report added that the loss of urine reported by the investigators pointed to the moment when the loss of consciousness became so deep as to inhibit the sphincter reflex mechanism. Such an inhibition could be observed, for instance, during the unconscious phases occurring in epileptic episodes. As regards the \u201carmlock\u201d restraint technique, the autopsy report stated:","\u201cDuring the compression exerted by a forearm (acting as a lever, with the person standing behind the victim), the lethal mechanism is virtually identical to traditional manual strangulation.","Such particularly severe compression causes a bilateral vascular obstruction and a flattening of the upper respiratory channels against the cervical vertebrae.\u201d","34.An investigation was instigated on 10 August 2009 against persons unknown on charges of grievous bodily harm having led to unintentional death. The applicants applied to join the proceedings as civil parties.","35.The reconstruction of the events led Dr B., who had carried out the autopsy, to the conclusion that the cervical manoeuvres had been caused by the armlock applied by R., while the weight applied by L. on MichaelTekin\u2019s thorax had had a negative effect on the latter\u2019s respiratory mechanism and been conducive to asphyxia, his respiration being further hindered by the manner in which he had been transported to the isolation cell.","36.By judgment of 20 March 2012 the Indictments Division of the Mons Court of Appeal committed the three accused, that is to say R., L. and D., for trial before the Charleroi Criminal Court on charges of grievous bodily harm having led to unintentional death.","D.The Criminal Court\u2019s judgment","37.At the 24October 2012 hearing before the Charleroi Criminal Court, Dr B. submitted that it was not impossible that the detainee\u2019s fall to the ground had produced the force leading to the fracture of the right upper horn of the thyroid cartilage and that it had been quite possible that the armlock had on its own been sufficient to bring about the fatal outcome. He was, however, unable to affirm that if the strangulation had ceased after the thyroid cartilage had been broken Michael Tekin would have been able to breathe again normally and survive, since the outcome would have depended on the injuries sustained previously. Furthermore, Dr B. took the view that the compression of the thorax and the fact that Tekin had been carried to the isolation cell were not, in themselves, sufficient to have caused his death. Finally, he confirmed that the version of events provided by R. during the reconstruction had been compatible with the medical findings.","38.On 28 November 2012 the Charleroi Criminal Court acquitted R. The court held that R.\u2019s intervention had indisputably been a matter of self-defence, which ruled out any responsibility on his part. Having regard to Michael Tekin\u2019s personality and his nervous, agitated state, R. could reasonably have feared an imminent serious attack against L. and himself. The accused\u2019s reaction had therefore been absolutely necessary. The court accordingly considered that R. had react proportionately to the attack by applying a hold which he had learnt during training in the management of that kind of incident, and in respect of which nothing in the case file suggested that it had been wrongly executed. Subsequently, the continuation of the armlock had been equally justified and proportional in view of the fact that Michael Tekin had continued to struggle. According to the court, there was no objective evidence to suggest that the accused\u2019s actions had been dangerous, or that R. had used force not strictly necessary for the execution of the restraint technique. There was no indication that R. had known, or should have known, about the risk of fracture of the thyroid cartilage since that risk was not mentioned in the training programmes included in the case file; nor could he have been aware that in maintaining the hold he had been exacerbating the decrease in the oxygenation of Michael Tekin\u2019s blood, particularly since R. had not known what his colleagues were doing. Moreover, the court considered that R. must not have been alarmed by the detainee\u2019s reactions since he had continued to struggle and R. had regularly relaxed his grip to let him breathe. There was no evidence that the accused had noticed any change in the detainee\u2019s voice resulting from the fracture of the thyroid cartilage, nor, in any event, that they could have connected that putative change with any risk to Michael Tekin\u2019s physical integrity.","L. and D. were also acquitted under the rules on co-perpetration.","Moreover, the Criminal Court relinquished jurisdiction for determining the applications for civil-party status owing to the accused\u2019s acquittal.","39.The applicants, as civil parties, appealed against the judgment as regards its civil-law provisions. The prosecution did not follow suit. The appeal has been pending before the Mons Court of Appeal since December2012. The Government submitted that the applicants had not requested notification of the hearing such as to facilitate adjudication of the civil-law interests.","E.Proceedings held after the lodging of the application","40.On 28 July 2014 the applicants lodged a criminal complaint, together with an application to join the proceedings as civil parties, against the three acquitted prison officers and three of their colleagues for failure to assist a person in danger.","On 9 May 2016 the Charleroi Court of First Instance, sitting in private session, declared inadmissible the application to join the proceedings as civil parties to the extent that it concerned the three prison officers acquitted by judgment of the Criminal Court on 28 November 2012 on the grounds that the facts were identical to those of the first set of criminal proceedings, and gave a discontinuance decision in respect of the other three accused on the grounds that the investigation had not uncovered sufficient evidence against them.","41.On 1 August 2014 the applicants further filed an action for damages before the Brussels Court of First Instance seeking a finding that the Belgian State had been responsible for Michael Tekin\u2019s death and for the suffering which he had sustained owing to his placement in an ordinary cell instead of in the psychiatric wing of the Jamioulx Prison.","By judgment of 19 February 2016 the Brussels Court of First Instance declared the claim inadmissible as being time-barred.","42.Furthermore, the Government submitted that the applicants had complained about the same facts in Turkey, Michael Tekin\u2019s country of origin, and that that complaint had given rise to letters rogatory addressed to the Belgian Public Prosecutor\u2019s Office by the Turkish public prosecutor of the town of Sivas. On 6May 2015 the Belgian authorities had allegedly sent a scanned copy of the criminal case file to the Turkish judicial authorities.","The applicants, however, denied ever having brought proceedings in Turkey.","..."],"51":["5.The applicant was born in 1961 and lives in R\u012bga.","6.She worked as an accountant in a building management company (namu p\u0101rvalde) from 1989. From the beginning of 1997 she also fulfilled the duties of a cashier and she was fully responsible for any shortfall in the material assets (materi\u0101l\u0101s v\u0113rt\u012bbas) entrusted to her.","A.Pre-trial proceedings","7.On 9 December 1997 the applicant\u2019s colleagues reported to the police that illicit cash withdrawals from the company\u2019s cash registers had been made. Allegedly, the withdrawals had been made by the applicant and her colleague, B.E., by means of annulling the records of cash transactions and then taking the money received in respect of those transactions from the cash register.","8.Internal and external audits were carried out and it was discovered that certain data in the company\u2019s cash registers had been manipulated. Specific amounts of cash and dates were noted in the audits, as well as the customer numbers in respect of which this manipulation had been executed. It was later established that the data had been manipulated in order to conceal illicit cash withdrawals. Further internal and external audits were carried out in 1999 and 2001.","9.On 15 January 1998 the applicant gave a written explanation (paskaidrojums) to a police inspector. The applicant testified that she had annulled three cash transactions and made three cash withdrawals in the amount of 1,228Latvian lati (LVL \u2013 approximately 1,747 euros (EUR)). She had done so at the request of the deputy head of the company and had handed the cash over to him. As concerns the remainder of the missing cash, she stated that she had not taken it. Nor had she annulled any other cash transactions.","10.On 16 January 1998 the police inspector issued a decision to institute criminal proceedings (l\u0113mums par krimin\u0101llietas ierosin\u0101\u0161anu) in respect of \u201cthe misappropriation of funds in the amount of LVL 7,559 [approximately EUR10,756] carried out by the applicant and B.E. by annulling records of cash transactions\u201d. The applicant was not informed of this decision at that time. Instead, she was issued a summons to talks (p\u0101rrunas) and she was interviewed on 16 January 1998. A witness statement record (liecinieka nopratin\u0101\u0161anas protokols) was drawn up. The applicant was informed of the rights and obligations of witnesses, as stipulated by Article 53 of the Criminal Procedure Code (Krimin\u0101lprocesa kodekss, see paragraph24 below); she was also informed that if she refused to testify or gave false testimony she would incur criminal liability. The applicant repeated that she had annulled only three cash transactions and had made only three cash withdrawals. She had handed the cash over to the deputy head.","11.According to the applicant she appeared at the police station on 16January 1998, accompanied by a lawyer whom she had authorised to represent her. Her request to be represented by the lawyer was refused \u2013 she was told that her status was that of a witness and that witnesses were not entitled to legal assistance. The Government contested the applicant\u2019s submission, as there was no mention of this in the witness statement record; the Government stated that the applicant had signed the record and had made no remarks.","12.In the following years the applicant was interviewed as a witness five more times: on 21 Januaryand 14 December 1999, 13February 2002, and 6January and 11November 2004. Her rights and obligations as a witness \u2013 as well as the fact that she would render herself criminally liable if she refused to testify or gave false testimony \u2013 were explained to her (reference was made to Article 53 of the Criminal Procedure Code, see paragraph 24 below); no mention of any right to legal assistance was made. She reiterated that she had annulled only three cash transactions and had made only three cash withdrawals. She had handed the cash over to the deputy head of the company. She furthermore added that she had already repaid to the company approximately LVL1,228(approximately EUR1,747).","13.A confrontation (konfront\u0101cija) was also held between the applicant and B.E. on 27January 1999 and with the deputy head of the company on 28January 1999, who were also considered witnesses. Another confrontation between the applicant and the chief accountant was scheduled to take place on 24 May and 20June 2002, but neither of them attended.","14.In 2000, 2001 and 2002 the police considered the case material to be sufficient for bringing charges against the applicant and referred the case to the prosecutor\u2019s office. However, several prosecutors identified various shortcomings in the investigation and transferred the case back to the police for additional investigation.","15.The identified shortcomings included the following aspects.","First, the criminal case material was found to be insufficient to establish guilt and therefore no charges could be brought. Serious breaches of the Criminal Procedure Code and other regulations were found. The criminal case material had contained uncertified copies of documents, missing pages of explanations and incomplete procedural records. In addition, the audits had not been carried out in accordance with law. Another audit had to be commissioned and more witnesses had to be questioned.","Second, there had been discrepancies in the total amount of missing cash and it was impossible to establish that a crime had been committed or to bring charges against anyone. The audit had to be carried out by a certified auditor.","A conclusion was made that the pre-trial investigation had been deficient, chaotic and had been carried out aimlessly. Moreover, the role of the chief accountant and the deputy head of the company in the cash withdrawals had not been properly investigated.","16.The police carried out further investigative measures \u2013 they commissioned another audit, collected further evidence, and questioned more witnesses (including the head, the deputy head, and the chief accountant of the company, as well as some of its customers).","17.On 20 January 2005 the police referred the case to the prosecutor\u2019s office for the fourth time. This time the case material was deemed sufficient for charges to be brought and, on 27January 2005, the applicant was officially charged with nineteen episodes of misappropriation of funds. She thus became an accused person (aps\u016bdz\u0113t\u0101 persona) in the criminal proceedings against her and was informed of her right to have a lawyer. A preventive measure \u2013 a prohibition on her changing her place of residence, which she had to acknowledge by giving her signature (paraksts par dz\u012bves vietas nemain\u012b\u0161anu) \u2013 was imposed on her. On 26 May 2005 the charges were slightly amended in respect of the total amount of misappropriated funds.","18.On 27January, 3 February, 26 May and 5 September 2005 the applicant was questioned as an accused person. On two occasions (on 27January and on 26 May 2005) the applicant stated that a lawyer\u2019s presence was not necessary. On another occasion (on 3 February 2005) she stated that she would continue giving testimony without the presence of a lawyer. No remarks were made regarding the absence of a lawyer during the questioning of 5 September 2005. The applicant was given access to the criminal case file in order that she could acquaint herself with its contents. She subsequently requested that further investigative measures be taken. Some requests for further investigative measures were granted and some were refused.","19.On 5September 2005 the final bill of indictment was served on the applicant (uzr\u0101d\u012bta gal\u012bg\u0101 aps\u016bdz\u012bba) in the presence of a lawyer. The total amount of misappropriated funds was again slightly amended. On 21October 2005 other preventive measures \u2013 a prohibition on leaving the country and the obligation to reside at a particular place of residence (uztur\u0113\u0161an\u0101s noteikt\u0101 dz\u012bvesviet\u0101) \u2013 were imposed on the applicant. On the same date the prosecutor\u2019s office forwarded the case file to the Riga Regional Court (R\u012bgas apgabaltiesa).","B.Court proceedings","20.On 23 October 2006 the first hearing was held. On 20November 2006 the Riga Regional Court convicted the applicant of nineteen episodes of misappropriation of property that had been entrusted to her. The applicant did not admit her guilt. She agreed that she had annulled three cash transactions and made three cash withdrawals in the amount of LVL1,228 (approximately EUR 1,747), but stated that she had done so at the request of the chief accountant and the deputy head of the company with a view to paying out salaries. As concerns other cash transactions, she had not annulled those. The court, relying on witness testimony and other case material (the results of three audits, the electronic cash register records, the relevant bills and receipts, the respective employment agreements etc.), convicted the applicant. The court did not rely on the applicant\u2019s statements made during the pre-trial investigation.","21.The applicant was given a three-year suspended prison sentence, with three years\u2019 probation (a more lenient sentence than the minimum provided by law). In setting the sentence the court took into account her state of health, the fact that she had partly compensated the company for the damage in question, and the fact that she had committed the crime nine years previously and that since then she had not committed any other crimes. The applicant lodged an appeal on 2 December 2006.","22.The first appellate hearing was scheduled for 15 August 2007. On 17August 2007 the Criminal Chamber of the Supreme Court (Augst\u0101k\u0101s tiesas Krimin\u0101llietu tiesu pal\u0101ta) quashed the applicant\u2019s conviction for lack of evidence in respect of five episodes of misappropriation of property. The applicant\u2019s sentence was reduced to a two-year suspended prison sentence, with one year\u2019s probation. In setting the sentence the court took into account the significantly lower number of episodes for which the applicant had been convicted, the fact that a particularly long period of time had elapsed since the commission of the crime, and the fact that there was no indication that she had committed any other crimes since then. The applicant lodged an appeal on points of law on 18 October 2007.","23.On 29November 2007 the Senate of the Supreme Court (Augst\u0101k\u0101s tiesas Sen\u0101ts) dismissed the applicant\u2019s appeal on points of law. The Senate indicated that the former Criminal Procedure Code (which had been in force in January 2005, when the charges had been brought against the applicant) had not excluded that a person could have the procedural status of a witness while a pre-trial investigation was in progress and could only be officially charged once there was sufficient evidence concerning that person\u2019s guilt."],"52":["1. The first applicant, Ms \u017divkovi\u0107, was born on 1 October 1951 in Gornje Romanovce, Serbia. The second applicant, Mr Mihajlovi\u0107, was born on 18 September 1948 in Pejkovac, Serbia. The third applicant, Ms Petrovi\u0107, was born on 6 February 1960 in Studenac, Serbia. The fourth applicant, Mr \u017divkovi\u0107, was born on 19 May 1951 in Surdulica, Serbia. All four applicants are currently nationals of the Republic of Serbia and reside in the places indicated in the appended table.","2. The applicants were represented before the Court by Mr I. Stan\u010devski, a lawyer practising in Ni\u0161, Serbia.","A. The circumstances of the case","3. The facts of the case, as submitted by the applicants, may be summarised as follows.","1. The general context","4. Before 25 June 1991, the date on which the Republic of Slovenia declared its independence, the applicants were all nationals of both the Socialist Federal Republic of Yugoslavia (\u201cthe SFRY\u201d) and of the Socialist Republic of Serbia, one of its constituent republics. As nationals of the SFRY, they had acquired the status of permanent residents in Slovenia. They belong to a group of persons known as the \u201cerased\u201d ( izbrisani ), former nationals of the SFRY with permanent residence in Slovenia whose names were deleted from the Register of Permanent Residents on 26 February 1992 or on subsequent dates (see paragraphs 17, 22, 28 and 33 below).","5. The Court examined the \u201cerasure\u201d of such former permanent residents in Slovenia in the pilot case of Kuri\u0107 and Others v. Slovenia ((merits) [GC], no. 26828\/06, ECHR 2012). The Grand Chamber held unanimously that there had been a violation of the applicants \u2019 rights, as guaranteed by Articles 8, 13 and 14 of the Convention. The violation essentially originated in the prolonged failure of the Slovenian authorities, in spite of leading judgments from the Constitutional Court, to regularise the applicants \u2019 residential status following their \u201cerasure\u201d and to provide them with adequate redress in Slovenia (ibid., \u00a7\u00a7 339-362, 369-372 and 384-396). Under Article 46 of the Convention, the Grand Chamber ordered the respondent State to set up as a general measure a domestic ad hoc compensation scheme within one year of the delivery of its judgment, that is to say no later than 26 June 2013 (ibid., \u00a7 415 and point 9 of the operative part).","6. For more details of the general context see Kuri\u0107 and Others ((merits), cited above, \u00a7\u00a7 16-83), and Anastasov and Others v. Slovenia ((dec.), no. 65020\/13, \u00a7\u00a7 6-10, 18 October 2016).","2. The current legislative framework in the Republic of Slovenia","7. In the course of the proceedings in the Kuri\u0107 and Others case, amendments and supplements to the Act on the Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in Slovenia ( Zakon o spremembah in dopolnitvah Zakona o urejanju statusa dr\u017eavljanov drugih dr\u017eav naslednic nekdanje SFRJ v Republiki Sloveniji \u2013 \u201cthe amended Legal Status Act\u201d) were passed. They entered into force on 24 July 2010. The deadline for filing requests for permanent residence permits expired on 24 July 2013 (see Anastasov and Others, decision cited above, \u00a7 8).","8. Section 1 of the amended Legal Status Act applied to aliens who had been citizens of other former SFRY republics on 25 June 1991, had been registered as permanent residents in Slovenia on 23 December 1990 and had \u201cactually resided\u201d there since then. It also applied to aliens who had been residing in Slovenia on 25 June 1991 and had \u201cactually resided\u201d there since without interruption. Both conditions were valid regardless of the provisions of the Aliens Act. The Act provided for the acquisition of both ex nunc and ex tunc permanent residence permits for those \u201cerased\u201d who fulfilled the statutory conditions.","9. In particular, section 1(\u010d) defined the meaning of the words \u201cactually residing\u201d in Slovenia \u2013 which was one of the conditions for obtaining permanent residence status \u2013 as a situation where the person had the centre of his or her life interests in Slovenia, this being determined on the basis of personal, family, economic, social and other ties demonstrating the existence of actual and permanent connections between the individual and Slovenia. The condition of \u201cactually residing\u201d in Slovenia was deemed to be fulfilled if a person was absent from Slovenia for a period of no longer than one year, regardless of the grounds for absence.","10. Section 1(\u010d) further provided that the condition of \u201cactually residing\u201d could also be met in cases of justifiable absence for more than a year (absence as a consequence of the \u201cerasure\u201d, forced removal from Slovenia, impossibility of returning because of the state of war in other successor States of the SFRY, and so forth). In such circumstances, the condition of \u201cactually residing\u201d could be satisfied for a period of five years, and for a further five years only if the person \u2019 s actions indicated that he or she had tried to return to Slovenia and continue living there (see Kuri\u0107 and Others (merits), cited above, \u00a7\u00a7 76-79 and paragraph 38 below).","11. Finally, in the framework of the execution of the Kuri\u0107 and Others pilot judgment, the Act on Compensation for Damage to Persons Erased from the Register of Permanent Residents ( Zakon o povra\u010dilu \u0161kode osebam, ki so bile izbrisane iz registra stalnega prebivalstva \u2013 \u201cthe \u2018 Erased \u2019 Compensation Act\u201d) was enacted on 21 November 2013 by the Slovenian Parliament. It entered into force on 18 December 2013 and has been applicable since 18 June 2014.","12. The beneficiaries of the scheme are those \u201cerased\u201d who have acquired a permanent residence permit, on any legal grounds, or have been granted Slovenian citizenship. It also includes those \u201cerased\u201d who had made an unsuccessful application to that effect under the previous legislation (that is to say prior to the enactment of the amended Legal Status Act), subject to certain conditions. Any claims for compensation have to be lodged by 18 June 2017, or after receipt of the decision on permanent residence or Slovenian citizenship, or the final negative decision under the previous legislation (see Anastasov and Others, decision cited above, \u00a7\u00a7 18-19).","3. The execution of the pilot judgment and the final Resolution of the Committee of Ministers","13. On 25 May 2016 the Committee of Ministers of the Council of Europe adopted Resolution CM\/ResDH(2016)112 in the pilot case of Kuri\u0107 and Others (\u201cthe 2016 CM Final Resolution\u201d) under the terms of Article 46 \u00a7 2 of the Convention. After satisfying itself that both the general and individual measures required by Article 46 \u00a7 1 had been adopted by the Respondent State, the Committee of Ministers declared that it had exercised its functions under Article 46 \u00a7 2 and decided to close its examination of the case.","14. For a more detailed summary of the 2016 CM Final Resolution see Anastasov and Others (decision cited above, \u00a7\u00a7 25-32).","4. The closure of the pilot judgment procedure","15. On 18 October 2016 the Court (Fourth Section) held that the matter giving rise to applications against Slovenia from \u201cerased\u201d applicants who had regularised their legal status \u201cha[d] been resolved\u201d for the purposes of Article 37 \u00a7 1(b) of the Convention and that it was no longer justified to continue the examination of those cases. It thus decided to strike one such application out of its list of cases (ibid., \u00a7\u00a7 97-103).","5. The particular circumstances of the present cases","16. All the applicants in the present case left Slovenia after their \u201cerasure\u201d and applied for permanent residence permits under section 1 of the amended Legal Status Act, with section 1(\u010d) being applicable owing to their prolonged absence from Slovenia (see paragraphs 9 - 10 above and 19, 24 - 25, 30 and 35 below). None of the applicants has succeeded in regularising his or her legal status in Slovenia.","(a) Ms Jelka \u017divkovi\u0107 (applicant in application no. 42670\/16)","17. The applicant moved to Slovenia in 1973 and started working in Kranj. She was registered as a permanent resident in that town from 3 May 1984 to 26 February 1992.","18. According to her, she and her family started to experience problems because of their Serbian nationality in 1992. In June 1992 she returned their flat to the Municipality of Kranj and in July she and her family left Slovenia and moved to Serbia. Because of the threats in Slovenia, she enrolled the children in school in Serbia, where they continued their education. The applicant returned to Slovenia only once after that for a private visit; however, her sons went on visits there regularly. She stated that she had attempted to resolve her residence status in Slovenia but her friends had told her that she had not been able to regain her residence status.","19. On 25 July 2013 the applicant lodged a request with the Kranj Administrative Unit for the regularisation of her status as a permanent resident under section 1 of the amended Legal Status Act. On 9 October 2013 she was questioned by the consular service of the Embassy of Slovenia in Belgrade. After questioning witnesses, the Administrative Unit rejected the applicant \u2019 s request on 30 April 2014. It found that she had proven that her leaving Slovenia had been the result of \u201cerasure\u201d. However, she had failed to prove under any of the grounds under section 1(\u010d) that she had tried to return to Slovenia after being absent for five years (see paragraph 38 below). The Ministry of the Interior (hereinafter \u201cthe Ministry\u201d) confirmed the decision on 3 September 2014.","20. The applicant challenged the decision by instituting proceedings before the Administrative Court, but it dismissed her action on 6 January 2016.","21. On 22 February 2016 the applicant lodged a constitutional complaint, arguing, inter alia, that she had complied with the admissibility criteria as no other remedy, either ordinary or extraordinary, existed. The Constitutional Court rejected the constitutional complaint on 20 April 2016 for failure to properly exhaust legal remedies, relying on its case-law (see paragraph 40 below).","(b) Mr \u017divojin Mihajlovi\u0107 (applicant in application no. 43334\/16)","22. The applicant moved to Slovenia in 1966. He was registered as a permanent resident at various addresses in Slovenia from 21 September 1973 to 22 February 1993.","23. According to him, he left Slovenia after receiving threats and moved back to Serbia on 7 July 1991. In 1997 or 1998, when he returned to Slovenia for the first time and attempted to register at his aunt \u2019 s address, he found out that he had been \u201cerased\u201d. He made no further attempts to obtain a permanent residence permit. He had no proof that he had asked for several visas as he had been given no written reply. His family remained in Slovenia and his wife has Slovenian citizenship.","24. On 17 July 2013 the applicant lodged a request with the Dom\u017eale Administrative Unit, asking that his permanent residence status be regularised under section 1 of the amended Legal Status Act. On 17 September 2013 the applicant had an interview at the consular service of the Embassy of Slovenia in Belgrade. At the applicant \u2019 s suggestion, the applicant \u2019 s wife and aunt were questioned by the Administrative Unit. On 22 October 2014 the applicant \u2019 s request was dismissed given that none of the conditions of section 1(\u010d) had been fulfilled (see paragraph 38 below).","25. The Administrative Unit considered that after July 1991 the applicant \u2019 s centre of living interests had been in Serbia and not in Slovenia. He had also failed to prove that he had attempted to return to Slovenia in the years prior to 1998. In addition, he had never initiated proceedings to obtain permanent residence status. The decision was confirmed by the Ministry on 26 January 2015.","26. The applicant challenged the decision before the Administrative Court, but on 22 October 2015 the latter dismissed his action.","27. On 26 November 2015 the applicant lodged a constitutional complaint, arguing, inter alia, that he had complied with the admissibility criteria as no other remedy, either ordinary or extraordinary, existed. On 12 April 2016 the Constitutional Court, relying on its previous case-law (see paragraph 40 below), rejected the constitutional complaint for non \u2011 exhaustion of available remedies as the applicant had not lodged an appeal on points of law ( revizija ).","(c) Ms Ljiljana Petrovi\u0107 (applicant in application no. 43381\/16)","28. The applicant moved to Slovenia in 1979 and started working in Kranj. She was registered as a permanent resident there from 21 September 1984 to 26 February 1992.","29. According to the applicant, she and her family started to experience difficulties because of their Serbian nationality in 1991. Sometime that year she and her family left Slovenia on vacation, but were unable to return. They had intended to return in February or March 1992, but were told by friends that they could not because they had been \u201cerased\u201d. Afterwards, the family lived in Serbia and did not try to return to Slovenia. The applicant alleged that she sought a visa on several occasions; however, she has no written evidence in this regard. She has a sister and friends living in Slovenia.","30. On 25 July 2013 the applicant lodged a request with the Kranj Administrative Unit, asking that her permanent residence status be regularised under section 1 of the amended Legal Status Act. On 14 October 2013 she was interviewed by the consular service of the Embassy of Slovenia in Belgrade. Several witnesses were questioned by the Administrative Unit. On 5 May 2014 the applicant \u2019 s request was dismissed. The Administrative Unit considered that the applicant had proven that her leaving Slovenia had been a result of \u201cerasure\u201d; however, she had failed to prove under any of the grounds under section 1(\u010d) that she had tried to return to Slovenia after being absent for five years (see paragraph 38 below). On 24 July 2014 the decision was confirmed by the Ministry.","31. The applicant challenged the decision before the Administrative Court, which dismissed her action on 5 November 2015.","32. On 2 December 2015 the applicant lodged a constitutional complaint, arguing that she had complied with the admissibility criteria as no other remedy, either ordinary or extraordinary, existed. On 20 April 2016 the Constitutional Court rejected the constitutional complaint for non-exhaustion of the available legal remedies (see paragraph 40 below).","(d) Mr Toplica \u017divkovi\u0107 (applicant in application no. 43393\/16)","33. The applicant, who is the husband of Ms Jelka \u017divkovi\u0107 (the applicant in application no. 42670\/16 \u2013 see paragraphs 17-21 above), moved to Slovenia in 1972 and started working in Kranj. He was registered as a permanent resident there from 3 May 1984 to 26 February 1992.","34. According to him, he and his family started to experience problems because of their Serbian nationality in 1992. In July of that year he left Slovenia with his family and moved to Serbia. He stated that he tried to return to Slovenia on several occasions but lacked the financial means to do so. He was employed in Serbia, while his sons visited Slovenia regularly.","35. On 25 July 2013 the applicant lodged a request with the Kranj Administrative Unit, asking that his permanent residence status be regularised under section 1 of the amended Legal Status Act. On 9 October 2013 the applicant was interviewed by the consular service of the Embassy of Slovenia in Belgrade. Some witnesses were questioned by the Administrative Unit, which found that the applicant had proven that he had left Slovenia as a result of the \u201cerasure\u201d. However, he had failed to prove under any of the grounds under section 1(\u010d) that he had tried to return to Slovenia after being absent for five years (see paragraph 38 below). The applicant \u2019 s request was dismissed on 30 April 2014, a decision which was confirmed by the Ministry on 5 September 2014.","36. The applicant challenged the decision before the Administrative Court but on 2 December 2015 it dismissed his action.","37. The applicant lodged a constitutional complaint, arguing, inter alia, that since no other remedy existed, either ordinary or extraordinary, he had complied with the admissibility criteria. On 8 April 2016 the Constitutional Court rejected the constitutional complaint for non-exhaustion of the available remedies (see paragraph 40 below).","B. Relevant domestic law and practice","1. The amended Legal Status Act","38. On 24 July 2011 the amended Legal Status Act (Official Gazette no. 50\/2010) came into force. Section 1(\u010d) of the Act provided:","\u201cActually residing in the Republic of Slovenia for the purposes of this Act shall mean that an individual has the centre of his or her life interests in the Republic of Slovenia, this being determined on the basis of his or her personal, family, economic, social and other ties demonstrating the existence of actual and permanent connections between an individual and the Republic of Slovenia. Justifiable absence from the Republic of Slovenia because of reasons referred to in the third subsection of this section shall not mean an interruption of actual residence in the Republic of Slovenia.","The condition of actual residence in the Republic of Slovenia shall be met if the person left the Republic of Slovenia and his or her continuous absence was not longer than one year, irrespective of the reason for the absence.","The condition of actual residence in the Republic of Slovenia shall also be met in the event that the absence was longer than one year but was justifiable for the following reasons:","- if the person left the Republic of Slovenia as a consequence of removal from the Register of Permanent Residents;","- if the person left the Republic of Slovenia because he or she was assigned to work, study or undergo medical treatment by a legal entity from the Republic of Slovenia or, in the case of a minor, by his or her parents or guardians, or if the person was an employee on a ship with a home port in the Republic of Slovenia, during the period of posting, study or treatment or the period of employment on the ship;","- if the person left the Republic of Slovenia because he or she could not acquire a residence permit in the Republic of Slovenia owing to non-fulfilment of the relevant conditions and the application for a permit was rejected or dismissed or the procedure was terminated;","- if the person could not return to the Republic of Slovenia because of the state of war in other successor States to the former Socialist Federal Republic of Yugoslavia, or for medical reasons;","- if the person was expelled from the Republic of Slovenia pursuant to section 28 ... or section 50 of the Aliens Act ..., unless the person was an alien expelled from the country as a sanction for having committed a criminal offence;","- if the person was refused entry to the Republic of Slovenia, except where entry was refused because of the imposition of a secondary sanction of expulsion for having committed a criminal offence ...","If the absence for reasons referred to in the preceding subsection, except for those referred to in the second indent, lasted more than five years, it shall be deemed that the condition of actual living is satisfied for the period of five years and for a further period of five years only if the conduct of the person demonstrates that, during the period of absence, the person tried to return to the Republic of Slovenia and to continue his or her actual residence there.","For the purposes of this Act, a permanent residence permit or a specific decision on a retroactive permanent residence permit and registered permanent residence or a supplementary decision issued pursuant to point 8 of the Constitutional Court decision ..., no U-1-246\/02-28 of 3 April 2003 ... shall not mean that the condition of actual residence in the Republic of Slovenia in proceedings initiated under the Citizenship of the Republic of Slovenia Act is met.\u201d","2. The Administrative Disputes Act","39. The Administrative Disputes Act ( Zakon o upravnem sporu, Official Gazette no. 105\/2006), which entered into force on 1 January 2007, provides in section 83 the grounds on which an appeal on points of law ( revizija ) can be lodged with the Supreme Court in order to challenge a first-instance judgment. The grounds are provided as alternatives. The relevant text reads as follows:","\u201c(2) An appeal on points of law is admissible if:","...","2. it concerns an important legal question ...;","3. the impugned decision has serious consequences for the party;","...\u201d","3. Case-law of the Constitutional Court","40. The Constitutional Court noted on 18 December 2007 (Up-2394\/07), in a case brought by a plaintiff in an administrative dispute, that the Administrative Disputes Act of 2007 had reintroduced the appeal on points of law ( revizija ) into administrative proceedings as an extraordinary legal remedy in disputes against decisions which were not subject to appeal before the Higher Administrative Court. The Constitutional Court rejected the constitutional complaint in that case for non-exhaustion, given that the plaintiff had failed to lodge an appeal on points of law with the Supreme Court."],"53":["5.The applicant was born in 1933 and lives in Ajdov\u0161\u010dina. She is the mother of Branko \u0160tefan\u010di\u010d, born in 1961. Mr \u0160tefan\u010di\u010d suffered from paranoid schizophrenia and depression and had been admitted to the Idrija Psychiatric Hospital on several occasions. In 2007 he lodged an extensive criminal complaint, alleging that he had suffered various injustices at the hands of his work colleagues, acquaintances, the police and other organisations. Upon examining the complaint, the Nova Gorica State Prosecutor\u2019s Office decided not to pursue it. In June 2008 Mr \u0160tefan\u010di\u010d started to telephone the Prosecutor\u2019s Office and go there in person on an almost daily basis. He made various delusional accusations regarding murders that had gone unpunished \u201csince the age of Christ\u201d.","A.Circumstances of Mr \u0160tefan\u010di\u010d\u2019s death","6.On 19 June 2008 Mr \u0160tefan\u010di\u010d appeared at the Nova Gorica State Prosecutor\u2019s Office, and was told by the receptionist that the office was closed that day. He replied that he would come back the next day, armed, and that nobody would be able to hide from him. Having been told about Mr\u0160tefan\u010di\u010d\u2019s threats, the Head of the Nova Gorica State Prosecutor\u2019s Office, B.O., telephoned the Idrija Psychiatric Hospital and told the staff what had happened. She was told that Mr \u0160tefan\u010di\u010d was mentally ill and had already been treated in the hospital several times. She was further advised to contact the Ajdov\u0161\u010dina Community Health Centre and suggest that a referral be made for Mr \u0160tefan\u010di\u010d\u2019s involuntary confinement. In addition, B.O. was warned by Mr \u0160tefan\u010di\u010d\u2019s consulting psychiatrist that over the past few weeks his patient had threatened to kill several people, including his doctor, mother and sisters. In view of this, the psychiatrist had assessed that Mr\u0160tefan\u010di\u010d was dangerous and in need of treatment, and added that he should be taken seriously due to his physical strength. B.O. also called the Nova Gorica police and told them about Mr \u0160tefan\u010di\u010d\u2019s visits to the Prosecutor\u2019s Office.","7.At 5.30 p.m. a doctor from the health centre telephoned the Ajdov\u0161\u010dina police station to request police assistance with Mr \u0160tefan\u010di\u010d\u2019s involuntary confinement on the grounds that he could become aggressive. She later took the request for his police-assisted transport and the order for his confinement to the police station in person.","8.At 5.55 p.m. the duty officer submitted the request to the commander of the police station, who granted it immediately.","9.At 6 p.m. officer J.T. from the Ajdov\u0161\u010dina police station set off to the applicant\u2019s house and found her son, who was living there, at home. He informed officers at the Nova Gorica police communications centre, and they informed the health centre staff that they could proceed with the involuntary confinement. Police officer J.T. remained at the scene until health centre medical staff consisting of B.A., the doctor on duty, and S.M. and I.P., medical technicians, arrived. Also sent to the scene were D.K., a second officer from the Ajdov\u0161\u010dina police station, police officer dog handlerJ.K., and two traffic officers of the Nova Gorica traffic police.","10.According to the police report of 31 July 2008 based on the statements made by the police officers and medical staff, upon their arrival at around 8 p.m. the police officers and medical technicians first talked to the applicant, who was sitting on a bench at the back of her house. They asked her whether her son was in the house and whether he was armed. She replied that her son was indeed in the house and was on the telephone. She further explained that she was not aware of him possessing any firearms. The medical team informed the applicant why they were there and then entered the house, while the police officers remained at the front door.","11.Dr B.A. informed Mr \u0160tefan\u010di\u010d that they were going to take him to a psychiatric hospital, but he refused to go with them. The medical team attempted to persuade him, but he became agitated and verbally aggressive. The police officers warned him that he would be taken to the hospital by force if he refused to go of his own free will.","12.The medical technicians attempted to take hold of Mr\u0160tefan\u010di\u010d\u2019s arms, but he pushed them off and started to scream. Dr B.A. then instructed the police officers to handcuff him, but when J.T. and D.K. attempted to restrain him, he resisted forcefully and pushed them off. In response, the police officers used physical force in order to push him to the ground, and J.K. ordered a muzzled dog on a leash to jump at him. As Mr \u0160tefan\u010di\u010d did not seem to react to the dog jumping at his chest, J.K. took it back to the police car. J.T. and D.K. meanwhile continued to use physical force and managed to wrestle Mr \u0160tefan\u010di\u010d to the ground onto his back.","13.The two police officers were then joined by dog handler J.K., who used the \u201crear chokehold\u201d technique on Mr \u0160tefan\u010di\u010d. Together they managed to put him into the recovery position and medical technician S.M. injected Haldol (an antipsychotic drug with tranquilising effects) into his buttocks. As Mr \u0160tefan\u010di\u010d continued to resist, they could not administer the full dose of medication to him. The police officers then turned him onto his stomach, and J.T. handcuffed his hands behind his back. Medical technician I.P. injected him with Akineton, medication used on psychiatric patients to reduce the tremors caused by antipsychotic drugs.","14.Mr \u0160tefan\u010di\u010d calmed down as soon as he received the second dose of medication. A few moments later, the police officers and medical technicians noticed that there was a brown palm-sized pool of liquid under his head. They alerted Dr B.A., who established that Mr \u0160tefan\u010di\u010d had vomited and assessed that it could have been attributed to exertion. However, when one of the medical technicians checked Mr \u0160tefan\u010di\u010d again, he detected an irregular heartbeat, and again called out to the doctor. The medical team began to resuscitate him at 8.10 p.m. The police officers attempted to unlock his handcuffs, but only managed to free one of his hands, before the key broke.","15.The applicant, who was waiting outside during the intervention, was heading to the front of the house when she heard loud noises and a dog barking. When she approached the front door, she saw Dr B.A. massaging her son\u2019s chest. She asked the police officers what was going on, to which one of them replied that they were resuscitating her son. Another ambulance arrived at the scene at 8.42 p.m., and an electrocardiogram was performed on Mr \u0160tefan\u010di\u010d, but to no avail. At 8.45 p.m. Dr B.A. pronounced him dead. He attributed the death to a heart attack or stroke.","B.Preliminary inquiry into the death of Mr \u0160tefan\u010di\u010d","16.Immediately after Mr \u0160tefan\u010di\u010d\u2019s death, the officers from the Ajdov\u0161\u010dina police station notified the Nova Gorica police communications centre of the incident and secured the area. The duty State prosecutor and the duty investigating judge of the Nova Gorica District Court were also notified of the death. The investigating judge attended the scene and ordered a forensic examination of the body. The medical file and equipment used in his resuscitation were also seized.","17.On 20 June 2008 police officers D.K., J.T. and J.K. made records of the methods of restraint they had used on Mr \u0160tefan\u010di\u010d (physical force, handcuffs and the police dog), which were confirmed by their superior officers to have been lawful.","1.Statements of the applicant and the intervention team","18.In the days after the incident, an officer of the Nova Gorica police took statements from the police officers and medical staff involved in the incident, as well as from the applicant.","19.The applicant stated that on the evening of 19 June 2008 several police cars and an ambulance drove to the house and an officer asked her whether her son was keeping firearms. She replied that he was not, as far as she was aware. The applicant remained outside during the intervention and could not remember exactly how the events unfolded. She heard screaming, but was afraid to go inside. Sometime later she looked into the hallway and saw her son lying on the floor, surrounded by Dr B.A. and the medical technicians. She asked them what was going on, and they replied that they were resuscitating her son. She noticed that he had vomited.","20.D.K. and J.T., police officers, stated that upon entering the house, Mr \u0160tefan\u010di\u010d, who appeared to be talking on the telephone, told the medical technicians that he would not go with them, and D.K. and J.T. then warned him that they would use force if necessary. Dr B.A. also tried to convince him to go with them without success and he then instructed the officers to handcuff him. D.K. and J.T. took him by the arms to lead him to the ambulance but he resisted strongly. Dog handler J.K. attempted to calm him down by ordering the police dog to jump at him but Mr \u0160tefan\u010di\u010d did not react to the dog\u2019s attack. The officers struggled to wrestle him to the ground and eventually succeeded in pushing him to the ground on his back; they then turned him onto his stomach, but he continued to resist forcefully. Dog handler J.K. then used the so-called \u201crear chokehold\u201d technique on him, and together they managed to turn him onto his side. One of the medical technicians then administered the first dose of medication to him, whereupon he was again turned onto his stomach and handcuffed with his hands behind his back. The second dose of medication was then administered to him and he calmed down.","21.After Mr \u0160tefan\u010di\u010d received the second dose of medication, D.K. noticed a brown palm-sized pool of liquid under his head. Somebody mentioned that it was vomit and D.K. then asked if that was right. DrB.A. was on the telephone arranging for Mr \u0160tefan\u010di\u010d\u2019s transport to the psychiatric hospital but upon hearing D.K.\u2019s question checked Mr \u0160tefan\u010di\u010d and said that the vomiting was due to exertion. J.T. confirmed that Dr B.A. initially said that Mr \u0160tefan\u010di\u010d was okay and vomited from exertion but added that the doctor did not check Mr \u0160tefan\u010di\u010d\u2019s pupils or pulse. Then one of the medical technicians looked at Mr \u0160tefan\u010di\u010d again and checked his pulse. He called out to the doctor, saying that something was not right as he was breathing irregularly. Officer J.T. then attempted to unlock the handcuffs, and managed to get the one on his right hand off before the key broke. The medical staff started to resuscitate him. The whole incident, from the beginning of the police intervention until the beginning of the resuscitation procedure, only lasted a few minutes, five at the most.","22.J.K., a police dog handler, confirmed that he had first joined the intervention by ordering the police dog, which was muzzled, to jump at Mr\u0160tefan\u010di\u010d, who, however, made no attempt to shake the dog off or to withdraw from the attack. Therefore J.K. took the dog back to his car and then returned to the house, where officers D.K. and J.T. were not able to turn Mr\u0160tefan\u010di\u010d onto his stomach. J.K. helped them by holding him in a rear chokehold and together they managed to turn him onto his stomach and handcuff him. As this was going on, one of the medical technicians injected medication into his buttocks. J.K. also confirmed his colleagues\u2019 accounts as to how the resuscitation of Mr \u0160tefan\u010di\u010d proceeded after it was discovered that he had vomited.","23.I.P., a medical technician, stated that on his arrival, he first asked the applicant a few questions and then entered her house with his colleague S.M. According to both medical technicians, Mr \u0160tefan\u010di\u010d pretended to be speaking on the telephone. I.P. explained to him that he was being taken to the psychiatric hospital to see a psychiatrist. Mr \u0160tefan\u010di\u010d refused to go and Dr B.A. ordered him to be handcuffed. As regards the events that ensued concerning the use of force by the police officers, I.P.\u2019s statement matched the statements of police officers D.K., J.T. and J.K. (see paragraphs 20\u201122 above), while S.M. did not pay much attention to the police operation, as he was preparing a syringe of Haldol.","24.As soon as the police officers managed to wrestle Mr \u0160tefan\u010di\u010d to the ground and turn him onto his side, S.M. injected him with Haldol. S.M.added that because Mr \u0160tefan\u010di\u010d forcefully resisted, he could not administer the full dose of medication to him. He then left the house. While the police officers turned Mr \u0160tefan\u010di\u010d onto his stomach, I.P.administered the second injection into his buttocks and he calmed down. I.P. then noticed that he was not breathing or was struggling to breathe. As far as he could remember, he called out that Mr \u0160tefan\u010di\u010d was not breathing. Dr B.A. approached him and saw him take a breath, concluding that he was breathing. S.M., standing outside, stated that he had not seen when and how Mr \u0160tefan\u010di\u010d had started to vomit, but heard the exchange between his colleague and Dr B.A. The doctor then left the house and started to arrange Mr \u0160tefan\u010di\u010d\u2019s transport to the hospital. I.P. checked Mr \u0160tefan\u010di\u010d again and exclaimed that he was not breathing. Together with the police officers they turned Mr\u0160tefan\u010di\u010d onto his back and I.P. noticed that he was cyanotic. He also noticed traces of vomit on Mr \u0160tefan\u010di\u010d\u2019s face, so he first protected his airways. The police officers had by then removed the handcuffs from him. His colleague S.M., who confirmed that Mr \u0160tefan\u010di\u010d looked grey and had traces of vomit on his face, fetched the resuscitation kit from the ambulance. Together with Dr B.A. they had intubated him; however, even at the beginning of resuscitation, his pupils were dilated, which was also a bad sign. I.P. also stated that the whole incident, from the use of physical force on Mr\u0160tefan\u010di\u010d until the beginning of the resuscitation procedure, only lasted a few minutes, five at the most. I.P.\u2019s account was confirmed in substance by traffic officer M.D., who together with his colleague A.K. guarded the back entrance to the applicant\u2019s house and thus only heard part of the incident.","25.Medical technician S.M. expressed the view that the police officers might have used excessive force in dealing with Mr \u0160tefan\u010di\u010d. He added that though Mr\u0160tefan\u010di\u010d had refused to go to the psychiatric hospital, he had not been particularly aggressive, and above all, had not physically attacked anyone.","26.Dr B.A., a general practitioner, stated that Mr \u0160tefan\u010di\u010d\u2019s psychiatrist expected that he might behave aggressively so he received instructions to give him an injection of two ampoules of Haldol and one ampoule of Akineton. Although in the beginning of the intervention Mr\u0160tefan\u010di\u010d appeared agitated, but not aggressive, he started to resist forcefully when the police officers attempted to handcuff him.","27.According to Dr B.A., after Mr \u0160tefan\u010di\u010d was handcuffed and calmed down, he came out of the applicant\u2019s house and started to arrange his transport. One of the police officers then called out to him that something was not right, that Mr \u0160tefan\u010di\u010d had vomited and was having trouble breathing. He was immediately turned onto his back. DrB.A. noticed that Mr \u0160tefan\u010di\u010d had turned blue in the face and that he was wheezing. The medical team then started the resuscitation procedure, massaging his heart and intubating him, as well as administering 1 mg of adrenaline and 3 mg of atropine to him. However, as they did not have an electrocardiogram monitor or a defibrillator, another ambulance was called. By the time the second ambulance arrived at 8.42 p.m., they could only establish that Mr \u0160tefan\u010di\u010d had died.","2.Police report","28.On 21 July 2008 a criminal investigations officer of the Nova Gorica police obtained an oral preliminary report from the forensic pathologist who had performed the autopsy of Mr \u0160tefan\u010di\u010d. According to him, the deceased had most likely died of asphyxiation from inhaling gastric contents (choking on his own vomit). With regard to the question of potential liability for Mr\u0160tefan\u010di\u010d\u2019s death, he took the view that the asphyxiation occurred during the police intervention, and that the presence of a doctor could not have altered the course of events. He added that the doctor could only be accused of negligence if the death had occurred during the resuscitation, which in his opinion had not been the case.","29.On 31 July 2008 the head of the Nova Gorica police criminal investigations unit submitted a report of the incident to the Nova Gorica State Prosecutor\u2019s Office. Based on a statement provided by the forensic pathologist who conducted the forensic examination, the report stated asphyxiation from inhaling gastric contents as the cause of Mr \u0160tefan\u010di\u010d\u2019s death. As to the events leading to the death, the police report summarised the statements given by the intervention team and stated that Mr \u0160tefan\u010di\u010d had resisted the police officers who had tried to take him to the psychiatric hospital, whereupon physical force had been used on him. After Mr\u0160tefan\u010di\u010d had been restrained and had calmed down, the police officers and medical technicians had noticed that he had vomited. After Dr B.A. had initially assessed that this could be attributed to exertion, he had been found to have an irregular heartbeat and the medical team had tried to resuscitate him, but to no avail. As regards the question of potential liability for Mr\u0160tefan\u010di\u010d\u2019s death, the police report followed the forensic pathologist\u2019s opinion that he had died during the police intervention and that his death could not have been prevented by any medical assistance. The report concluded by saying that no facts had been established giving rise to a suspicion that a criminal offence had been committed in connection with the death of Mr \u0160tefan\u010di\u010d which warranted criminal prosecution.","3.Forensic report","30.On 10 September 2008 the completed forensic report was submitted to the investigating judge of the District Court, confirming asphyxiation from inhaling gastric contents as the immediate cause of Mr \u0160tefan\u010di\u010d\u2019s death. In addition to the trauma consistent with the cause of death, the examination revealed a number of blunt injuries to various parts of his body.","31.These included contusions on the outer edge of the shoulder blade, the left of the back and the back of the right thigh, swelling on the right of the hairline and the squamous part of the temporal bone, contusions on the inside of the upper right arm and left forearm and on the front of the left thigh. Several haematomas were recorded around the left shoulder blade, on the outer edge of the right shoulder blade, on the right of the thorax and on the scalp, as well as a pulmonary oedema, an oblique fracture of the fifth rib, bruising around the lumbar spine, and brain swelling.","32.According to the report, these injuries had either been caused by Mr\u0160tefan\u010di\u010d\u2019s body being struck by an object, by part of his body being pressed against something, by him falling, or by his body being pressed between two hard surfaces. As regards the injuries to the back of his body, hairline and front left thigh, the forensic pathologist concluded that they had most likely occurred by him falling or falling after being struck, and that the bruises were caused by the body being pulled to the ground.","33.The toxicology report revealed a low concentration of haloperidol (an antipsychotic drug with strong calming effects) in Mr \u0160tefan\u010di\u010d\u2019s blood. The forensic report concluded that the substance had been consumed either as a prescription medicine or administered during the intervention in order to calm him down, but could not be linked to his death or identified as the cause of his vomiting.","34.No particularities or disease-related changes had been found in Mr\u0160tefan\u010di\u010d\u2019s system which could have directly contributed to his death.","35.With regard to enquiries made by the investigating judge as to whether Mr \u0160tefan\u010di\u010d\u2019s death could have been prevented by prompt and adequate medical assistance, the forensic report stated:","\u201cDisregarding the particular circumstances surrounding the incident, this question could be answered in the affirmative; however, one cannot neglect the exceptional circumstances in which the incident occurred.","Prompt and adequate medical assistance could have saved the life of [Mr \u0160tefan\u010di\u010d], even in the event that no ambulance with resuscitation equipment was immediately available.","It is likely that [Mr \u0160tefan\u010di\u010d] was thrown or pushed to the ground where, prior to being handcuffed, his body was pushed down by applying body weight or some other pressure. [Being struck or pushed in] the stomach most likely induced the vomiting. In so far as the medical staff or the officers assisting them in the involuntary confinement had noticed in due course that [Mr \u0160tefan\u010di\u010d] began to vomit, they could have prevented him from inhaling gastric contents either by lifting his body into a vertical position or by turning him onto his side and mechanically clearing his oral cavity by using their fingers or an aspirator (if an aspirator was at the disposal of the medical staff). However, it was not possible to apply any of these measures to an aggressive patient resisting hospitalisation; it is only possible to apply such measures after the patient has calmed down or lost consciousness as a result of disruption in the exchange of gases following the aspiration of gastric contents. Having regard to the agitation and aggressiveness of the patient, as well as the circumstances of the incident, such measures almost certainly could not have been applied.","The deceased only lost consciousness when his breathing was disrupted by inhaling massive amounts of gastric contents. Only then was it possible to apply more aggressive medical intervention (mechanical clearing of the oral cavity, suction of gastric contents from the oral cavity and respiratory tract, removal of potentially larger foreign objects and insertion of a tube with a balloon to prevent continuing aspiration of gastric contents, ventilation of the patient), which could not be performed on a conscious person, in particular on an aggressive person, due to the unpleasant feelings such an intervention induces. In the present case, the aspiration of gastric contents was particularly massive and aggressive, which is indicated by the pieces of food found by the histological analysis to be present even in the alveoli, the final branching of the respiratory system.","In the present case it was not possible, once the deceased lost consciousness, to apply those methods and to suck the gastric contents from the respiratory passages and alveoli; considering the quantity and force of the aspiration of gastric contents, medical assistance probably would not have saved the life of [Mr \u0160tefan\u010di\u010d].\u201d","4.Conclusion of the preliminary inquiry","36.On 18 September 2008 the investigating judge of the Nova Gorica District Court sent the statements of the persons involved in the incident, a record of the examination of the scene, the order for a forensic examination of Mr \u0160tefan\u010di\u010d\u2019s body and the forensic report to the State Prosecutor\u2019s Office.","37.On 23 September 2008 the Head of the Nova Gorica State Prosecutor\u2019s Office, B.O., informed the District Court that the conditions had not been met for the institution of criminal proceedings, and that the case file had been archived.","C.Criminal complaint against the police officers involved in the incident","38.On 20 January 2009 the applicant, through her representative, lodged a criminal complaint against police officers J.T., D.K. and J.K., whereby she stated that her son had been strangled and had died as a result of an unnecessary and unprofessional police intervention. The applicant also stated that the forensic report was misleading and there were doubts as to its accuracy. In addition, an anonymous criminal complaint was lodged againstE.G., the head of the Nova Gorica uniformed police unit. The complainant alleged that E.G. had abused his position by giving a statement at a press conference in which he had covered up the actual cause of Mr\u0160tefan\u010di\u010d\u2019s death in order to prevent criminal prosecution of Dr B.A.","39.After having reviewed the Nova Gorica State Prosecutor\u2019s Office\u2019s case file, on 2 June 2009 a State prosecutor from the Group of State Prosecutors for Special Matters (Skupina dr\u017eavnih to\u017eilcev za posebne zadeve \u2013 hereinafter \u201cthe Special Matters Group\u201d), which had exclusive jurisdiction over the prosecution of criminal offences committed by police officers, rejected both criminal complaints on the basis of the police and forensic reports and the media reports from the press conference on Mr\u0160tefan\u010di\u010d\u2019s death.","40.The decision to reject the criminal complaints summarised the information included in the police and forensic reports, as well as the statements given to the police by Dr B.A. and medical technicians S.M. andI.P.","41.The State prosecutor, relying on the forensic report, concluded that Mr \u0160tefan\u010di\u010d\u2019s death could have been prevented if someone had been noticed in time that he had started to vomit. However, in the case in question Mr \u0160tefan\u010di\u010d had been aggressive and resisted hospitalisation, and no assistance could be provided until he had calmed down. Therefore, in the State prosecutor\u2019s opinion there was no is reasonable suspicion that the actions of J.T., D.K. and J.K., the three police officers who had restrained Mr \u0160tefan\u010di\u010d, constituted a criminal offence. Moreover, as regards the anonymous criminal complaint, the State prosecutor established that, according to the reports in the media, the head of the Nova Gorica uniformed police unit had stated neither that Mr \u0160tefan\u010di\u010d had died as a result of being administered sedatives, nor that the medical team had immediately begun resuscitation after his condition had deteriorated. Therefore, no reasonable suspicion existed that E.G. had committed a criminal offence liable to prosecution ex officio.","42.No appeal was available to the applicant against the decision to reject her criminal complaint. However, she could take over the conduct of criminal proceedings as a \u201csubsidiary prosecutor\u201d."],"54":["1. The applicant, Mr Payam Tamiz, is a British national, who was born in 1989 and lives in Maidstone. He was represented before the Court by Withers LLP, a firm of solicitors based in London.","2. The United Kingdom Government (\u201cthe Government\u201d) were represented by their Agent, Mr P. McKell of the Foreign and Commonwealth Office.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","1. The background facts","(a) Blogger.com","4. Google Inc. is a corporation registered in the United States and with its principal place of business there. It provides an Internet blog-publishing service via Blogger.com, a platform that allows any Internet user in any part of the world to create an independent blog free of charge. It includes design tools to help users create layouts for their blogs and, if they do not have their own web address, enables them to host their blogs on Blogger.com web addresses.","5. Blogger.com operates a \u201cContent Policy\u201d which sets out restrictions on what users can do using the service. This makes clear that content such as child pornography, or promoting race hatred, is prohibited. The policy is explained in the following terms:","\u201cBlogger is a free service for communication, self-expression and freedom of speech. We believe that Blogger increases the availability of information, encourages healthy debate and makes possible new connections between people.","We respect our users \u2019 ownership of and responsibility for the content they choose to share. It is our belief that censoring this content is contrary to a service that bases itself on freedom of expression.","In order to uphold these values, we need to curb abuses that threaten our ability to provide this service and the freedom of expression it encourages. As a result, there are some boundaries on the type of content that can be hosted with Blogger. The boundaries we have defined are those that both comply with legal requirements and that serve to enhance the service as a whole.\u201d","6. In addition, Google Inc. operates a \u201cReport Abuse\u201d feature. There are eight grounds for reporting abuse, including \u201cDefamation\/Libel\/Slander\u201d. If the user selects \u2018 Defamation\/Libel\/Slander \u2019, a second screen is displayed which makes it clear that the Blogger.com service is operated in accordance with US law, and that defamatory material will only be taken down if it has been found to be libellous (i.e. unlawful) by a court. According to Google Inc., the reason for this policy is that, given the volume of content uploaded by users of the Blogger.com service, it is usually not practicable for it to remove content without first receiving a court \u2019 s determination that the content is, in fact, libellous. Google Inc. is not in a position to adjudicate such disputes itself.","(b) The post on the \u201cLondon Muslim\u201d blog","7. On 27 April 2011 a piece appeared on the \u201cLondon Muslim\u201d blog, a blog hosted on the Blogger.com website. It contained a photograph of the applicant and the following text:","\u201cPayam Tamiz a Tory Muslim council candidate with a 5 o \u2019 clock shadow has resigned from the party after calling Thanet girls \u2018 sluts \u2019.","Tamiz who on his Twitter page describes himself as an \u2018 ambitious British Muslim \u2019 is bizarrely studying law so one would have thought this Tory prat with Star Trek Spock ears might have engaged the odd brain cell before making these offensive remarks.\u201d","8. A number of anonymous comments were subsequently posted in response to the publication. Eight of the approximately forty-six comments are set out, as originally posted, in the following paragraphs.","9. Comment A:","\u201cI know Mr Tamiz very well and am surprised that it has taken this long for all this to come out, Payam is a known drug dealer in thanet and has been taken to court for theft from his employers tescos in Ramsgate. His whole family are criminals his mother Mrs [L.] has several convictions for theft and shoplifting and got sentenced at maidstone crown court","28 April 2011 14:53\u201d","10. Comment B:","\u201cCan \u2019 t deny what he said is true but isn \u2019 t this the same Payam Tamiz that use to take girls back to his \u2018 houseparties \u2019 practically every weekend with his friends and sleep with them? Hypocritical much?","30 April 2011 12:28\u201d","11. Comment C:","\u201cThe blokes a class A prat not only for the comments he recently made. He may have a few half wits as a following but I speak for the people that have known payam for several years and have been on the reciving end of his abuse a disrespect and his not such a nice person. I \u2019 m sure we \u2019 ll be hearing alot more from his past which will paint a true picture of him.","28 April 2011 23:04\u201d","12. Comment D:","\u201cSo Mr Whacker is a violent racist, certainly doesn \u2019 t like white people does he?!","If you \u2019 d ever been to Margate you would find the majority are white women, even those from the Eastern bloc. To tar all Margate women with the word slut is very derogatory, how does he know? Does he make a habit of chasing women around? Or as someone implys above, does he sell drugs to them?","28 April 23:51\u201d","13. Comment E:","\u201cI \u2019 ve only read that Payams claiming to be 21, I \u2019 m sure he told me that his older than that. Fake asylum claim was it. The good old home office and all us wankers that pay tax for waste of spaces like him.","29 April 2011 01:09\u201d","14. Comment F:","\u201cBefore Payam starts to call women sluts it might be an idea for him to look closer to home, how may brothers and sisters has he got, all with different fathers. I thought Muslim men were the one who were meant to have more than one wife, not the women with more than one husband. Is there not a 30 year gap between the ages of his younger to older brother and sister. Look closer to home pal.","29 April 2011 09:40\u201d","15. Comment G:","\u201cThe only reason his callig girls slags is cos he aint getting none himself. And he blames a relationship breakup for his comments, but the only problem with that being is that Payams never had a girlfriend since I known him and thats been a couple of years, that makes him single at the time.","Poor little Payam, has you giving it the large one to your friends blown up in your face and back fired.","It couldn \u2019 t have happeneded to a better person, his a little snake and he knows it. I \u2019 d put my money on him still being a virgin, not being funny but you only got to look at his picture to work that out.","29 April 2011 21:26\u201d","16. Comment H:","\u201cAnd his brothers girl friend is an escort girl, [L.], look closer to home pal.","29 April 2011 18:43\u201d","(c) The applicant \u2019 s response to the blog post","17. According to the applicant, on 28 or 29 April 2011 he used the \u201creport abuse\u201d function to indicate that he considered certain comments on the blog to be defamatory.","18. On 29 June 2011 he sent a letter of claim to Google UK Ltd (a United Kingdom subsidiary of Google Inc.), which was received on 5 July. In his letter he complained about the blog itself and about comment A. The letter was passed by Google UK Ltd to Google Inc., which responded by email on 8 July 2011 seeking clarification of whether the comment was said to be untrue, since that was not apparent from the terms of the letter. The applicant responded on the same day confirming that comment A was \u201cfalse and defamatory\u201d and introducing a complaint about comment B.","19. On 19 July 2011 the \u201cBlogger Team\u201d at Google Inc. sent the applicant an email seeking permission to forward his complaint to the author of the blog page and confirming that they would not themselves remove the impugned comments. The applicant gave the necessary permission on 22 July 2011 and complained that comments C, D, E, F and G were also defamatory.","20. On 11 August 2011 Google Inc. forwarded the letter of claim to the blogger.","21. On 14 August 2011 the post and all the comments were removed by the blogger. The applicant was informed the following day.","2. The domestic proceedings","(a) The High Court","22. Meanwhile, the applicant sought to bring a claim in libel against Google Inc. in relation to comments A to G. On 10 August 2011 he sent a letter of claim, together with the relevant particulars of claim, to the court and on 22 September 2011 permission was granted to serve the claim form on Google Inc. in the United States. The applicant subsequently incorporated a complaint about comment H into the particulars of claim and served them on Google Inc.","23. Google Inc. sought to have the permission to serve the claim out of jurisdiction set aside and asked the High Court to declare that it had no jurisdiction to try the claim. It argued that:","the claim form did not allege that the comments had been accessed by a substantial number of readers in the jurisdiction. There was therefore no \u201creal and substantial\u201d tort (see paragraphs 50-53 below);","Google Inc. was not a publisher for the purposes of the English law of defamation, but merely a neutral service provider which did not create and had no control over the content users posted on their blogs; and","even if Google Inc. were to be regarded as a publisher, it would be protected from liability by Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 (\u201cthe 2002 Regulations\u201d \u2013 see paragraph 49 below).","24. On 2 March 2012 the High Court held that it should decline jurisdiction and that the order for service out of the jurisdiction should be set aside.","25. The judge first considered whether there was any evidence of a \u201creal and substantial tort\u201d within the jurisdiction. He considered each of the comments individually and while he characterised comments C, E, F, G and H as \u201cmere vulgar abuse\u201d to which no sensible person would attach much, if any, weight, he accepted that comments A, B and D were arguably defamatory.","26. On the question of whether Google Inc. was the \u201cpublisher\u201d, the judge noted that the applicant did not allege that it could be liable for the comments complained of before he notified it of their potential unlawfulness. Consequently, the judge only considered it necessary to assess potential legal liability from the point of notification.","27. The judge considered it relevant, although not determinative as a matter of law, that Google Inc. promulgated and attempted to follow a well \u2011 known policy of not removing offending material on the basis that it was not in a position to investigate or come to a decision upon any legal challenge. This was partly a question of principle and partly a matter of sheer practicality: on the one hand, Google Inc. regarded itself as providing a platform for the free exchange of information and ideas and would not wish to be seen as a censor; on the other hand, the blogs on Blogger.com contained more than half a trillion words and 250,000 new words were added every minute. It would therefore be virtually impossible for the corporation to exercise editorial control over content.","28. The judge further noted that one should guard against imposing legal liability in restraint of Article 10 of the Convention where it was not necessary or proportionate to do so. In this regard, he considered the possibility of an action against the authors of the comments and possibly the author of the blog. While he accepted that this approach \u201cmay be regarded as more theoretical than real due to problems of anonymity\u201d, it was an argument that could not simply be ignored. However, the important question was not whether the applicant could identify the authors or bloggers in question, but rather whether he was in a position to establish against Google Inc. the necessary attributes of a publisher.","29. The judge concluded:","\u201c38. Google Inc. accepts the responsibility of notifying (albeit not always with great promptitude) the blogger(s) in question. It does not, however, accept that it should investigate every complaint received, whether by way of establishing the facts or obtaining advice on the relevant domestic law or laws that may be applicable. The fact that an entity in Google Inc. \u2019 s position may have been notified of a complaint does not immediately convert its status or role into that of a publisher. It is not easy to see that its role, if confined to that of a provider or facilitator beforehand, should be automatically expanded thereafter into that of a person who authorises or acquiesces in publication. It claims to remain as neutral in that process after notification as it was before. It takes no position on the appropriateness of publication one way or the other. It may be true that it has the technical capability of taking down (or, in a real sense, censoring) communications which have been launched by bloggers or commentators on its platform. Yet that is not by any means the same as saying that it has become an author or authoriser of publication. It is no doubt often true that the owner of a wall which has been festooned, overnight, with defamatory graffiti could acquire scaffolding and have it all deleted with whitewash. That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher.","39. It seems to me to be a significant factor in the evidence before me that Google Inc. is not required to take any positive step, technically, in the process of continuing the accessibility of the offending material, whether it has been notified of a complainant \u2019 s objection or not. In those circumstances, I would be prepared to hold that it should not be regarded as a publisher, or even as one who authorises publication, under the established principles of the common law. As I understand the evidence its role, as a platform provider, is a purely passive one ... I would rule that Google Inc. is not liable at common law as a publisher. It would accordingly have no need to rely upon a defence (statutory or otherwise).\u201d","30. Finally, the judge said that if, contrary to that view, Google Inc. was to be regarded as a \u201cpublisher\u201d, section 1 of the Defamation Act 1996 (\u201cthe 1996 Act\u201d \u2013 see paragraphs 45-48 below) provided it with a defence, notably because it took reasonable care in passing the complaint on to the blogger once it had been notified. In reaching this conclusion, he accepted that the period between notification and the removal of the offending post was so short as to give rise to potential liability on the part of Google Inc. only for a very limited period with the consequence that its potential liability, if any, would be so trivial as not to justify the maintenance of the proceedings. Alternatively, regulation 19 of the 2002 Regulations would provide Google Inc. with a defence if it were otherwise needed.","(b) The Court of Appeal","31. The applicant sought leave to appeal to the Court of Appeal. He argued that the High Court was wrong to conclude that Google Inc. was not a \u201cpublisher\u201d at common law; that Google Inc. had an unanswerable defence under section 1 of the 1996 Act; and that Google Inc. had an unanswerable defence under regulation 19 of the 2002 Regulations. Although his arguments primarily focused on domestic law, at the end of his written grounds he argued that in interpreting regulation 19 of the 2002 Regulations, the right to freedom of expression in Article 10 of the Convention was not to be prioritised, that reputation was among the rights protected by Article 8, and that Article 8 and 10 rights were to be accorded equal weight.","32. Leave to appeal was granted and on 14 February 2013 the Court of Appeal dismissed the appeal.","33. With regard to the date of notification, the applicant had submitted that between 29 April 2011 and the letter of claim he had made various telephone calls to Google UK Ltd and sent two letters to that company \u2019 s office. However, the Court of Appeal noted that the transcript of the High Court hearing made it \u201ctolerably clear\u201d that he had been content to proceed on the basis that the date of notification of the complaint to Google Inc. fell between 5 July 2011 (when Google UK Ltd received his letter) and 8 July 2011 (when Google Inc. first contacted him by email). The court refused to admit fresh evidence in the form of the letters allegedly sent to Google UK Ltd since these documents could have been submitted for use at the hearing below.","34. The court further accepted the High Court \u2019 s findings as to the nature of the comments and agreed with its conclusion that comments A, B and D were arguably defamatory.","35. On the question of whether Google Inc. was a publisher, the court noted that the applicant \u2019 s pleaded case related to the period after Google Inc. had been notified of the complaint. It considered the High Court judge to have been wrong to regard Google Inc. \u2019 s role during this period as a purely passive one and to attach the significance he did to the absence of any positive steps by Google Inc. in relation to continued publication of the comments in issue. It explained:","\u201c24. By the Blogger service Google Inc. provides a platform for blogs, together with design tools and, if required, a URL; it also provides a related service to enable the display of remunerative advertisements on a blog. It makes the Blogger service available on terms of its own choice and it can readily remove or block access to any blog that does not comply with those terms ... As a matter of corporate policy and no doubt also for reasons of practicality, it does not seek to exercise prior control over the content of blogs or comments posted on them, but it defines the limits of permitted content and it has the power and capability to remove or block access to offending material to which its attention is drawn.","25. By the provision of that service Google Inc. plainly facilitates publication of the blogs (including the comments posted on them). Its involvement is not such, however, as to make it a primary publisher of the blogs. It does not create the blogs or have any prior knowledge of, or effective control over, their content. It is not in a position comparable to that of the author or editor of a defamatory article. Nor is it in a position comparable to that of the corporate proprietor of a newspaper in which a defamatory article is printed. Such a corporation may be liable as a primary publisher by reason of the involvement of its employees or agents in the publication. But there is no relationship of employment or agency between Google Inc. and the bloggers or those posting comments on the blogs: such people are plainly independent of Google Inc. and do not act in any sense on its behalf or in its name ...\u201d","36. The court was also very doubtful that Google Inc. \u2019 s role was that of a secondary publisher, facilitating publication in a manner analogous to a distributor. It concluded that, in any event, such an argument could get nowhere in relation to the period prior to notification of the complaint in light of a long-established line of authority that a person involved only in dissemination was not to be treated as a publisher unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory. Since it could not be said that Google Inc. knew or ought reasonably to have known of the defamatory comments prior to notification by the applicant, Google Inc. could not be viewed as a secondary publisher prior to such notification. The court further found that even if it could be so regarded, it would have an unassailable defence during that period under section 1 of the 1996 Act.","37. As to Google Inc. \u2019 s position after notification, the Court of Appeal took a different view from the High Court. It considered that if Google Inc. allowed defamatory material to remain on a blog after it had been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a publisher of the material. However, such an inference could not properly be drawn until Google Inc. had had a reasonable time to remove the defamatory comments. The court considered it open to argument that the time taken to remove the comments after notification \u2013 over five weeks as regards comments A and B \u2013 was sufficiently long to give rise to such an inference. The claim could therefore not be dismissed on the ground that Google Inc. was clearly not the publisher.","38. It was accordingly necessary to consider the defence under section 1 of the 1996 Act. Here, while the Court of Appeal accepted that the conditions in subsections 1(a) to (c) were plainly satisfied in relation to the period prior to notification of the complaint, it was not persuaded that in the period after notification Google Inc. did not know, and had no reason to believe, that what it did caused the publication of a defamatory statement. The court was therefore not satisfied that, if Google Inc. were considered to be a publisher, it would have an unassailable defence under section 1 of the 1996 Act.","39. Nevertheless, the Court of Appeal found that the High Court was plainly right to conclude that the claim should not be allowed to proceed because both the damage and any eventual vindication would be minimal and the costs of the exercise would be out of all proportion to what would be achieved (in other words, that there had been no \u201creal and substantial tort\u201d). It explained:","\u201c50. ... The allegedly defamatory comments were posted between 28 and 30 April, soon after the initial blog of 27 April. By the very nature of a blog, they will have been followed by numerous other comments in the chain and, whilst still accessible, will have receded into history. As I have indicated, the earliest point at which Google Inc. could have become liable in respect of the comments would be some time after notification of the complaint in respect of them. But it is highly improbable that any significant number of readers will have accessed the comments after that time and prior to removal of the entire blog. It follows ... that any damage to the appellant \u2019 s reputation arising out of continued publication of the comments during that period will have been trivial; and in those circumstances the [High Court] judge was right to consider that \u2018 the game would not be worth the candle \u2019. I do not accept [the] submission that various other features of the claim, including the fact that the appellant \u2019 s name is relatively uncommon and distinctive in this jurisdiction, undermined the judge \u2019 s conclusion.\u201d","40. It followed that the appeal failed and, in the circumstances, it was unnecessary to consider whether Google Inc. would have had a defence under regulation 19 of the 2002 Regulations.","(c) The Supreme Court","41. The applicant sought permission to appeal to the Supreme Court. He argued that the judgment of the Court of Appeal did not strike the correct balance between Articles 6, 8 and 10 of the Convention and unlawfully denied him access to a court and deprived him of the means to vindicate his Article 8 rights.","42. On 1 July 2013 the Supreme Court refused permission to appeal on the basis that the applicant did not raise an arguable point of law.","B. Relevant domestic law","1. Defamation","43. In order to become legally responsible for the publication of a defamatory statement, and therefore potentially liable in the tort of defamation, English law requires, as a minimum, knowing involvement in the process of publication of the relevant words: Bunt v. Tilley [2007] 1 WLR 1243. Accordingly, a person whose role is confined to the process of disseminating allegedly objectionable content is not to be treated as a \u201cpublisher\u201d, in the sense required to give rise to potential liability in defamation, unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory.","44. In the context of defamation claims brought against information society service providers (\u201cISSPs\u201d), the English courts have distinguished between ISSPs whose role is automatic and\/or amounts to no more than acting as a passive medium for communication of third-party content transmitted between Internet users; and ISSPs which operate services and platforms on which third-party defamatory content is stored, in a manner which is more than merely transient or temporary, and thereby made accessible to other Internet users. ISSPs whose services fall within the latter category may potentially become liable for third-party content under the principles of defamation by omission or acquiescence; for example, if they fail to take down defamatory content after being alerted to its existence, if they have power to remove the content and it can be inferred from the circumstances of the case that their failure to do so constituted consent to or authorisation of continued publication.","2. Relevant defences","(a) The Defamation Act 1996","45. The Defamation Act 1996 amended the law of defamation. Section 1 is headed \u201cresponsibility for publication\u201d and provides, in subsection (1), that a person has a defence in defamation proceedings if he shows that:","\u201c(a) he was not the author, editor or publisher of the statement complained of,","(b) he took reasonable care in relation to its publication, and","(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.\u201d","46. Pursuant to section 1(2), \u201cauthor\u201d, \u201ceditor\u201d and \u201cpublisher\u201d have the following meanings:","\u201c \u2018 author \u2019 means the originator of the statement, but does not include a person who did not intend that his statement be published at all;","\u2018 editor \u2019 means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and","\u2018 publisher \u2019 means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.\u201d","47. Section 1(3)(e) provides that a person shall not be considered the author, editor or publisher of a statement if he is only involved as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.","48. Pursuant to section 1(5), in determining whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard must be had to:","\u201c(a) the extent of his responsibility for the content of the statement or the decision to publish it,","(b) the nature or circumstances of the publication, and","(c) the previous conduct or character of the author, editor or publisher.\u201d","(b) The Electronic Commerce (EC Directive) Regulations 2002","49. Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, which implemented the provisions of Article 14 of Directive 2000\/31\/EC of the European Parliament and of the Council dated 8 June 2000 relating to electronic commerce (see paragraph 55 below), provides:","\u201cWhere an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where\u2013","(a) the service provider\u2013","(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or","(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and","(b) the recipient of the service was not acting under the authority or the control of the service provider.\u201d","3. The requirement of \u201ca real and substantial tort\u201d","50. Under English law, a claimant normally requires the national courts \u2019 permission to serve proceedings on a defendant who is domiciled outside the jurisdiction. A claimant may apply to the court for permission without giving notice to the prospective defendant. However, if permission is granted, the foreign defendant may apply to have the order set aside.","51. In Dow Jones & Co Inc v.Yousef Abdul Latif Jameel [2005] EWCA Civ 75 the Court of Appeal held that an application to set aside permission to serve defamation proceedings out of the jurisdiction could be granted on the basis that the publications complained of did not, individually or collectively, amount to \u201ca real and substantial tort\u201d. Although jurisdiction was no longer in issue in that case, the court further noted that it would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where little was seen to be at stake.","52. In reaching this conclusion, the court observed:","\u201cThere have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more pro-active. The second is the coming into effect of the Human Rights Act. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, insofar as it is possible to do so. Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant \u2019 s reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.\u201d","53. In Mohammed Hussein Al Amoudi v. Jean Charles Brisard And Jcb Consulting International Sarl [2006] EWHC 1062 (QB) the High Court found no basis for concluding that a claimant in a libel action on an Internet publication was entitled to rely on a presumption of law that there had been substantial publication. Rather, the claimant had to prove publication from the Internet either to identifiable third parties or by asking the court to draw an inference based upon facts admitted or proved.","C. Relevant international law and practice","54. On 28 May 2003, at the 840th meeting of the Ministers \u2019 Deputies, the Committee of Ministers of the Council of Europe adopted a Declaration on freedom of communication on the Internet. According to Principle 6,","\u201cIn cases where the functions of service providers are wider and they store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware, as defined by national law, of their illegal nature or, in the event of a claim for damages, of facts or circumstances revealing the illegality of the activity or information.\u201d","55. Directive 2000\/31\/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) provides, insofar as relevant:","\u201cArticle 14 \u2013 Hosting","1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:","(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or","(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.","2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.","3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States \u2019 legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.","Article 15 \u2013 No general obligation to monitor","1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.","2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.\u201d","56. A Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, adopted on 21 December 2005, stated the following:","\u201cNo one should be liable for content on the Internet of which they are not the author, unless they have either adopted that content as their own or refused to obey a court order to remove that content.\u201d"],"55":["5.The applicant was born in 1952 and lives in Celje.","6.He had been a professional truck driver until he became unable to work due to epilepsy.","A.The granting of disability benefit to the applicant and the changes thereof","7.On 29 September 2003 the applicant was certified as having a \u201ccategory III work-related disability\u201d as a result of his condition. He was found to have a right to be reassigned to a suitable position of employment where he and others would not be at risk because of his condition, with (retroactive) effect from 14 August 2002.","8.On 21 February 2005 the Celje regional unit of the Pension and Disability Insurance Institute of Slovenia (hereinafter \u201cthe regional ZPIZ\u201d) granted the applicant a so-called \u201callowance for the period of waiting to be reassigned to or employed in a different appropriate position of employment\u201d (hereinafter \u201cwaiting period allowance\u201d) from 8October 2004. Though the sums appear to be lower during the first few months, he had been subsequently receiving around 390 euros (EUR) per month in waiting period allowance. The regional ZPIZ relied on section 123 of the Pension and Disability Insurance Act (hereinafter \u201cthe 1992 Act\u201d) and section446 of the new Pension and Disability Insurance Act (hereinafter \u201cthe 1999Act\u201d \u2013 see paragraphs 24 and 25 below). It noted that the applicant had been registered as unemployed on 3March 2003 and had been a beneficiary under section 22 of the 1999Act from 1 March 2003 to 7October 2004. Thus, once his unemployment allowance had come to an end he had become entitled to a waiting period allowance under section 123 of the 1992 Act (see paragraph 24 below). The regional ZPIZ also noted that, under section193 of the 1992 Act, beneficiaries were entitled to a waiting period allowance until they fulfilled the conditions for retirement (ibid.).","9.On 15 October 2010 the applicant\u2019s doctor informed the regionalZPIZ about a shoulder injury the applicant had sustained and requested a reassessment of his level of disability.","10.On the basis of, inter alia, information provided by the applicant\u2019s doctor, the regional ZPIZ, on 2 February 2011, decided that the applicant had a right to be reassigned to another position of employment with several limitations, such as not to work at unprotected heights or drive categoryC and E vehicles, with effect from 1 February 2011. Subsequently, on 28June 2011 it adopted a decision granting him a disability allowance (nadomestilo za invalidnost) from 24 February 2011 onwards. The regional ZPIZ relied on the 1999 Act, which had introduced certain new disability benefits (the term \u201cdisability benefit\u201d is used to cover any type of allowance that arises from a disability) and discontinued some of those provided for under the 1992Act, including the waiting period allowance. Sections 397 and 446 of the 1999 Act stipulated that a right to a disability allowance applied as from 1 January 2003 (see paragraph 25 below). The regional ZPIZ noted in its decision that the applicant had not been insured under the compulsory insurance scheme at the onset of his disability, but had been registered as unemployed on 3 March 2003 within thirty days of the final decision on his disability, as required by section97 of the 1999 Act. It was established that his capacity to work had in fact further reduced, even though the category (III) of his disability remained unchanged. The regional ZPIZ found that, pursuant to section94(1)(1) and (3)(1) of the 1999 Act, he should receive a benefit in the form of disability allowance, which in his case amounted to EUR192.91. It drew the applicant\u2019s attention to section 185 of the 1999Act, which required beneficiaries to inform the ZPIZ of any change in circumstances which could affect their rights under that Act (see paragraph26 below).","11.On 21 July 2011 the applicant appealed against the above decision, arguing that in determining the amount of his disability benefit, the regionalZPIZ should have respected the principle of acquired rights. He pointed out that his benefit had reduced considerably, even though his disability had in fact worsened, and claimed that such a decision was unlawful.","12.On 21 October 2011 the central Pension and Disability Insurance Institute of Slovenia (hereinafter \u201cthe central ZPIZ\u201d) dismissed the applicant\u2019s appeal, confirming that the regional ZPIZ had properly applied the law and correctly calculated the amount of his disability allowance.","B.The court proceedings instituted by the applicant","1.The proceedings before the Labour and Social courts","13.On 5 December 2011 the applicant lodged a claim with the Celje Labour and Social Court challenging the above decisions. He reiterated that the disability allowance granted to him under the 1999Act violated his acquired rights and that instead of increasing his benefit it reduced it by half, which was unlawful and unconstitutional.","14.On 26 March 2012 the Celje Labour and Social Court dismissed the applicant\u2019s claim. It explained that while recipients of disability-related rights under the 1992 Act retained their acquired rights after the date set out in section 446 of the 1999 Act, in the applicant\u2019s case a reassessment of his disability had been carried out on 2 February 2011 due to a worsening of his condition (see paragraph10 above), which had resulted in further workplace limitations and his rights being consequently determined anew. In cases where a fresh assessment was made the 1999 Act was to be applied. The court concluded that the 1999 Act did not contain the right to a waiting period allowance. Instead, under section 94, it provided for the disability allowance (see paragraph 25 below) which had been correctly granted to the applicant.","15.On 25 April 2012 the applicant appealed against the judgment, repeating the complaints he had made before the first-instance court and alleging that he ought to have been informed of the consequences of a request for a reassessment of his disability. If that had been the case, he would have \u201cforbidden\u201d his doctor from making such a request. Lastly, he reiterated that the decision of the regional ZPIZ of 28 June 2011 (see paragraph 10above) was unlawful and unconstitutional, as it violated his right to social security; he pointed out that he was unable to survive on the newly determined disability allowance.","16.On 21 June 2012 the Higher Labour and Social Court dismissed the applicant\u2019s appeal, confirming the position of the lower court that the applicant\u2019s case concerned a change in the level of disability, which had required a fresh determination of his disability benefit. In such a situation, section 397(3) of the 1999 Act provided that the applicant acquired rights under the Act. Also, since the applicant\u2019s rights had been determined anew, the Higher Labour and Social Court concluded that there had been no violation of his acquired rights related to social security, and thus no violation of the Constitution.","2.The proceedings before the Supreme Court","17.On 4 September 2012 the applicant lodged an appeal on points of law before the Supreme Court, arguing that he could not have legitimately expected that the worsening of his disability would result in a severe reduction of his disability benefit. In that connection, he alleged that the Higher Labour and Social Court\u2019s view that the reduction did not interfere with his acquired rights or constitute a violation of his constitutional right to social security was arbitrary, as the court had provided no reasoning for that conclusion. The applicant further alleged that the newly determined amount of disability benefit interfered with his constitutional right to property.","18.On 5 March 2013 the Supreme Court dismissed the applicant\u2019s appeal on points of law, finding that the Higher Labour and Social Court had sufficiently explained that the change in his level of disability had required a fresh determination of his benefit in accordance with the 1999 Act.","3.The constitutional complaint","19.On 21 May 2013 the applicant lodged a constitutional complaint against the Supreme Court\u2019s judgment, alleging a violation of his constitutional rights to property and social security. He argued that the reduction in the disability benefit had put his subsistence at risk and failed the test of proportionality.","20.On 18 November 2013 the Constitutional Court refused to accept the applicant\u2019s complaint for consideration on the merits, referring to section55b(2) of the Constitutional Court Act (see paragraph 27 below).","C.The applicant\u2019s retirement","21.In the meantime, on 22 May 2013, the applicant fulfilled the conditions for a retirement pension in the amount of EUR 374.73 and his disability allowance was discontinued from that date. He thus received the disability allowance for a period of twenty-seven months.","22.Data concerning the applicant\u2019s income provided by the Slovenian tax authorities shows that he received EUR 4,908 in 2010 in pension and disability insurance and, after the impugned change in his allowance, EUR2,902 in 2011 and EUR 2,480 in 2012."],"56":["1. A list of the applicants is set out in the appendix. All the applicants are nationals of Bosnia and Herzegovina and are represented by Ms T. Drobnjak, a lawyer practicing in Belgrade.","2. The Serbian Government (\u201cthe Government\u201d) are represented by their Agent, Ms N. Plav\u0161i\u0107.","A. Relevant background to the present case","3. Following its declaration of independence from the former Socialist Federal Republic of Yugoslavia ( SFRY) in March 1992, a brutal war broke out in Bosnia and Herzegovina. More than 100,000 people were killed and more than 2,000,000 others were displaced as a result of \u201cethnic cleansing\u201d or generalised violence. The following local forces were the main parties to the conflict: the Army of the Republic of Bosnia and Herzegovina ( Armija Republike Bosne i Hercegovine, hereinafter ARBH), which was mostly made up of Bosniacs [1] and loyal to the central authorities in Sarajevo, the Croatian Defence Council ( Hrvatsko vije\u0107e odbrane, hereinafter HVO), which was mostly made up of Croats [2], and the Army of the Republika Srpska ( Vojska Republike Srpske, hereinafter VRS) which was mostly made up of Serbs [3]. The conflict ended in December 1995 when the General Framework Agreement for Peace (\u201cthe Dayton Agreement\u201d) entered into force between Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia (succeeded by Serbia by 2006).","4. \u017depa, a town in eastern Bosnia and Herzegovina, is situated some twelve kilometres from the border with Serbia. Before the war it had a population of less than 3,000, of whom the majority were Bosniacs. During the war, \u017depa was one of three Bosniac enclaves in eastern Bosnia surrounded by the VRS [4]. In 1993 it was declared a \u201csafe area\u201d by the United Nations Security Council [5].","5. In 1995, there were between 6,500 and 8,000 people living in \u017depa, of whom some two-thirds were displaced persons from other parts of Bosnia and Herzegovina [6].","6. On 12 July 1995 the VRS attacked the \u017depa \u201csafe area\u201d, capturing it on 25 July. In the days that followed, several hundred Bosniacs \u2013 predominantly able-bodied men who refused to surrender to VRS forces \u2013 managed to cross the border and flee to Serbia [7]. The present applicants \u2019 relatives were among them.","B. The circumstances of the present case","1. General","7. When \u017depa was captured by the VRS, the applicants \u2019 relatives (Mr Abid Agi\u0107, the brother of the first applicant; Mr \u0160e\u0107an Dizdarevi\u0107, the son of the second applicant and brother of the third and the fourth applicant; Mr Edem Torlak, the father of the fifth applicant and the husband of the sixth applicant; and Mr Meho Jahi\u0107, the husband of the seventh applicant) crossed into Serbia from Bosnia and Herzegovina, hoping that they would be able to find refuge in a third country. They were discovered by a border guard patrol of the Yugoslav Army ( Vojska Jugoslavije, hereinafter VJ) and taken to two detention camps. It would appear that more than 800 exiled individuals were brought to the camps between 29 July and 3 August 1995. The applicants claim that the men received notification that they had prisoner-of-war status; it is not clear whether all of them were indeed members of ARBH or some of them were civilians. The first camp, \u0160ljivovica, was situated in the municipality of \u010cajetina and the second, Mitrovo Polje, in the municipality of Aleksandrovac, both in Serbia. The \u0160ljivovica detention camp was located in an abandoned workers \u2019 barracks and Mitrovo Polje in a former children \u2019 s recreational facility.","8. Both camps were guarded by the Serbian police force and none of the applicants was allowed to leave them. According to the applicants, during their transportation to the camps or while interned in them, their relatives were either murdered or died as a result of torture and lack of medical assistance.","9. During their existence the camps were visited by representatives of the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina. The latter compiled a report in which it found that the conditions of detention were disturbing.","10. Following the entry into force of the Dayton Agreement, the UNHCR facilitated the transfer of the camp survivors into third countries and the camps were closed in February\/April 1996.","2. Circumstances of Mr Abid Agi\u0107 \u2019 s death","11. The applicants maintained that Mr Agi\u0107, along with the other men, was captured by a border guard stationed at the Jago\u0161tica watch-tower on 31 July or 1 August 1995. Upon capture and before being handed over to the competent police authorities, he was severely beaten by the soldiers and died there from the injuries sustained.","12. The Government maintained that nobody by the name of Abid Agi\u0107 is mentioned in the relevant police or military records.","3. Circumstances of Mr \u0160e\u0107an Dizdarevi\u0107 \u2019 s death","13. The applicants maintained that Mr Dizdarevi\u0107, who was seventeen years old at the time, was captured along with the other men by a border guard stationed at the Jago\u0161tica watch-tower on 31 July or 1 August 1995. Upon capture and before being handed to the competent police authorities, he was repeatedly kicked in the abdomen by the soldiers, sustaining internal injuries as a result. He was then transferred to an internment camp where, despite the deterioration of his health, he was not provided with medical care. He died of the inflicted injuries on the way to hospital on 9 September 1995.","14. The Government maintained that the autopsy report shows that Mr Dizdarevi\u0107 died of natural causes due to \u201cheart failure and stay of breathing resulting from self-poisoning caused by deterioration of part of the small intestine, aggravated by breathing of stomach contents as a result of vomiting and acute inflammation of the stomach.\u201d","15. The applicants made no comment on the Government \u2019 s submission.","4. Circumstances of Mr Edem Torlak \u2019 s death","16. Mr Torlak was detained at the Jago\u0161tica watch-tower and transported to the \u0160ljivovica camp on 1 August 1995. He was transported with another sixty detainees in a closed curtainside truck designed to transport a maximum of twenty people. He died apparently of suffocation during transportation. His body was taken out of the truck and buried on 11 August 1995 by the Muslim religious community in the Priboj cemetery. There is apparently a pathologist \u2019 s report of 10 August 1995, without post mortem examination, stating that he had died from heart attack.","In June 2007 the Serbian Commission for missing persons ordered the exhumation of his corps, identified him and transported him to Bosnia and Herzegovina. The Commission stated in its request to a competent court that it did not have any information that the persons may have died by the cause of a crime. The autopsy could not determine the cause of death due to the corps \u2019 state.","5. Circumstances of Mr Meho Jahi\u0107 \u2019 s death","17. The applicants maintain that Mr Jahi\u0107 was severely beaten by guards at the \u0160ljivovica camp and that he died of the injuries inflicted in October 1995.","18. The Government maintained that the only person registered as a detainee under the name of Meho Jahi\u0107 at the \u0160ljivovica camp was transferred to the Office of the UN High Commissioner for Refugees in Belgrade on 7 December 1995 and had been scheduled for emigration to Ireland. They further claim that this person died on 25 January 2005 in Hrasnica, Ilid\u017ea, Bosnia and Herzegovina and was buried in Vlakovo, Ilid\u017ea, Bosnia and Herzegovina.","6. Criminal proceedings","19. On 6 September 2011 the Humanitarian Law Centre ( Fond za humanitarno pravo, hereinafter FHP), a Belgrade-based NGO, lodged a criminal complaint on behalf of the applicants and other individuals as victims with the Office of the War Crimes Prosecutor of Serbia ( Tu\u017eila\u0161tvo za ratne zlo\u010dine, hereinafter OWCP) against more than fifty individuals for alleged war crimes (see paragraph 32 below). In its criminal complaint the FHP submitted statements from the camps \u2019 detainees, medical documentation, documentation from the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina, and other evidence. They submitted an extensive list of potential witnesses and proposed other investigative steps. Among those alleged to have taken part in the killings, the Centre identified members of the State Security Agency of Serbia, police officers, and military servicemen of various ranks. It would appear that on 8 September 2011 the OWCP requested the FHP to provide evidence it referred to in the criminal complaint, but the FHP apparently failed to do so.","20. On 23 September 2011 the OWCP undertook a preliminary verification of the information submitted by the applicants and requested the Ministry of the Interior and the Ministry of Defence to submit information regarding the criminal complaint.","21. On 17 November 2011 and 2 December 2011 the Ministry of the Interior submitted two reports to the OWCP. In their reports it was stated that the situation in the camps had been generally good, that the camps had not been enclosed behind a fence, and that residents who were given refugee status had had access to health services, a canteen, a post office, a phone, a bank, and both private visits and visits by officials from international organisations. While one of the reports describes the conditions in \u0160ljivovica camp as unsatisfactory, the conditions in Mitrovo Polje were described as lodgings with the quality of \u201chotel accommodation\u201d. This preliminary examination also revealed some inconsistencies and irregularities in the criminal complaint regarding the identity of the alleged victims and the circumstances of their death and burial.","22. On 1 March 2013 the OWCP notified the FHP that it decided, having regard to the FHP \u2019 s allegations and evidence collected by the OWCP, not to prosecute ( da nema mesta krivi\u010dnom gonjenju, Ktrr. 134\/11) on the ground that there had not been elements of the alleged war crime or any other crime within the OWCP \u2019 s jurisdiction in the acting of the suspects. A reasoned decision ( re\u0161enje o odba\u010daju ), if it had been made in writing, has neither been sent to the applicants, nor to the FHP.","7. Proceedings before the Constitutional Court","23. On 8 April 2013 the applicants lodged a constitutional appeal before the Constitutional Court of Serbia, claiming violations of Articles 2, 3 and 6 of the Convention. On 4 February 2014 the Constitutional Court rejected the applicants \u2019 constitutional appeal, finding that, given the legal nature and content of the OWCP \u2019 s decision, it could not be considered as an individual act which was decisive with respect to the applicants \u2019 human rights, as required by Article 170 of the Constitution ( da se ne radi o pojedina\u010dnom aktu iz \u010dlana 170. Ustava; see paragraph 25 below).","24. The decision of the Constitutional Court was delivered to the applicants \u2019 representative on 2 July 2014.","C. Relevant domestic law and practice","1. The Constitution of the Republic of Serbia 2006 ( Ustav Republike Srbije; published in OG RS no. 98\/06)","25. The relevant provisions of the Constitution read as follows:","Article 170","\u201c A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.\u201d","2. Provisions concerning the statutory limitation of criminal liability","(a) Criminal Code of the Federal Republic of Yugoslavia","26. The Criminal Code of the Socialist Federal Republic of Yugoslavia 1976 (Official Gazette of the Socialist Federal Republic of Yugoslavia \u2013 OG SFRY \u2013 nos. 44\/76, 36\/77, 34\/84, 37\/84, 74\/87, 57\/89, 3\/90, 38\/90, 45\/90 and 54\/90, in the Official Gazette of the Federal Republic of Yugoslavia nos. 35\/92, 16\/93, 31\/93, 37\/93, 24\/94 and 61\/01, and in OG RS no. 39\/03) was in force until 1 January 2006. The relevant provisions thereof are set out hereunder.","27. Article 95 governs the statutory limitation periods in respect of criminal liability. The relevant parts are worded as follows:","\u201c(1) If not prescribed differently by this Code, criminal liability shall be statute \u2011 barred:","1) twenty-five years from the date on which the offence was committed in instances where the law provides for the death penalty or twenty years \u2019 imprisonment;","2) fifteen years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding ten years;","3) ten years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding five years;","4) five years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding three years;","5) three years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding one year;","...\u201d","28. Article 100 of the same Code is worded as follows:","\u201cThe statutory limitation of criminal liability does not apply to the crimes covered by Articles 141-145 of this Code [genocide and war crimes] or to crimes for which statutory limitation is proscribed by international treaties.\u201d","(b) Criminal Code of the Republic of Serbia","29. The Criminal code of the Republic of Serbia (Official Gazette of the Republic of Serbia, nos. 85\/2005, 88\/2005, 107\/2005, 72\/2009, 111\/2009, 121\/2012 and 104\/2013) entered into force on 1 January 2006.","Article 103 governs the statutory limitation periods in respect of criminal liability. The relevant parts are worded as follows:","\u201c(1) If not prescribed differently by this Code, criminal liability shall be statute \u2011 barred:","1) twenty-five years from the date on which the offence was committed where the law provides for thirty to forty years \u2019 imprisonment;","2) twenty years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding fifteen years;","3) fifteen years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding ten years;","4) ten years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding five years;","5) five years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding three years;","6) three years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding one year;","...\u201d","30. Article 100 of the same Code is worded as follows:","\u201cThe statutory limitation of criminal liability does not apply to crimes covered by Articles 370-375 of this Code [genocide and war crimes] or to crimes for which statutory limitation is proscribed by ratified international treaties.\u201d","3. Provisions concerning war crimes, crimes against humanity and killings","(a) Criminal Code of the Federal Republic of Yugoslavia ( in force until 1 January 2006)","31. Article 142 - War crime against the civilian population","\u201cWhoever, acting in violation of the rules of international law applicable in time of war, armed conflict or occupation, orders that a civilian population be subject to killing, torture, inhumane treatment, biological experiments, immense suffering or violation of their bodily integrity or health; dislocation or displacement or forcible conversion to another nationality or religion; forcible prostitution or rape; application of measures of intimidation and terror, hostage-taking, imposition of collective punishment, unlawful transfer to concentration camps or other illegal arrests and detention, deprivation of rights to fair and impartial trial; forcible service in the armed forces of the enemy \u2019 s army or in its intelligence service or administration; forced labour, starvation of the population, property confiscation, pillaging, illegal and intentional destruction or large-scale stealing of property that is not justified by military needs, taking an illegal and disproportionate contribution or requisition, devaluation of domestic currency or the unlawful issuance of currency; or personally commits one of the aforementioned actions, shall be punished by not less than five years \u2019 imprisonment or the death penalty.\u201d","32. Article 144 - War crime against prisoners of war","\u201cWhoever, acting in violation of the rules of international law, orders the murder, torture or inhumane treatment of prisoners of war, including biological experiments, extreme suffering or serious injury to their bodily integrity or health, compulsory enlistment in the armed forces of an enemy power, or deprivation of the right to a fair and impartial trial, or personally commits any of the aforementioned acts, shall be punished by not less than five years \u2019 imprisonment or by the death penalty.\u201d","(b) Criminal Code of the Socialist Republic of Serbia","33. The Criminal Code of the Socialist Republic of Serbia (Official Gazette of the Socialist Republic of Serbia nos. 26\/77, 28\/77, 43\/77 and 20\/79) was in force in until 1 January 2006. Its relevant provisions read as follows:","34. Article 47 \u2013 Murder","\u201c(1) Whoever causes the death of another shall be punished by not less than five years \u2019 imprisonment.","(2) No less than twelve years \u2019 imprisonment or the death penalty shall be imposed on whoever :","1) causes the death of another in a cruel or insidious manner;","2) causes the death of another by callous, violent behaviour;","3) causes the death of a person and with premeditation endangers the life of (an)other person(s);","4) causes the death of another for the purpose of gain, or to commit or conceal another offence, or for callous revenge or other base motives;","5) causes the death of an official or serviceman during the discharge or related to the discharge of duties concerning the state or public security...;","6) with premeditation causes the death of several persons, where this is not a case of manslaughter committed in the heat of passion, or infanticide, or mercy killing.","35. Article 53 \u2013 Serious bodily harm","\u201c(1) Whoever causes serious injury to another, or serious impairment of another \u2019 s health, shall be punished by imprisonment of between six months and five years.","(2) Whoever causes serious injury to another or impairment of another \u2019 s health resulting in the endangering of the life of that person or the destruction or permanent significant damage to or weakening of a vital function of his body or an organ thereof, or permanent serious health impairment or disfigurement, shall be punished by one to ten years \u2019 imprisonment.","(3) If the injured party dies as a consequence of sustained injuries according to paragraphs 1 and 2 of this Article, the perpetrator shall be punished by one to twelve years \u2019 imprisonment.\u201d","(c) Criminal Code of the Republic of Serbia (in force as of 1 January 2006)","36. Article 113 - Murder","Whoever causes the death of another shall be punished by imprisonment of between five and fifteen years.","37. Article 114 - Aggravated Murder","Whoever:","1) causes the death of another in a cruel or insidious manner;","2) causes the death of another by callous violent behaviour;","3) causes the death of another and with premeditation endangers the life of another person;","...","5) causes the death of another for the purpose of gain, or to commit or conceal another offence, or for callous revenge or other base motives;","...","9) with premeditation causes the death of several people, where this is not a case of manslaughter committed in the heat of passion, or infanticide, or mercy killing;","shall be punished by thirty to forty years \u2019 imprisonment.","38. Article 121 \u2013 Serious bodily harm","\u201c(1) Whoever causes serious injury to another, or serious impairment of another \u2019 s health, shall be punished by imprisonment of between six months and five years.","(2) Whoever causes serious injury to another or impairment of another \u2019 s health resulting in the endangering of the life of that person or the destruction or permanent significant damage to or weakening of a vital function of his body or an organ thereof, or permanent serious health impairment or disfigurement, shall be punished by one to eight years \u2019 imprisonment.","(3) If the actions specified in paragraphs 1 and 2 of this Article result in the death of the injured party, the offender shall be punished by two to twelve years \u2019 imprisonment.","...\u201d","39. Article 371 \u2013 Crime against humanity","\u201cWhoever, acting in violation of the rules of international law, orders as part of a wider and systematic attack against a civilian population: murder; placement of the group in living conditions calculated to bring about its complete or partial extermination, enslavement, deportation, torture, or rape; enforced prostitution; forcible pregnancy or sterilisation aimed at changing the ethnic balance of the population; persecution on political, racial, national, ethical, sexual or other grounds, detention or abduction of persons without disclosing information about such acts in order to deny such person legal protection; oppression of a racial group or establishing domination of one such group over another; or other similar inhumane acts that intentionally cause serious suffering or serious impairment of health, or personally commits any of the aforementioned offences, shall be punished by imprisonment of at least five years or imprisonment of between thirty and forty years. \u201d","40. Article 372 \u2013 War crime against civilian population","(1) Whoever, acting in violation of international law in time of war, armed conflict or occupation orders: an attack on the civilian population, a settlement, particular civilians, persons incapable of combat or members or facilities of humanitarian organisations or peacekeeping missions; wanton attack without target selection that harms the civilian population or civilian buildings under the special protection of international law; an attack against military targets knowing that such an attack would cause collateral damage among civilians or damage to civilian buildings that is evidently disproportionate to the military effect; the infliction on the civilian population of bodily injury, torture, inhumane treatment, biological, medical or other research experiments, or the taking of tissue or organs for transplantation or the performing of other acts that impair health or inflict great suffering or the deportation or relocation or forced change of nationality or religion; forcible prostitution or rape; applying intimidation and terror measures, taking hostages, collective punishment, unlawful deprivation of freedom and detention; deprivation of the rights to a fair and impartial trial; declaration of the prohibition, suspension or non-admissibility in court proceedings of the rights and acts of enemy nationals; the coercion into service of a hostile power or its intelligence or administration services; the coercion into military service of persons under seventeen years of age; forced labour; starvation of the population; unlawful seizure, appropriation or destruction of property not justified by military needs; taking unlawful and disproportionate contributions and requisitions; devaluation of local currency or unlawful issuing of currency, or personally commits any of the above offences, shall be punished by at least five years \u2019 imprisonment.","...\u201d","41. Article 374 \u2013 War crimes against prisoners of war","\u201c(1) Whoever, acting in violation of international law, orders the injury, torture, or inhumane treatment of prisoners of war, or biological, medical or other research experiments on them, or the taking of their tissues or body organs for transplantation or the commission of other acts harmful to health and causing them serious suffering, or compels prisoners of war to serve in the forces of a hostile power or deprives them of the rights to fair and regular trial; or personally commits any such offences, shall be punished by at least five years \u2019 imprisonment.","(2) Whoever orders the murder of prisoners of war or personally commits such an offence, shall be punished by at least ten years \u2019 imprisonment or imprisonment of between thirty and forty years.\u201d","4. The War Crimes Act 2003","42. This Act (published in Official Gazette of the Republic of Serbia no. 67\/03, amendments published in Official Gazette nos. 135\/04, 61\/05, 101\/07 and 104\/09) entered into force on 9 July 2003. The War Crimes Prosecutor, the War Crimes Police Unit and the War Crimes Sections within the Belgrade Higher Court and the Belgrade Court of Appeal were set up pursuant to this Act. They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see section 3 of this Act).","5. Practice of the OWCP","43. In a number of previous cases concerning war crimes, the OWCP has treated the war in Bosnia and Herzegovina between June 1992 and 1995 as an internal armed conflict (see the judgments in cases \u0160korpioni, Zvornik I, Bijeljina, Prijedor, Zvornik II and Stari Majdan ). The majority of the indictments in these cases came into being before 2006. The final judgments in most of these cases had been adopted by the domestic courts by 2010."],"57":["5.The applicant was born in 1959. He is currently detained at S\u0103poca Psychiatric Hospital, in a section of the hospital located in the municipality of Ojasca (Buz\u0103u County).","6.The applicant has been in receipt of a second-degree disability allowance since 1993.","A.The applicant\u2019s prosecution and psychiatric detention","7.On 29 January 2001, following the publication of an article in the national press and a programme broadcast on a national television channel, the police operating at Bucharest police station no. 20 initiated a criminal prosecution against the applicant. He was charged with incest and sexual corruption of his two under-age daughters, aged 15 and 16. He was alleged to have had sexual intercourse with his elder daughter and forced both his daughters to be present while he was having sexual intercourse with his wife.","8.On the same day the applicant was questioned by the police in the presence of an officially appointed lawyer regarding the charges against him, before being placed in police custody for twenty-four hours.","9.On 30 April 2001 the applicant, assisted by an officially appointed lawyer, was questioned by a prosecutor concerning the same charges.","10.On the same day the prosecution, with reference to Article 114 \u00a7\u00a7 1 and 2 of the Penal Code (CP), ordered the applicant\u2019s provisional detention in a psychiatric hospital with a view to conducting a medical examination to assess his capacity for discernment. The prosecution noted in that regard that a paranoid affective psychosis diagnostic had been posited on several occasions between 1994 and 1999. It stated the following:","\u201c... in the present case there is sufficient circumstantial evidence of the precarious state of health of the accused, who represents an extremely serious danger to society given that he is liable to commit further such antisocial acts.\u201d","11.On the same day the applicant was admitted to the Alexandru Obregia Psychiatric Hospital in Bucharest. He underwent psychiatric examinations which found, inter alia, paranoid impulsive tendencies with high conflict potential. Furthermore, the applicant\u2019s state was described as comprising irritability, suspicion, interpretative tendencies and potential aggression.","12.A forensic medical report was drawn up on 2November2001 establishing that the applicant suffered from chronic paranoid schizophrenia and lack of discernment. It recommended putting in place the compulsory medical treatment provided for by Article 113 CP.","13.A preliminary investigation was also instigated against the applicant for the rape of his wife.","14.The prosecution heard the applicant\u2019s wife and two daughters.","15.By decision of 27 February 2002 the prosecution, in the absence of a medical certificate and since the applicant\u2019s daughter had not confirmed the sexual relations with her father, ordered the closure of the criminal proceedings against the applicant for incest. Drawing on the statements of his two daughters, it also concluded that the applicant had forced them to be present while he was having sexual intercourse with his wife, thus committing offences of sexual corruption of minors, but decided to close the proceedings on that count owing to the applicant\u2019s lack of discernment, as found in the forensic medical report of 2 November 2001 (see paragraph 12 above). The prosecution further dropped the rape charge on the grounds that the applicant\u2019s wife had not lodged a criminal complaint against him. Lastly, it referred the case file to the competent court for confirmation of the preventive measure of medical detention.","16.By decision of 22 April 2002 Bucharest District Court 6 upheld the medical detention order. Listing the criminal charges against the applicant, the court stated the following:","\u201cIn the light of the findings of the psychiatric forensic medical report that N. suffers from chronic paranoid schizophrenia and lacks discernment as regards the offences he committed, and having regard to the recommendations of the [reporting] committee that the preventive detention measure should be imposed on the accused, the court accedes to the [prosecution\u2019s] request and, pursuant to Article 114 CP, confirms the provisional medical detention order and informs the Bucharest Health Department of the implementation of that order.\u201d","17.The applicant did not attend the hearing, nor was he represented by a lawyer in court.","18.The decision was posted on the door to the applicant\u2019s home and in the town hall of Bucharest District 6, where the applicant\u2019s home was located.","B.Applicant\u2019s detention in Alexandru Obregia and Poiana Mare Psychiatric Hospitals","19.From 30 January 2001 to 20 January 2003 the applicant was detained in the Alexandru Obregia Psychiatric Hospital. On 21 January 2003 he was transferred to the Poiana Mare Psychiatric Hospital, where he remained until 29January2006. The applicant was provided with a neuroleptic- and tranquilliser-based treatment.","...","D.First confirmation of detention by judgment of Buz\u0103u District Court on 11 September 2007","32.In March 2007, after the entry into force of the amendments to the Code of Criminal Procedure (CPP) requiring periodic and automatic judicial review of the detention (see paragraph90 below), the judge of Buz\u0103u District Court (\u201cthe delegated judge\u201d) ordered a psychiatric forensic medical report.","33.In July 2007 the competent medical board drew up a report based on the results of an examination of the applicant, the medical documentation transmitted by the psychiatric hospital, the report by his GP, a social welfare inquiry concerning the applicant conducted on 3May2006, the 22 April 2002 decision of Bucharest District Court 6 and the forensic medical report of 2 November 2001.","The board found that during his detention the applicant had expressed delusions of grandeur with transient psychotic relapses, had endeavoured to conceal his symptoms, had behaved in a calm, composed manner, had accepted his treatment, had refrained from stirring up trouble with the other patients and had shown little hostility during the treatment. It pointed out, however, that he had been hostile during the examination and had expressed delusional ideas of injustice and his intention to remedy the latter. It concluded that the applicant was suffering from chronic paranoid schizophrenia and that, having regard to the medical documentation, to the evolution in the patient\u2019s condition during his detention and to the psychiatric examination in issue, the detention measure should remain in place.","34.On 15 August 2007 the delegated judge invited Buz\u0103u District Court to replace the detention measure provided for in Article 114 CP with the compulsory medical treatment measure provided for in Article 113 CP.","35.On 11 September 2007 the applicant, assisted by an officially appointed lawyer, was heard by the court. He requested his release, seconded by his lawyer.","36.By decision of the same day, Buz\u0103u District Court decided to order the applicant\u2019s continued psychiatric detention. It reasoned as follows:","\u201cBy Criminal Decision No. 588 of 22 April 2002, Bucharest District Court 6 ordered N.\u2019s medical detention on the grounds that he had been charged with having committed the offence of incest, consisting of sexual relations with his 16-year-old daughter, in 2000, and the offence of sexual corruption on the grounds that on 21 January 2001 he had sexual intercourse with his wife in the presence of his two daughters.","The psychiatric forensic medical report [of July 2007] shows that the patient suffers from chronic paranoid schizophrenia and points to the advisability of maintaining the preventive detention measure laid down in Article 114 CP.","Having regard to the foregoing, the court ... decides to maintain the medical detention measure (Article 114 CP) imposed on patient N.\u201d","37.The applicant took cognisance of that decision in summer 2008, when he underwent a further forensic medical examination. He appealed.","38.By final decision of 19 December 2008 Buz\u0103u County Court, referring to the reasoning of the Court of First Instance, dismissed the appeal as manifestly ill-founded after having heard the applicant, assisted by an officially appointed lawyer.","E.Automatic review, and review at the applicant\u2019s request, of the detention measure","39.The applicant\u2019s detention measure was made subject to several judicial reviews by Buz\u0103u District Court and Buz\u0103u County Court. It transpires from the decisions adopted, of which the Court has copies, that the applicant was heard by both courts during the different sets of proceedings.","40.He was assisted by various officially appointed lawyers, who, in the proceedings completed before 2016, had confined themselves to referring to the findings of the forensic medical assessments carried out, and had either left it to the discretion of the courts whether or not to maintain the measure or objected to the lifting thereof.","41.Apart from the decisions adopted after 2015, the case file does not indicate whether the prior decisions had been served on the applicant.","42.According to the forensic medical reports drawn up after each review, the applicant, who had not fully acknowledged the fact of his mental illness, had been calm, had not refused his treatment and had refrained from causing trouble with the other patients. On the other hand, the reports stated that he had vehemently denied having committed the criminal offences with which he had been charged, claiming that his former wife had been plotting against him.","1.Reviews carried out in 2008","43.By decision of 13 October 2008 Buz\u0103u District Court maintained the detention measure in respect of the applicant. The court referred to the 22 April 2002 decision and to a forensic medical report drawn up following an examination of the applicant in May 2008, which had recommended maintaining the measure. On 9 January 2009, on appeal from the applicant, Buz\u0103u County Court upheld that decision.","2.Reviews carried out in 2010","44.By decision of 18 February 2010 Buz\u0103u District Court dismissed a request submitted by the applicant for the lifting of the detention measure. The court referred to a forensic medical report drawn up after an examination of the applicant the same month, which had recommended maintaining the measure and described the applicant\u2019s delusional ideas concerning the setting up of a new State, his lack of feasible future plans and the fact that he had not fully accepted his drug therapy.","45.By decision of 1 April 2010 Buz\u0103u District Court maintained the detention measure in respect of the applicant. It referred to the decision of 22 April 2002 to a forensic medical report drawn up after an examination of the applicant in December 2009, insofar as it recommended maintaining the measure and described the applicant\u2019s delusional ideas concerning the setting up of a new State and his lack of realistic future plans.","46.Furthermore, although this aspect was not mentioned by the court, it transpires from that report that the applicant\u2019s GP had noted an erotomaniac obsession with his former wife, which had indicated a total incapacity for social reintegration and would most likely have triggered conflicts or unforeseeable, potentially dangerous situations had he returned to the apartment where he had lived with his family. The report further noted that the applicant\u2019s friend, who had attended most of the medical boards\u2019 meetings, had come down emphatically in favour of the applicant\u2019s release, claiming that he would accommodate him indefinitely in the apartment which he shared with his mother. However, the assessment board doubted the reality of such support proffered by someone who was himself suffering from psychiatric problems. On the other hand, the report mentioned that the applicant had been plainly rejected by his daughters and his former wife, and that despite the rejection by his former wife and the fact that he himself considered that his detention was the result of scheming on her part, he intended to get back together with her if he was released.","47.By decision of 22 April 2010 the Buz\u0103u Court of First Instance dismissed the applicant\u2019s second application for release on the grounds that its decision of 18 February 2010 had meanwhile become final and was therefore res judicata. During the proceedings a forensic medical report had been drawn up on 9 March 2010, reaching conclusions similar to the findings of the report submitted in December 2009 (see paragraph45 above).","3.Reviews carried out in 2013","48.In November 2010, May and November 2011 and April 2012 the delegated judge requested the Buz\u0103u Institute of Forensic Medicine to carry out psychiatric assessments with a view to periodic reviews of the need to maintain the applicant\u2019s psychiatric detention.","49.The Institute of Forensic Medicine examined the applicant on the aforementioned dates but did not draw up or forward its reports until November2013. The reports confirmed the diagnosis of the applicant\u2019s condition and proposed maintaining the detention measure.","50.By four separate decisions adopted on 17 and 19December2013, the Court of First Instance, citing the case-law of the Court in matters of detention of persons suffering from mental disorders, maintained the detention measure. It referred to the findings of the above-mentioned forensic medical reports. In its decision of 17 December 2013 the court further had regard to a forensic medical report drawn up following an examination of the applicant carried out a few days previously, in December2013. Furthermore, it referred, broadly, to the \u201caim of the preventive measures, which was to put an end to a situation of danger and prevent the perpetration of acts punishable under criminal law\u201d, and concluded that the criteria set out in Article434\u00a71 CPP had been satisfied.","4.Judicial reviews carried out in 2014","51.By three separate decisions adopted on 4 February 2014, Buz\u0103u District Court maintained the applicant\u2019s detention measure on the basis of three psychiatric forensic medical reports drawn up following examinations of the applicant in November 2012, May 2013 and November2013. The Court has not received copies of those reports and decisions.","52.On 1 July 2014 S\u0103poca Psychiatric Hospital applied to the courts to declare the applicant incapable and place him under guardianship (see paragraph 77 et seq. below for the conduct of the related proceedings).","5.Review carried out in 2015","53.By decision of 19 February 2015, citing the Court\u2019s case-law in matters of detention of persons suffering from mental disorders, Buz\u0103u District Court maintained the detention measure in respect of the applicant. It referred to a forensic medical report drawn up after an examination of the applicant in September 2014, which recommended maintaining the measure and referred to the \u201caim of the preventive measures, which was to put an end to a situation of danger and prevent the perpetration of acts punishable under criminal law\u201d.","54.The operative part of the decision was served on the applicant on 26February2015.","55.In April 2015 the applicant appealed to the Judicial Inspection Board of the Higher Council of the Judiciary against the alleged practice of Buz\u0103u District Court of conducting retrospective reviews of the need to maintain the detention measure. By decision of 15June2015 the Judicial Inspection Board dropped the applicant\u2019s complaint. It confirmed the existence of the practice criticised by the applicant, but pointed out that it had been caused by the medical authorities\u2019 delay in forwarding their expert reports and not in any breach by the judges of their attributions.","6.Reviews carried out in 2016","(a)Courts\u2019 decisions","56.On 3 September 2015 the delegated judge requested the Buz\u0103u Institute of Forensic Medicine to conduct a further psychiatric expert assessment with a view to periodically reviewing the need to maintain the applicant\u2019s psychiatric detention. The applicant filed a separate action seeking the replacement of the detention measure with a compulsory medical treatment measure.","57.On 23 September 2015 the Forensic Medical Board also examined the applicant. The applicant\u2019s lawyer representing him in the present application before the Court sent a reasoned letter to the Board strongly advocating the replacement of the measure implemented in respect of his client.","58.On 1 October 2015 the Board drew up its forensic medical report recommending the replacement of the detention measure with a compulsory medical treatment measure. It emphasised that the persistence of the applicant\u2019s delusional ideas concerning the setting up of a \u201cnew State\u201d and his lack of social and family support, a factor conducive to social reintegration, supervision of his medical treatment and the management of the applicant\u2019s daily needs relating to the purported \u201cnew State\u201d, had justified maintaining the detention up until then. It noted that the applicant had not been aggressive to others or to himself during his detention. In that context, it welcomed the steps taken by S\u0103poca Hospital to place the applicant under guardianship, which it considered appropriate in the perspective of his release, given that the applicant had been rejected by his family (his brother, sister, former wife and daughters). Finally, the Board recommended that the social welfare services of the applicant\u2019s district of residence should be informed that they had to take the necessary action with a view to releasing him.","59.On 22 October 2015 Buz\u0103u District Court, which was responsible for the review, ordered a fresh forensic medical report from the National Institute of Forensic Medicine (IFM) in Bucharest.","60.On 10 November 2015 the applicant underwent a medical examination at the IFM.","61.On 12 April 2016 the IFM submitted its expert report, which stated, in particular, that:","\u2013the applicant was suffering from chronic delusional disorder with no prospect of improvement, but rather with future aggravation of the illness due to aging;","\u2013the illness as manifested in the applicant did not point to any risk of a danger to society, but the lack of feasible plans for the future foreshadowed future conflicts, a risk of advanced social deterioration and the impossibility of monitoring the evolution of his illness;","\u2013the applicant lacked any social support from his family or other persons of trust.","Under those conditions, the forensic medical board pointed out that the case presented a genuine psychiatric and deontological dilemma. Indeed, it considered that although, from the psychiatric point of view, the applicant could be released subject to compulsory medical treatment on the basis of Article 109 CP, that measure was inconceivable in the absence of social support. Consequently, it proposed provisionally maintaining the detention until the social welfare services could transfer the applicant to a specialised institution capable of providing him with appropriate living conditions and treatment.","62.By decision of 27 May 2016 the Buz\u0103u Court of First Instance, referring to the findings of the 12April2016 forensic medical rapport (see paragraph 61 above), ordered the maintenance of the detention measure.","63.The applicant appealed to Buz\u0103u District Court against that decision. He was represented by an officially appointed lawyer, who argued that the applicant\u2019s wishes should be complied with. Questioned by the court, the applicant stated that he would live with his former wife and one of his daughters in their apartment. He added that he had a retirement pension.","64.By judgment of 29 August 2016 Buz\u0103u County Court upheld the 27 May 2016 decision. It held as follows:","\u201cGiven the absence of improvement in the patient\u2019s state of health and the fact that the members of his family cannot monitor his continued medical treatment, and having regard to the nature of the charges against him which had resulted in his medical detention, family members against whom [the applicant] has committed antisocial acts cannot be expected to cohabit with him.","Nevertheless, the director of the establishment [where the applicant is detained] must inform the social welfare services responsible for transferring [the applicant] to a specialised institution capable of providing proper living conditions and treatment.\u201d","(b) Measures taken by the national administrative and hospital authorities","65.On 6 September 2016 the Director of S\u0103poca Hospital invited the Directorate General of Social Assistance and Child Welfare (\u201cDGASPC\u201d) in Bucharest District 6 to adopt welfare measures in respect of the applicant pursuant to the instructions set out in the forensic medical report of 12 April 2016.","66.By letter of 29 September 2016 the DGASPC replied that the applicant\u2019s former wife had informed it that she did not intend to be involved in any way in the process leading up to the applicant\u2019s release. Furthermore, the DGASPC pointed out that it had contacted the social welfare services in the county of residence of the applicant\u2019s sister with an eye to his possible placement with her. It also stated that the only centre in Bucharest District 6 which took in persons suffering from neuropsychiatric disorders could not admit the applicant owing to a lack of available places. Finally, it explained that it had also unsuccessfully attempted to contact other specialised and residential centres.","67.On 15 November 2016 the Director of S\u0103poca Hospital contacted the municipality of Unguriu, which had meanwhile been assigned the guardianship of the applicant .... The Director informed the municipal authorities the implementation of the preventive detention measure was temporary, and that they were required to act in the interests of the applicant, particularly with a view to his possible placement in a specialised institution after his release.","68.On 21 November 2016 Unguriu municipality replied that the guardianship order was not yet final and that it therefore could not act in respect of the applicant.","7.Reviews carried out in 2017","(a)Decision to replace the detention order","69.On 12 September 2016 the applicant underwent a further forensic medical examination.","70.The forensic medical report drawn up on 25January2017 recommended replacing the detention measure with a compulsory medical treatment order in view of the applicant\u2019s \u201clow level of dangerousness (while on treatment), compliance with the rules, absence of incidents, [and] the lengthy period of supervision\u201d. The report mentioned in particular:","\u2013the existence of a single, strange and systematic delusionary theme concerning the creation of a \u201cunited Somali State\u201d, which delusion did not however alter his compliance with hospitalrules;","\u2013lack of conflict situations and of incidents pointing to potentially aggressivebehaviour;","\u2013proper therapeutic cooperation during detention, despite his purely formal acquiescence in the reality of his illness and need for treatment;","\u2013absence of antisocial precedents \u2013 apart from the acts noted during his placement in detention \u2013 or consumption of psychoactive substances (drugs, alcohol);","\u2013negative effect of the extension of detention for social reasons on the development of the applicant\u2019s illness and physiological state, and","\u2013the guardianship order.","The report nevertheless emphasised the risk of decompensation of the illness, involving possible negative social consequences should the aftercare provided to the applicant by the body assigned guardianship prove inadequate.","71.On 21 February 2017 the applicant was heard by Buz\u0103u District Court. He was represented by an officially appointed lawyer, who advocated replacing the detention measure.","72.By final decision given on the same day, Buz\u0103u District Court ordered the replacement of the detention measure with a compulsory treatment order until the applicant had made a full recovery. It referred to the forensic medical report of 25January 2017 (see paragraph70 above) and to the \u201caim of the preventive measures, which was to put an end to a situation of danger and prevent the perpetration of acts punishable under criminal law\u201d.","b)Measures taken by the national administrative and hospital authorities","73.On 7 March 2017 the applicant asked to remain in psychiatric hospital until his social situation had been settled.","74.On 8 March 2017 the lawyer representing the applicant before the Court sent a letter to S\u0103poca Hospital recommending, in the framework of enforcement of the decision of 21 February 2017, the applicant\u2019s ultimate reintegration into society rather than his placement in a residential centre. He emphasised that releasing the applicant without adequate support would condemn him to vagrancy, destitution and the deterioration of his physical and mental health. Lastly, he requested the setting up of an interdisciplinary commission responsible for identifying the action to be taken on the applicant, on the model of the efforts expended in other countries to deinstitutionalise persons in medical detention.","75.On 9 March 2017 the applicant was transferred to another section of the same hospital for persons suffering from chronic illnesses.","76.On 14 March 2017 the Director of S\u0103poca Hospital invited la DGASPC to implement assistance measures in respect of the applicant pursuant to the final decision ordering the replacement of the detention measure. It also attempted, unsuccessfully, to contact two foundations in Bucharest for the same purpose.","...","100.The relevant provisions of several documents adopted in the framework of the United Nations, the Council of Europe and the European Union are described in the judgment in the case of M.S. v.Croatia (no.2) (no. 75450\/12, \u00a7\u00a7 45-61, 19 February 2015). Some of the documents which are particularly relevant to the present case are quoted below.","A.United Nations","101.The UN Convention on the Rights of Persons with Disabilities (\u201cCRPD\u201d), adopted by the General Assembly of the United Nations on 13 December 2006 (Resolution A\/RES\/61\/106), is geared to promoting, protecting and ensuring full enjoyment of all the human rights and fundamental freedoms by people with disabilities and promoting respect for their intrinsic dignity. At the end of September 2016 it had been ratified by 44 of the 47 member States of the Council of Europe. Romania ratified it on 31 January 2011. The relevant provisions of that Convention read as follows:","Article 13 \u2013 Access to justice","\u201c1.States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.","2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.\u201d","Article 14 \u2013 Liberty and security of person","\u201c1.States Parties shall ensure that persons with disabilities, on an equal basis with others:","a) Enjoy the right to liberty and security of person;","b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.","2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.\u201d","Article 19 \u2013 Living independently and being included in the community","\u201cStates Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:","a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;","b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;","c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.\u201d","102.In September 2015, at its 14th Session, the Committee on the Rights of Persons with Disabilities adopted the Guidelines on Article14 of the Convention on the Rights of Persons with Disabilities, which replaced the Declaration which they had adopted on the same subject in September2014 (see, for the extracts relevant to the present case, Hiller v. Austria, no.1967\/14, \u00a736, 22November 2016). The relevant parts of those Guidelines read as follows:","\u201cIII. The absolute prohibition of detention on the basis of impairment","6.There are still practices in which States parties allow for the deprivation of liberty on the grounds of actual or perceived impairment. In this regard the Committee has established that article 14 does not permit any exceptions whereby persons may be detained on the grounds of their actual or perceived impairment. However, legislation of several States parties, including mental health laws, still provide instances in which persons may be detained on the grounds of their actual or perceived impairment, provided there are other reasons for their detention, including that they are deemed dangerous to themselves or to others. This practice is incompatible with article 14 as interpreted by the jurisprudence of the CRPD committee. It is discriminatory in nature and amounts to arbitrary deprivation of liberty.","... [A]rticle 14 (1) (b) [CRPD] prohibits the deprivation of liberty on the basis of impairment even if additional factors or criteria are also used to justify the deprivation of liberty. ...","9.Enjoyment of the right to liberty and security of the person is central to the implementation of article 19 on the right to live independently and be included in the community. The Committee has stressed this relationship with article 19. It has expressed its concern about the institutionalization of persons with disabilities and the lack of support services in the community, and it has recommended implementing support services and effective deinstitutionalization strategies in consultation with organizations of persons with disabilities. In addition, it has called for the allocation of more financial resources to ensure sufficient community-based services.","IV. Involuntary or non-consensual commitment in mental health institutions","10.Involuntary commitment of persons with disabilities on health care grounds contradicts the absolute ban on deprivation of liberty on the basis of impairments (article 14(1)(b)) and the principle of free and informed consent for health care (article 25). The Committee has repeatedly stated that States parties should repeal provisions which allow for involuntary commitment of persons with disabilities in mental health institutions based on actual or perceived impairments. Involuntary commitment in mental health facilities carries with it the denial of the person\u2019s legal capacity to decide about care, treatment, and admission to a hospital or institution, and therefore violates article 12 in conjunction with article 14 [CRPD]. ...","VIII.Detention of persons unfit to plead in criminal justice systems and\/or lacking criminal responsibility","16.The Committee has established that declarations of unfitness to stand trial or non-responsibility in criminal justice systems and the detention of persons based on those declarations is contrary to article 14 of the Convention since it deprives the person of his or her right to due process and safeguards that are applicable to every defendant. The Committee has also called for States parties to remove those declarations from the criminal justice system. The Committee has recommended that \u2018all persons with disabilities who have been accused of crimes and... detained in jails and institutions, without trial, are allowed to defend themselves against criminal charges, and are provided with required support and accommodation to facilitate their effective participation\u2019, as well as procedural accommodations to ensure fair trial and due process. ...","XI.Security measures","20.The Committee has addressed security measures imposed on persons found not responsible due to \u2018insanity\u2019. Initially, the Committee requested that States parties modify legislation to ensure due process guarantees for the application of security measures to persons found to be exempt from criminal responsibility, and to ensure that persons with disabilities are subject to the same guarantees and conditions as those applicable to any other person. More recently, the Committee has also recommended eliminating security measures including those which involve forced medical and psychiatric treatment in institutions, while expressing concern about security measures that involve indefinite deprivation of liberty and absence of regular guarantees in the criminal justice system.\u201d","103.In the findings which it adopted on 2 September 2016 in the framework of Communication No. 7\/2012 brought by Marlon James Noble against Australia, the Committee on the Rights of Persons with Disabilities found a violation of Article 14(1)(b) CRPD on the grounds that the author, who had an intellectual disability, had been detained in prison after the criminal proceedings against him on several charges of sex abuse had been discontinued on the grounds that he had been declared unfit to plead. The Committee emphasised that the national authorities had acknowledged that prison was not the appropriate environment for the author but that his imprisonment was warranted owing to the lack of alternatives and available social services. The Committee concluded that the person\u2019s detention had been ordered after the examination by the national authorities of the possible consequences of his intellectual disability, in the absence of any criminal conviction, which had made his disability the main reason for his detention, in breach of Article 14(1)(b) CRPD. In its findings the Committee further criticised the fact that the author had never had the opportunity to have the criminal charges against him determined and his status as an alleged sexual offender potentially cleared, owing to his intellectual disability. It observed that that situation had pointed to discriminatory treatment and amounted to a breach of the author\u2019s right of access to justice and the right to a fair trial.","104.A report presented in July 2005 by the Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health to the UN Commission on Human Right following his visit to Romania from 23 to 27August2004 (E\/CN.4\/2005\/51\/Add.4), included the following remarks:","\u201c65.A primary concern of the Special Rapporteur is the continuing widespread provision of mental health care in large psychiatric institutions, with inadequate rehabilitation services, and the insufficient number of community-based mental health-care and support services. The centralized and institutionalized model of care denies those with mental disabilities the rights to be, as far as possible, treated and cared for in the community in which they live, and to live and work in the community. The Special Rapporteur emphasizes that the right to health gives rise to an entitlement to health care, including mental health care, which is geographically accessible, designed to improve the health status of patients, and scientifically and medically appropriate.\u201d","105.The relevant parts of the report presented in April 2016 by the Special Rapporteur on Human Rights and Extreme Poverty to the UN Human Rights Council on his mission to Romania from 2 to 11November2015 (A\/HRC\/32\/31\/Add.2) read as follows:","\u201c45.... Romania still has high levels of institutionalization of adults with disabilities. While the deinstitutionalization of persons with disabilities has long been a strategic objective, all too few concrete measures have been undertaken to realize this goal. According to the authorities, at least 17,567 adults with disabilities still remain in residential institutions as of 30 June 2015.","46. The Special Rapporteur visited two residential institutions in Prahova county. At one, devoted to the recovery and rehabilitation of adults with mental disabilities, the Director made it clear that none of the residents is expected to ever recover and that no resident has been rehabilitated. The residents are thus destined to remain in the institutions until their death, with no prospect of community living. The institution that the Special Rapporteur visited is the rule rather than the exception. The management representatives of both residential institutions visited spoke of their interest in deinstitutionalizing their residents, but had concluded that it was not feasible due to obstacles such as opposition by local residents to including persons with disabilities in their communities and the lack of housing to accommodate such persons. It is also apparent that investments continue to be made to renovate and expand existing institutions, rather than build the infrastructures and services necessary to enable persons with disabilities to live independently.\u201d","B.Council of Europe","106.On 30 November 2016 the Council of Europe adopted its new Disability Strategy 2017-2023, whose overall goal is to achieve equality, dignity and equal opportunities for persons with disabilities. This strategy requires ensuring independence, freedom of choice, full and active participation in all areas of life and society (point 16). The strategy document is intended to guide and support the work and activities aimed at implementing the UNCPRD and carried out by the Council of Europe, its member States and other stakeholders both at national and local levels (point 17).","107.In its report published on 24 September 2015 following its June 2014 visit to S\u0103poca Psychiatric Hospital, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) noted, in connection with overcrowding in the various units of the hospital:","\u201c124.... Furthermore, the CPT considers that a structural response should be provided and polices developed to promote deinstitutionalisation and facilitate the introduction of a wide range of locally-based alternative modes of treatment (day hospitals, community houses, etc.). That would certainly help greatly reduce the constant pressure on the capacities of the S\u0103poca Psychiatric Hospital. In that connection, after the visit the Romanian authorities also pointed out that the local authorities had been contacted with a view to setting up socio-medical care centres and community services with a view to reducing overcrowding at the hospital and responding more appropriately to the needs of certain patients.\u201d","As regards safeguards provided to the persons concerned under security measures, the CPT stated:","\u201c151....Examination of the patients\u2019 personal files showed that they were in good order. The procedural deadlines had been respected, and a lawyer had been present at the court hearings. Both the hospitals and the patients were notified in writing of judicial decisions to retain institutionalisation. It transpired from conversations with patients that the latter were usually interviewed by the assessment board and informed of their continued placement in the institution. Patients could be assisted by their lawyers during such interviews. However, the patients\u2019 and lawyers\u2019 attendance was not mentioned in the b\u2019s minutes of proceedings. The CPT recommends that the Romanian authorities ensure in future that the minutes explicitly list the parties invited to attend and those actually present.\u201d","As regards reviews of detention measures, the CPT found as follows:","\u201cIn practice, there is a report by the patient\u2019s doctor, a hearing by the assessment commission made up of the forensic specialist, one to three psychiatrist(s) from the hospital in question, the patient\u2019s psychiatrist \u2013 who plays no part in the decision-making \u2013 and a secretary.\u201d","108.In his report (CommDH(2014)14) published on 8 July 2014 in the wake of his visit to Romania from 31 March to 4 April 2014, the Council of Europe\u2019s Commissioner for Human Rights, Nils Mui\u017enieks, mentioned his concern about the fact that despite all existing safeguards, persons with disabilities seldom benefited from a judicial review of their institutionalisation (\u00a7\u00a7 14-25). He referred in that regard to the case-law of the Court, the conclusions of the CPT following its visits to Romania and those of the European Union Agency for Fundamental Rights (\u201cFRA\u201d).","Moreover, he emphasised that the main obstacle preventing persons with disabilities from living in the community was the lack of alternatives to institutional care, which, in practice, made residential institutions a life-time arrangement for the majority of institutionalised persons (\u00a7\u00a7 26-27)."],"58":["6.The applicant was born in 1960. He currently lives in Belgium, but at the material time lived in Podgorica, Montenegro.","7.The applicant is a Roma and a Muslim. On an unspecified date in 2006 the applicant and his family moved into an apartment in a building constructed for socially disadvantaged families. According to the applicant, because of constant attacks in which his car and the apartment were damaged, the perpetrators of which were never found, he installed a camera outside his apartment.","A.Events between 26 May and 22 September 2009 and the ensuing proceedings","8.On 26 May 2009 the applicant\u2019s next-door neighbour, Y, was watching a kickboxing match between a Montenegrin and a Bosnian contestant on television. The applicant overheard the next-door conversation as the doors of both his and Y\u2019s (adjacent) terraces were open. When the Bosnian kickboxer appeared with his coaches, all of whom were Muslim, Y allegedly said that he would slaughter one of them, and X, another neighbour, made a disparaging reference to the Bosnian kickboxer\u2019s Turkish descent. According to the applicant, X left Y\u2019s apartment at a certain point and went to his car, from which he took a gun. Y said \u201cturn it to the left\u201d, which was the direction of the applicant\u2019s terrace. This was followed by nine to ten gunshots, and Y\u2019s calling out insulting references to the applicant\u2019s \u201cTurkish mother\u201d. X, Y and Y\u2019s family picked up the spent cartridges from the ground afterwards.","9.On 9 September 2009 three neighbours, V (Y\u2019s wife), S and B, were talking on the next-door terrace. As he was on his terrace, the applicant overheard the conversation. V said that she was fighting \u201ccockroaches, frogs, nits and lice, and all sorts of other things\u201d, which had been brought by \u201cthose dirty gipsies\u201d (\u201cod ovija gabelj\u010dina\u201d). V continued by saying that B and S \u201c[could] use a hammer and a pruning knife (kosijer), and [she] would use an axe\u201d. S replied that \u201cher [people] carried swords\u201d. V said that the axe could serve just as well. S answered \u201cno, no, he is a Muslim, I have a sword\u201d. B said \u201call is fine, whatever is more readily available\u201d (\u201cvalja \u0161to god prije stigne\u201d). V said loudly \u201cAn axe, an axe, a sledgehammer, like the one used on pigs\u201d.","10.On 15 September 2009 Y was having an argument with M, another neighbour, when X joined and said, among other things, that if he \u201csaw red\u201d, he would \u201ckill both you and your brother here like a dog\u201d (\u201ce \u0107u te ubit ka psa i tebe i brata o\u0111e\u201d), apparently pointing at the applicant\u2019s apartment, adding \u201cdirty gypsy\u201d (\u201ccigane glibavi\u201d) and \u201ctrash\u201d (\u201covo sme\u0107e\u201d). This was witnessed by M\u2019s brother, D. It is unclear from the case\u2011file if the applicant was present during the argument or if he learned about it in some other manner.","11.On 22 September 2009, the day of Ramadan Bayram, a religious holiday celebrated by the applicant and his family, a large cross was drawn on the applicant\u2019s apartment door, and a large message was written on the wall next to it saying \u201cmove out or you\u2019ll bitterly regret it\u201d (\u201cseli se, usko \u0107e ti bit\u201d). The applicant called the police, who came and took photographs of the cross and the message. The same day the applicant lodged a criminal complaint with the police against the families of X, Y, S and B, and one more family living in the building.","12.Between 19 and 22 October 2009 the police interviewed X, Y, V, B, M, D, and three other neighbours.","13.X, Y, V, and B denied the applicant\u2019s allegations.X and Y also denied that they had watched the match together, and Y submitted that everything he had said had been addressed to the Bosnian kickboxer. Both X and Y confirmed that they had heard the shots but said they did not know who had fired them. Y and his children had indeed picked up the spent cartridges from the ground, not in order to hide anything, but because the children found the spent cartridges interesting to play with. Neither X nor Y knew who was responsible for the incident of 22 September 2009, but they suspected the applicant himself.","14.V submitted that the discussion of 9 September 2009 had referred to another person sought by the police at the time in relation to various attacks, and they had been discussing how they would defend themselves in the event of an attack. B denied that she had been in V\u2019s apartment on that occasion.","15.M confirmed that during the argument with Y, X had come and said that if he \u201csaw red\u201d he would \u201ckill them, as well as this gypsy\u201d (\u201cnapravi\u0107u d\u017eenaze i vama, a i ovom ciganinu\u201d), pointing in the direction of the applicant\u2019s flat. M had assumed that he had meant the applicant. D confirmed M\u2019s statement.","16.The other two neighbours were not aware of any conflicts amongst the neighbours, or that anybody ill-treated or insulted the applicant on the basis of his national origin. They had no idea who could be responsible for the incident of 22September 2009. The third neighbour, N.L., confirmed the applicant\u2019s submissions in relation to another incident (see paragraph30(b) below).","17.On 26 October 2009 the case file was transmitted to the State prosecutor\u2019s office (Osnovno dr\u017eavno tu\u017eila\u0161tvo) in order to assess whether there were any elements of the criminal offence of jeopardising someone\u2019s security (ugro\u017eavanje sigurnosti).","18.On 18 November 2009 the applicant lodged a criminal complaint with the higher State prosecutor\u2019s office (Vi\u0161e dr\u017eavno tu\u017eila\u0161tvo) in Podgorica in relation to the above events. He filed the complaint against X, Y, V, S and B for incitement to ethnic, racial and religious hatred, discontent and intolerance (izazivanje nacionalne, rasne i vjerske mr\u017enje, razdora i netrpeljivosti, hereinafter \u201chate crime\u201d) in connection with discrimination, racial and otherwise (see paragraphs 38-39 below). He also enclosed relevant video material.","19.On 24 November 2009 the higher State prosecutor\u2019s office rejected the complaint on the grounds that there were no elements of any hate crime or other criminal offence within its competence. The applicant was notified that he could take over the prosecution as a subsidiary prosecutor and that the case file had already been forwarded to the State prosecution service on 26October 2009 (see paragraph 17 above).","20.On 25 November 2009 the State prosecution service issued an official report (slu\u017ebena zabilje\u0161ka) finding that the impugned words of 26May, as well as those of 9 September 2009, which referred to the use of swords and axes, had not been addressed to either the applicant or anybody close to him, and that the incident of 15 September 2009 could not be considered a threat. It was concluded that none of those three events had involved an element of jeopardising someone\u2019s security, or any other criminal offence subject to public prosecution. The incident of 22September 2009, however, could be considered as jeopardising security.On 27 November 2009 the State prosecution service asked the police to undertake measures in order to find the perpetrator. At the same time the police were informed that the applicant\u2019s criminal complaint in this regard would be kept until the perpetrator was found, or until 22September2012, when the prosecution of that criminal offence would become time-barred.On 31 December 2009 the State prosecutor informed the applicant of this, as well as of the fact that he could file a criminal complaint against a specific person with appropriate evidence (uz valjane dokaze).","21.On 14 December 2009 the applicant filed an application for an investigation (zahtjev za sprovo\u0111enje istrage) with the High Court (Vi\u0161i sud) in Podgorica. He enclosed the relevant videos, and proposed that the court hear a number of neighbours, including those he suspected.","22.On 17 March 2010 the High Court dismissed that application for lack of evidence. In particular, the submitted video material was considered to be inadmissible, having been obtained without a prior court order, and the court observed that the suspected neighbours had denied that what they had said related to the applicant. It was further held that the applicant had not submitted any evidence in relation to the incident of 22 September 2009, nor had he called the police at the time to come to the scene and \u201ccollect the necessary material for further analysis\u201d in order to verify his suspicions.","23.On 26 March 2010 the applicant appealed against that decision. He submitted, in particular, that on 22 September 2009 he had actually called the police, who had only taken photographs of the scene. The fact that they had failed to do what they should have done was in no way his fault, as it was not up to him to tell the police what to do, but only to lodge a criminal complaint, which he had done.","24.On 31 May 2010 the Court of Appeal dismissed his appeal for lack of evidence, in substance endorsing the reasoning of the High Court. In doing so, the court held that the applicant\u2019s objections as to the gathering of evidence by the police \u201ccould not be the subject of [that] court\u2019s assessment\u201d.","25.On 19 July 2010 the applicant lodged a constitutional appeal. He maintained, inter alia, that because of the failure of the domestic authorities to protect him and his family, they had had to move out of the apartment (see paragraph 35 below). He relied on the right to private life, the right to an effective domestic remedy, and the prohibition of discrimination.","26.On 25 March 2014 the Constitutional Court dismissed the applicant\u2019s constitutional appeal. It considered that it should be examined under Articles 6 and 14 of the Convention and corresponding Articles of the Montenegrin Constitution, and found there had been no violation of any of them.","27.On 7 April 2016, as regards the incident of 22 September 2009, the police informed the State prosecutor\u2019s office that \u201c[they] had acted on [the applicant\u2019s] criminal complaint and undertaken measures in accordance with their authority, having dedicated a significant amount of time [to the complaint]. While carrying out those official actions [they] had not found material evidence which would undoubtedly indicate the perpetrator of this criminal offence\u201d.","B.Other relevant facts","28.The Government submitted information from the applicant\u2019s criminal record reflecting convictions for minor offences in 1981, 1990 and 2002. For each of these offences he had received a suspended sentence.","29.On 20 December 2007 the applicant was celebrating Bayram. X and Y claimed before the domestic bodies that the applicant had celebrated inappropriately by playing loud music from very early in the morning, shooting in the air and calling Turks and Wahhabi (vehabije) to jihad. He had apparently also tried to hit X with a flagpole (koplje od zastave). The applicant submitted that X and W (the husband of X\u2019s niece) had been insulting him and his family, while X had also spat on him, shouted obscenities and thrown stones at him, causing him minor physical injuries. On 30 September 2008 the applicant was found guilty in misdemeanour proceedings of disturbing public order and peace (naru\u0161avanje javnog reda i mira) by shooting several shots in the air from his starting pistol on 20December 2007. He was sentenced to a ten-day period of imprisonment and the pistol was confiscated. The decision was upheld by a second\u2011instance body on 23December 2008.In relation to the same incident, on 29July 2008 X and W were charged with violent behaviour against the applicant. In the course of the proceedings, a medical expert witness submitted that the applicant had a contusion (nagnje\u010denje) on the left part of the back of his head, which would have been classified as a minor physical injury at the time it had been inflicted. The medical expert submitted that the injury had been caused by a blunt object, possibly a \u201clarger stone\u201d, and that it could not have been caused by sand or \u201cstones the size of beans\u201d. On 24 May 2011, after the case had been remitted, the Court of First Instance acquitted X and W, considering that it had not been proved that they had committed the offence.","30.The applicant reported the following events to the police, but to no avail: (a) on 6 October 2008 an unknown person had thrown a brick and broken one of the windows of his apartment; (b) on 11 September 2009 S and her husband, Z, had tried to hit the applicant\u2019s parked car with their own car; this was confirmed by another neighbour, N.L., who witnessed this event and was interviewed by the police in October 2009 (see paragraph 16 above); (c) on 16 October 2009 S had asked Y aloud if he was going to \u201cslaughter\u201d somebody, and he had answered that he was, both of them looking at the applicant; S had said that he would \u201cmake [his] car dirty with that man\u201d; (d) on 19 December 2009 an unknown person had fired several shots in front of the applicant\u2019s apartment, below the children\u2019s bedroom; the applicant gave the police eight bullet shells that he had found on the ground; (e) on 1 January 2010, shortly after midnight, X had thrown firecrackers at the applicant\u2019s car and broken its windscreen; he had also thrown a glass bottle at the applicant and a metal bar at his son, swearing profusely and threatening to slaughter them all; this had been followed by gunshots.","31.On 21 October, 23 October and 30 October 2009 X, V and M.\u0106. respectively lodged criminal complaints against the applicant for insulting and provoking them, and for playing loud music and calling Turks and Wahhabi to jihad. On 25December 2009 those complaints were rejected by the State prosecutor.","32.On 24 April 2010 the Court of First Instance (Osnovni sud) in Podgorica found the applicant guilty of recording Y without authorisation and eavesdropping (prislu\u0161kivanje) on him, and sentenced him to 40 days\u2019 imprisonment, suspended for a period of one year. That judgment was upheld by the High Court on 15 October 2010. On 26 December 2012 the Constitutional Court dismissed a constitutional appeal by the applicant in this regard.","33.On 7 May 2010 the applicant was fined 800 euros (EUR) in minor offence proceedings (prekr\u0161ajni postupak) for threatening (izazivanje osje\u0107aja ugro\u017eenosti) V, a decision which was upheld on 7 July 2010.","34.On 26 May 2010 the applicant lodged a criminal complaint against X with the State prosecution service, alleging that in August and September 2009 he had threatened to \u201ccut [the applicant\u2019s] gypsy head off and impale it on a pike\u201d (nabiti na kolac). On 27 July 2010 the deputy State prosecutor rejected the criminal complaint. On 12 August 2010 the applicant filed a private criminal action (optu\u017eni predlog) against X, who was acquitted by the Court of First Instance on 7 June 2011. The court found that X had indeed said the impugned words in front of a witness, and that the words could have made the applicant feel frightened and insecure, but the court could not accept \u201cthat [the applicant] had taken those words seriously, especially since the witness, who was the only one who had heard the words, had not taken them seriously, which was why he had informed the applicant about them only two months later\u201d. That decision was upheld by the High Court on 7 March 2012.","35.On 6 July 2010 X threatened the applicant\u2019s daughter by saying that he would kill and slaughter them all, with his hands stretched towards her neck. The girl apparently fainted and was admitted to hospital unconscious. The same day the applicant and his family moved out of their apartment. They were allegedly on a hunger strike for the next twenty-four days, seeking help from various State institutions."],"59":["10.The applicant was born in 1969 and lives in Vila Nova de Gaia. The applicant\u2019s husband, Mr Ant\u00f3nio Rui Calisto Fernandes, was born in 1957. He died on 8 March 1998 following a series of medical problems that occurred after he had undergone minor surgery for the removal of nasal polyps.","A.The sequence of events leading to the death of the applicant\u2019s husband","1.Treatment in Vila Nova de Gaia Hospital","11.On 26 November 1997 Mr Fernandes was admitted to the ear, nose and throat (ENT) department of Vila Nova de Gaia Hospital (\u201cthe CHVNG\u201d) for a nasal polypectomy. He underwent the operation on 27November 1997 and was discharged from hospital on 28 November 1997 at 10 a.m.","12.On 29 November 1997, at 1 a.m., the applicant took her husband to the emergency department of the CHVNG because he was suffering from violent headaches and was in an agitated state. There he was examined by the doctors on duty, in particular by a neurologist. The doctors considered that Mr Fernandes was suffering from psychological problems and prescribed tranquilisers. The applicant claims that they recommended her husband\u2019s discharge but that she objected.","13.In the morning Mr Fernandes was examined by the new medical team on duty. At 10 a.m. he underwent a lumbar puncture which revealed that he had bacterial meningitis. He was transferred to the hospital\u2019s intensive care unit.","14.On 30 November 1997 a scan revealed a cerebral oedema. On 2December 1997 another scan revealed that the cerebral oedema had diminished.","15.On 5 December 1997, following an improvement in his clinical condition, Mr Fernandes was transferred to the hospital\u2019s general D. ward, where he was under the care of Dr J.V. He was diagnosed with two duodenal ulcers on 10 December 1997.","16.Mr Fernandes was discharged from hospital on 13 December 1997 as his condition was considered to be stable. A follow-up scan as an outpatient was recommended.","17.On 18 December 1997 Mr Fernandes, who was suffering from vertigo and headaches, was admitted to the emergency department of the CHVNG. He was examined by Dr J.V., who kept him under observation because he had acute diarrhoea, abdominal pain and severe anaemia. MrFernandes received blood transfusions.","18.On 19 December 1997 an endoscopy was performed on MrFernandes, confirming that he had a gastroduodenal ulcer.","19.On 23 December 1997 Mr Fernandes was discharged from hospital. He was prescribed a special diet and medication. A medical appointment was fixed for 9 February 1998.","20.The applicant\u2019s husband continued to suffer from severe abdominal pain and diarrhoea. On 9 January 1998 he returned to the emergency department of the CHVNG. He was examined by Dr J.V., who did not consider it necessary to admit him. Mr Fernandes therefore returned home the same day.","21.On 25 January 1998 Mr Fernandes was readmitted to the CHVNG. A colonoscopy revealed infectious ulcerative colitis. Bacteriological tests showed the presence of the Clostridium difficile bacterium. Mr Fernandes was placed on a drip and treated with antibiotics.","22.At the request of the applicant and her husband, Dr J.V. discharged the latter on 3 February 1998. Dr J.V. prescribed oral treatment and referred MrFernandes for further treatment in the hospital\u2019s outpatient department.","2.Treatment in Santo Ant\u00f3nio General Hospital in Oporto","23.On 17 February 1998 Mr Fernandes was admitted to Santo Ant\u00f3nio General Hospital in Oporto after he was found to be suffering from chronic diarrhoea and microcytic anaemia. He underwent various examinations including a colonoscopy, an endoscopy and blood tests. The medical team considered several possible causes, including an infection with the Clostridium difficile bacterium, but all these possibilities were subsequently ruled out. However, a cytomegalovirus was detected and treatment was given.","24.On 5 March 1998 Mr Fernandes was examined by a doctor who judged the situation to be under control.","25.On 6 March 1998 Mr Fernandes\u2019s condition deteriorated. He was examined by a doctor who suspected a possible perforated viscus. An X\u2011ray and an abdominal ultrasound were carried out. The latter showed ascites in the abdomen but did not confirm the initial diagnosis. At 5.30p.m. the applicant\u2019s husband was examined by another doctor who detected some resistance to abdominal palpation. A gas analysis showed metabolic alkalosis, but there were no signs of hypocalcaemia. Asigmoidoscopy was performed which showed that the applicant\u2019s husband had rectocolitis.","26.On 7 March 1998 at 1 p.m. the applicant\u2019s husband was placed on oxygen because he had difficulty breathing. At 3 p.m. Mr Fernandes was examined by a general physician and subsequently by a surgeon. The latter decided that urgent surgery was needed as there was widespread peritonitis. Mr Fernandes was taken to the operating theatre at 4 p.m. and was brought out again a few minutes later in order to be prepared for surgery, in particular by being given a blood transfusion. He re-entered the operating theatre at 8 p.m. He died the following day at 2.55 a.m.","27.According to the death certificate issued by Santo Ant\u00f3nio Hospital, the applicant\u2019s husband died from septicaemia caused by peritonitis and a perforated viscus.","B.Proceedings brought by the applicant","28.On 13 August 1998 the applicant wrote a joint letter to the Ministry of Health, the regional health authority for the North region and the Medical Association, stating that she had received no response from the hospitals to explain the sudden deterioration in her husband\u2019s health and his death.","1.Proceedings before the Inspectorate General for Health","29.On 30 October and 23 December 1998 the regional health authority for the North region sent the applicant copies of the reports drawn up by the CHVNG and Santo Ant\u00f3nio Hospital on the basis of her husband\u2019s medical records.","30.On 30 May 2000 the applicant requested an update on progress in the proceedings from the regional health authority, stating that she had still received no clear explanations concerning the events preceding her husband\u2019s death. In a letter of 5 July 2000 the authority informed her that the file had been sent to the Inspectorate General for Health (Inspe\u00e7\u00e3o\u2011Geral da Sa\u00fade \u2013 \u201cthe IGS\u201d) with a view to the opening of an investigation.","31.By an order of 20 September 2000 the Inspector General for Health ordered an investigation (processo de averigua\u00e7\u00f5es).","32.On 6 November 2001 an inspector was appointed to head the investigation.","33.On 7 February 2002 the IGS informed the applicant that evidence would be taken from the members of the medical team which had treated her husband and that an expert medical report would be prepared.","34.The applicant gave evidence on 3 April 2002.","35.On 23 September 2002 expert medical reports were requested. Reports prepared by experts in the fields of internal medicine, gastroenterology and general surgery were submitted in November 2002. According to the reports, in view of the deterioration in his state of health after the nasal polypectomy, it would not have been possible to save the applicant\u2019s husband\u2019s life.","36.The report of the investigation was submitted on 28 November 2002. It found, on the basis of the expert medical reports received, that the treatment administered to the applicant\u2019s husband had been appropriate.","37.In an order of 12 December 2002 the Inspector General for Health declared the investigation closed, finding that there had been no medical negligence and that there were no grounds for instituting disciplinary proceedings against the doctors who had treated the applicant\u2019s husband.","38.In a letter of 17 February 2003 the applicant appealed against the order. She argued that the final report had not answered her questions, complaining about areas of uncertainty and about the duration of the investigation and its findings.","39.On 28 March 2003 the Inspector General for Health informed the applicant that he had set aside the order of 12 December 2002 and ordered the reopening of the investigation.","40.On 26 September 2005, in view of the questions raised by the applicant, the medical experts were requested to provide additional information.","41.A new investigation report was submitted on 23 November 2005, clarifying the facts and taking account of the answers provided by the three medical experts. The report stated that there were no grounds for criticising the health-care personnel who had been involved in the care of the applicant\u2019s husband in the CHVNG and Santo Ant\u00f3nio Hospital, as the patient had received proper and appropriate medical assistance in terms of his diagnosis, supervision and treatment. The report further noted that his discharge had been justified on each occasion in view of the improvement in his state of health. The report concluded as follows:","\u201cThe results of the investigation ... following the reopening of the proceedings and the fresh inquiries and medical reports do not indicate that there was any negligent or careless conduct in breach of good medical practice. There is therefore no need to take legal or disciplinary action against any persons involved in the [patient\u2019s] care ...\u201d","42.Taking this report into account, the Inspector General for Health made a fresh order discontinuing the proceedings on 27 December 2005.","43.In a letter of 1 February 2006 the applicant appealed against that order, complaining of unclear points and omissions. She also raised the possibility that the sudden deterioration in her husband\u2019s health and his eventual death might have been caused by bacteria present in the operating theatre on the day of the nasal polypectomy, that the diagnoses may have been made in haste and that there may have been negligence and carelessness in the medical treatment administered to her husband. She further complained that the internal medicine and gastroenterology reports had been prepared each time by the same experts. The applicant therefore requested the reopening of the investigation and the preparation of a fresh expert medical report.","44.The Inspector General for Health wrote to the applicant on 2March 2006 informing her that he had set aside his previous order and ordered fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology.","45.The applicant gave evidence again on 27 April 2006.","46.The medical experts submitted their reports on 20 May and 10July 2006. The expert in gastroenterology stated that it was possible, albeit rare, for a nasal polypectomy to cause meningitis. He further considered that the applicant\u2019s husband had received appropriate treatment but that his discharge on 3 February 1998 may not have been wise in view of his clinical condition. The expert concluded that the applicant\u2019s husband had suffered a series of complications which were uncommon but could occur, and that he had received proper medical care at the CHVNG. As to the care in Santo Ant\u00f3nio Hospital, the expert considered that the condition of the applicant\u2019s husband had been extremely complicated and had given rise to doubts as to the best way to proceed. In his report, the expert in internal medicine rejected the idea of a hospital-acquired infection on the grounds that, had that been the case, the antibiotics administered to the patient would have had no effect. In his view, the meningitis had developed unexpectedly. He further took the view that the applicant\u2019s husband\u2019s discharge on 3February 1998 had been appropriate but that he should have continued to be monitored as an outpatient.","47.On 25 July 2006 a report was drawn up on completion of the investigation, which concluded as follows:","\u201c...","The content of the most recent expert medical reports shows ... that there are no grounds for a finding of disciplinary liability for negligence against any of the health\u2011care professionals involved in A.\u2019s medical treatment...","... the decision by the assistant doctor [J.V.] to refer the patient for outpatient treatment was not appropriate and sufficient from a clinical viewpoint in so far as, in order to prevent a recurrence of the colitis caused by Clostridium difficile ..., the patient should have remained in hospital under close medical supervision ...","...","Hence, the doctor in question did not act with the necessary care and diligence, thereby incurring disciplinary liability on account of his negligent conduct in the medical assistance provided ... in D. ward of the CHVNG\u2019s medical department between 25 January and 3 February 1998.","The medical opinions make no criticisms of the assistance provided in the gastroenterology department of Santo Ant\u00f3nio General Hospital in Oporto ...\u201d","48.In the light of this report the Inspector General made an order on 26July 2006 for the opening of disciplinary proceedings against Dr J.V.","49.By a letter dated 31 July 2006 the applicant was informed that the disciplinary proceedings initiated against Dr J.V. would be stayed pending the outcome of the criminal proceedings (see paragraphs 59-68 below).","2.Proceedings before the Medical Association","50.In the meantime, on 31 August 1998, the Medical Association acknowledged receipt of the applicant\u2019s letter of 13 August 1998, informing her that steps would be taken in response to it.","51.The case was referred to the Medical Association\u2019s regional disciplinary council for the North region. The latter obtained the patient\u2019s medical records and sought the opinions of four specialist panels: gastroenterology, infectious diseases, general surgery and ear, nose and throat (ENT).","52.In its report of 14 July 1999, the gastroenterology panel issued the following conclusions:","\u201c...","A simple X-ray of the abdomen performed the day before the patient\u2019s death did not detect any dilatation or perforation of the colon.","The patient\u2019s death was caused by peritonitis as a result of the perforation of the duodenal ulcer. The difficulties in diagnosing the condition were understandable in view of the patient\u2019s serious clinical condition and the fact that his abdominal pains were explained by the inflammatory disease in the colon.","The role of the corticosteroids in aggravating or reactivating the peptic ulcer ... is not currently considered a risk factor ... However, given that the patient had already experienced one episode of intestinal bleeding, there would have been grounds for weighing up the use of these drugs.","...","The decisions to discharge the patient [from hospital] may have delayed the diagnosis or the commencement of treatment. Nevertheless, after examining the documents submitted to me, I am unable to confirm whether these discharge decisions adversely affected his diagnosis or programme of treatment.","...\u201d","53.The conclusions of the report of 17 April 2000 by the infectious-diseases panel read as follows:","\u201c1.In our opinion the diagnosis of meningitis, most likely resulting from the nasal polypectomy, was inexplicably delayed. The fact that there was no one on the medical team trained in this type of diagnosis (for example, a specialist in infectious diseases) may be regarded as the only explanation for such an incident. However, this was not the immediate cause of the patient\u2019s death.","2.In our view, too long a period elapsed between the diagnosis of the perforation in the duodenal ulcer and surgery.","3.The procedure has been undermined to an incalculable extent by the fact that no autopsy was performed, although an autopsy is mandatory (mandat\u00f3ria) in cases of this type in order to shed light on the chain of events.\u201d","In its report the panel further held as follows:","\u201cThe inhuman conditions described in this process, as regards how the patient was treated, are another example of the situation encountered on a daily basis in our hospitals; a reflection of the appalling structural and operational conditions which require urgent analysis and change.","This board of the Infectious-Diseases Panel of the Medical Association must have a fundamental role in advocating the rights of patients and doctors in order to create better conditions of care for the former and better working conditions for the latter.","We reiterate, once more, the need to consider the creation of infectious-diseases departments\/units in hospitals of the same type as Vila Nova de Gaia Hospital, in order to improve the quality of care in this regard.\u201d","54.In a report of 24 April 2001 the general-surgery panel found that there had been no negligence or medical malpractice in the hospitals concerned. The report read as follows:","\u201c1. A perforated duodenal ulcer requires immediate surgery. In the present situation the perforated ulcer ... was difficult, if not impossible, to diagnose given the clinical context in which it occurred. Furthermore, in view of the seriousness of the patient\u2019s clinical condition, the approach to surgery had to be given careful consideration and the patient had to be prepared by means of various measures.","...\u201d","55.In a report dated 1 August 2001 the ENT panel concluded as follows:","\u201c1.Meningitis following micro-endoscopic surgery for nasal polyps is described as one of the (major) complications of this type of surgery, estimated in the literature to occur in between 0.6% and 1% of cases. These figures will be higher in the event of a repeat operation, as in the present case (surgery was performed in 1993 as stated on page 314 of the file concerning the operation).","2.The post-operative CT scan of the brain carried out on 29 November 1997 does not show any discontinuity in the bones at the base of the skull ... which suggests that no invasive endocranial surgery was carried out.","3.The description of the surgery performed on the patient on 26 November 1997 (page 310 of the file) does not give any indication of clinical malpractice or negligence.","4.No ENT procedures were performed during any of the patient\u2019s subsequent stays in Vila Nova de Gaia Hospital or in Santo Ant\u00f3nio Hospital.\u201d","56.In an order of 28 December 2001 the regional disciplinary council for the North region decided, after having examined the conclusions of the different specialist panels, to take no further action on the applicant\u2019s complaint, on the ground that there was no evidence of misconduct or medical negligence.","57.The disciplinary council observed the following:","(i)meningitis was a complication that could arise in between 0.6% and 1% of cases following a nasal polypectomy; the figures were liable to be higher for a repeat operation, as in the case in question;","(ii)the applicant\u2019s husband had received appropriate treatment during his various hospital stays;","(iii)the patient\u2019s bacterial meningitis (Pseudomonas) had been treated properly;","(iv)although the infectious-diseases panel had suggested that the presence of a specialist in that discipline might have enabled a diagnosis to be made sooner, this had not been a decisive factor in the development of the clinical situation;","(v)the perforation of the duodenal ulcer had been the cause of the peritonitis. This had been difficult to diagnose in view of the patient\u2019s serious clinical condition, a fact acknowledged by the gastroenterology and general-surgery panels;","(vi)although the infectious-diseases panel had considered that too long a period had elapsed between the diagnosis of the perforated duodenal ulcer and surgery, the time taken to prepare for the operation had been justified since the patient had been suffering from intestinal disease and had severe anaemia, sepsis and a fluid and electrolyte imbalance, as noted by the general-surgery panel.","58.On 29 April 2002 the applicant lodged an appeal against that order with the Medical Association\u2019s National Disciplinary Council. On 18 March 2003 the appeal was declared inadmissible as being out of time.","3.Criminal proceedings before the Vila Nova de Gaia District Court","59.On 29 April 2002 the applicant lodged a complaint for negligent homicide with the Oporto criminal investigation and prosecution department.","60.She gave evidence on 7 June 2002.","61.By order of the Criminal Investigation Court of 27 September 2002 the applicant was given leave to intervene in the proceedings as an assistant to the public prosecutor (assistente).","62.On 7 December 2007 the public prosecutor\u2019s office made its submissions, charging Dr J.V. with homicide by gross (grosseira) negligence. In support of their decision the prosecuting authorities referred to the report appended to the IGS order of 25 July 2006. They considered that Dr J.V. should not have discharged the applicant\u2019s husband on 3February 1998 in so far as the patient\u2019s clinical condition had been problematic and he had been infected with the Clostridium difficile bacterium.","63.The case was referred to the Vila Nova de Gaia District Court. During the trial the court heard evidence from the applicant, the accused, eight doctors who had been involved in treating the applicant\u2019s husband in the CHVNG and in Santo Ant\u00f3nio Hospital, and the five medical experts appointed in the context of the proceedings before the IGS. The court also sought the opinion of the Medical Association\u2019s Disciplinary Council.","64.On 15 January 2009 the District Court acquitted Dr J.V. of the charges against him. In particular, it took the view that the findings made by the IGS in its order of 26 July 2006 could not be taken into consideration as they had not been confirmed by the five medical experts who had given evidence during the trial.","65.As to the facts, the District Court considered, inter alia, the following to be established:","\u201cThe patient\u2019s hospitalisation on 18 December 1997 ... was not the result of a lack of medical supervision of his clinical condition ... since it was unconnected to the complications arising out of the meningitis. In fact, it resulted from acute anaemia caused by intestinal bleeding from a duodenal ulcer; ...","The decisions to discharge the patient on 13 and 23 December 1997 were appropriate, given that, in the former case, the problem of bacterial meningitis had been resolved, [the patient] had completed the course of antibiotics, he no longer had any symptoms or fever, had a slightly increased white-blood cell count, a falling neutrophil count and normal sedimentation rate, and was not complaining ... and, in the latter case, that is to say, the patient\u2019s hospitalisation from 18 to 23 December 1997, the patient was not complaining of abdominal pain, diarrhoea or bleeding ... with the result that it was possible to continue treating his ulcer with a dietary regime while monitoring him on an outpatient basis ...","When the patient was admitted to Santo Ant\u00f3nio Hospital, laboratory tests were carried out for Clostridium difficile. The results were negative on two occasions.\u201d","66.On the subject of the surgery preceding the death of the applicant\u2019s husband, the District Court observed as follows:","\u201c... the patient was in a very serious clinical state, with septic shock and multiple organ dysfunction. For that reason, he was placed on artificial ventilation and vasoactive drugs and fluids were administered ..., together with hydrocortisone to deal with possible acute adrenal insufficiency (fal\u00eancia supra-renal aguda), and broad-spectrum antibiotics;","... in this medical context the patient\u2019s prospects of survival were very uncertain, in view of the septic shock and multiple organ dysfunction;","... a simple abdominal X-ray and an abdominal and pelvic ultrasound scan were therefore requested, which did not reveal a perforation of the intestine.\u201d","67.In the District Court\u2019s view, it had not been demonstrated that the care provided to the applicant\u2019s husband during his stay in hospital from 25January to 3 February 1998 had not been in accordance with good medical practice, or that he should have been kept in hospital for longer. The court therefore concluded that there was no causal link between the treatment administered by Dr J.V. to the applicant\u2019s husband in the CHVNG and his death, which had been caused by a perforated viscus that was unconnected to the colonic disease treated by the accused. It held:"," \u201c...there was no evidence to show that the treatment administered by the accused for the Clostridium difficile infection was incomplete, that the patient was discharged prematurely on 3 February 1998 or, in sum, that the accused was responsible for the death of the patient on 8 March 1998.\u201d","68.The applicant did not appeal against that judgment.","4.Proceedings before the Oporto Administrative and Fiscal Court","69.On 6 March 2003 the applicant brought an action in the Oporto Administrative and Fiscal Court against the CHVNG, Santo Ant\u00f3nio Hospital and the eight doctors who had been involved in treating her husband while he was in hospital, claiming compensation for the damage she had suffered on account of her husband\u2019s death. She alleged, inter alia,","(i)that her husband\u2019s meningitis had been caused by Pseudomonas cepacia bacteria which, she alleged, had been present in the operating theatre during the nasal polypectomy;","(ii)that the meningitis had been diagnosed too late, allowing the illness to become serious;","(iii)that the administering of excessive doses of medication and the lack of a suitable prophylactic had caused the duodenal ulcer which had led to her husband\u2019s death.","70.In the context of these proceedings the applicant was granted legal aid in the form of exemption from payment of the court fees and the fees of a lawyer of her own choosing.","71.Between 4 and 24 April 2003 the eight doctors contested their standing to be sued (ilegitimidade passiva), relying on Article 2 of Legislative Decree no. 48051 of 21 November 1967.","72.On 16 April 2007 the court gave a preparatory decision (despacho saneador) specifying which facts were considered to be established and which remained to be established. In accordance with Article 2 of Legislative Decree no. 48051 of 21 November 1967 it further held that the doctors among the defendants did not have standing in so far as they had been sued only for negligent conduct. Accordingly, it declared the claim admissible only in respect of the hospitals.","73.On 17 January 2011 the applicant gave evidence.","74.During the three hearings the court heard evidence from the following witnesses:","(i)eleven doctors who had been involved in treating the applicant\u2019s husband during his various stays in the CHVNG and Santo Ant\u00f3nio Hospital;","(ii)the general practitioner of the applicant\u2019s husband;","(iii)two doctors who were friends of the family;","(iv)the inspector who had written the final report on completion of the investigation within the IGS; and","(v)the medical experts in gastroenterology and internal medicine whose reports had formed the basis for the last IGS decision.","75.On 24 May 2011 the court made an order concerning the facts. Taking into account the medical records of the applicant\u2019s husband and the various statements made by the witnesses who had given evidence, the court considered it established, inter alia,","(i)that a polypectomy was a straightforward surgical operation which posed minimal risk and that the patient had been informed accordingly;","(ii)that the operating theatre had been aseptic and sterilised at the time of the polypectomy;","(iii)that the origin of the bacterium linked to the patient\u2019s meningitis had not been proven. The court dismissed the possibility of a hospital-acquired infection, pointing out that in that case the prescribed treatment would have had no effect;","(iv)that the medication prescribed in the CHVNG and Santo Ant\u00f3nio Hospital could cause intestinal problems and hence could give rise to colitis;","(v)that the applicant\u2019s husband had been treated with drugs to protect his stomach in the CHVNG;","(vi)that the gastroduodenal perforation had not been detected until the operation was being performed; and","(vii)that the applicant\u2019s husband had died from septicaemia caused by peritonitis resulting from a perforated viscus.","76.On 23 January 2012 the Oporto Administrative and Fiscal Court delivered a judgment in which it dismissed the applicant\u2019s claims. On the facts, the judgment stated, inter alia, as follows:","\u201cThe Pseudomonas bacterium was resistant to the various antibiotics that were tried ...","When the patient attended Vila Nova de Gaia Hospital on 18 December 1997 he had completely recovered from his bacterial meningitis.","...","On 25 January 1998 the patient again attended Vila Nova de Gaia Hospital, where he was diagnosed with pseudomembranous colitis caused by Clostridium difficile ... The colitis was successfully treated in that hospital ...;","Throughout his stay in Vila Nova de Gaia Hospital he was given treatment to protect his stomach.","...","When he was admitted (to Santo Ant\u00f3nio Hospital on 17 February 1998) he had chronic diarrhoea ... and was diagnosed with suspected inflammatory bowel disease. Medication was prescribed in keeping with that diagnosis.","...","While in Santo Ant\u00f3nio Hospital he was kept under observation, received daily medication and underwent various tests.","...","On 6 March 1998 ... nothing had made it possible to predict the gastroduodenal perforation ... the tests carried out that day ... did not confirm the existence of any duodenal perforation such that the situation had to be kept under review;","...","It was not until 7 March 1998 that the patient\u2019s acute abdominal syndrome was diagnosed, calling for urgent surgery ... it was only during the operation that the patient was found to be suffering from a duodenal perforation;","...","The perforation had occurred 24 hours before surgery.\u201d","77.The judgment concluded as follows:","\u201c ... in view of the facts that have been established, it is not possible to determine at what point the defendants, by their actions or omissions, breached the rules of good medical practice ...","It is considered established that [Mr Fernandes\u2019s] death was caused by sepsis due to peritonitis resulting from the perforation of his duodenal ulcer...","No doubts persisted regarding the diagnosis of meningitis, the procedure adopted, the sequence of treatment and the resolution of the problem, as all the various after\u2011effects were duly explained.","Hence there were no differences of opinion regarding the need to prescribe and use antibiotics in the context of [Mr Fernandes\u2019s] meningitis and other conditions, although it was explained that colitis is a bacterial imbalance caused by antibiotics (the very ones which have undesirable effects on intestinal flora).","Nevertheless, it was not possible to determine the agent or identify the cause of the bacterium linked to the meningitis and it could therefore not be established with certainty whether the sinus surgery was the source of the problem or was simply one factor causing the infection. The other factors and circumstances preceding the operation ... thus cease to be relevant.","It is nonetheless surprising that the death of the claimant\u2019s husband should have occurred ... given that he had been strong and in good health and that the microsurgery on his sinuses was a straightforward operation. However, it has not been demonstrated that the therapy or medication administered to [Mr Fernandes] at any point was unsuited to his clinical condition. There was therefore no breach of the rules of good medical practice (either by action or omission). Accordingly, one of the cumulative conditions for establishing civil liability, namely an unlawful act, is absent.\u201d","78.The applicant appealed against the judgment to the Supreme Administrative Court. She contested the facts deemed to be established, arguing that only by studying the circumstances before, during and after the operation would it be possible to understand what type of bacterium her husband had contracted. She further reiterated that her husband had contracted a hospital-acquired infection and had not received adequate treatment either in the CHVNG or in Santo Ant\u00f3nio Hospital.","79.On 26 February 2013 the Supreme Administrative Court dismissed the applicant\u2019s claims, upholding the judgment of the Oporto Administrative and Fiscal Court. It first of all declined to review the facts considered by the lower court to have been established, on the grounds that the hearings had not been recorded and that no new documents had been submitted which could cast doubt on the evidence forming the basis for the court\u2019s decision. The Supreme Administrative Court summed up its judgment as follows:","\u201cThe lower court considered, in sum, that it had not been possible to identify the nature and origin of the bacterium that caused the meningitis and that it had not been demonstrated that the illnesses subsequent to [the patient\u2019s] treatment and recovery from that illness ... had been the consequence of incorrect diagnosis or treatment.","For that reason it found that no breach of the rules of good medical practice had been demonstrated that might have caused the patient\u2019s death.","The claimant takes a different view of the matter. However, she bases her arguments mainly on allegations that have not been proven, and in particular the allegation that the meningitis was caused by the Pseudomonas bacterium, allegedly acquired in hospital ... and that the patient did not receive appropriate prophylactic treatment to protect his stomach during his treatment with antibiotics.","Accordingly, these claims can be summed up as allegations of medical negligence which are unsupported by the established facts.\u201d"],"60":["1. The applicant, Mr Peter Harvey, is a British national, who was born in 1959 and lives in Mansfield. He was represented before the Court by Ms K. Lea, a lawyer practising in Nottingham.","2. The United Kingdom Government (\u201cthe Government\u201d) were represented by their Agent, Ms M. Macmillan, of the Foreign and Commonwealth Office.","A. The circumstances of the case","3. At the relevant time, the applicant was a schoolteacher with around twenty years of teaching experience. In December 2008 he was diagnosed with depression and granted sick leave from work. He returned to work in April 2009.","4. On 8 July 2009, following provocative behaviour from several pupils in his class, he assaulted a pupil with a dumbbell. The pupil sustained a serious head injury requiring hospital treatment. It was also alleged that during the incident the applicant had kicked a female pupil and thrown the dumbbell at another pupil. The applicant was arrested and remanded into custody.","5. He was subsequently charged with attempted murder and grievous bodily harm with intent under section 18 of the Offences against the Person Act 1861. He pleaded guilty to grievous bodily harm (without specific intent) under section 20 of the 1861 Act. On 29 April 2010 he was found not guilty of attempted murder and of grievous bodily harm with intent following a jury trial in the Crown Court. At the sentencing hearing on 24 May 2010, the judge sentenced the applicant to two years \u2019 community service, taking into account the time spent in pre-trial detention.","6. The judge referred to significant mitigation in the case, including the applicant \u2019 s depressive illness, difficult personal and family circumstances at the relevant time and his previously unblemished record of teaching over nearly twenty years. The judge declined to make a disqualification order against the applicant precluding him from working with children, on the basis that he was satisfied that the applicant was unlikely to commit any further offence against a child, largely because as a teacher he was subject to a professional code of practice and disciplinary arrangements and he had recognised that his career teaching children was over.","7. On 27 May 2010, following disciplinary proceedings, the applicant was dismissed from his post for gross misconduct.","B. The barring procedure","1. The Independent Safeguarding Authority","8. On 16 July 2010 the local authority referred the matter to the Independent Safeguarding Authority (\u201cISA\u201d), a body established by the Safeguarding Vulnerable Groups Act 2006 (\u201cthe 2006 Act\u201d), to consider whether to bar the applicant from working with children or vulnerable adults. Meanwhile, the applicant commenced voluntary work at a small local charity, run by the Church, providing support to homeless persons.","9. By a letter dated 17 November 2010, the ISA informed the applicant that it had received the referral and was minded to bar him from working with children and vulnerable adults in light of his conviction. He was therefore invited to make written representations as to why he should not be barred. He submitted written representations through his solicitors on 7 January 2011 and disputed that he represented a threat to children when operating in a supervised environment, or a threat to vulnerable adults in any circumstances.","10. By letter dated 10 February 2011 the ISA notified the applicant of its decision to include the applicant \u2019 s name in both the Children \u2019 s Barred List and Adults \u2019 Barred List. It referred to his conviction and considered that he had engaged in conduct which had endangered a child and which constituted \u201crelevant conduct\u201d, within the meaning of the 2006 Act, justifying inclusion in the barred lists.","11. As regards the risk to vulnerable adults, the letter stated:","\u201cWe also remain of the view that you may harm a vulnerable adult and it is appropriate to include you on the Adults \u2019 Barred List. This is because vulnerable adults with learning difficulties or mental health issues could exhibit similarly challenging behavioural traits as children in certain situations. There are insufficient reassurances that should you engage in \u2018 regulated activity \u2019 in a vulnerable adult setting, you would not pose a similar significant risk to those in your care.\u201d","12. The accompanying \u201cBarring Decision Process\u201d document, prepared by an ISA case worker, reviewed the applicant \u2019 s conduct and the risk he posed. The document explained that the applicant was considered to pose a significant risk to children if placed in a similar situation in the future. As regards vulnerable adults, the document stated:","\u201cIt would not be unreasonable to surmise that vulnerable adults, particularly those with learning difficulties or mental health issues, could exhibit similar challenging behavioural traits in certain situations. Because of this there are real concerns that [the applicant] might react in a similar manner as he did at [school], if he was placed in a difficult position with vulnerable adults. While there is no evidence to indicate that he has worked in a paid or voluntary capacity with vulnerable adults in the past, he might in the future and his risk is such at the present time that he would pose a risk of harm if he was allowed to do so. [The applicant \u2019 s] harmful behaviour clearly constitutes risk of harm and a minded to bar decision is proportionate on the Adults \u2019 Barred List.\u201d","13. As to whether it was appropriate to bar the applicant from working with children or vulnerable adults, the document concluded that it was. In particular, as regards the bar on working with vulnerable adults, the document stated:","\u201cThere is no evidence to indicate that [the applicant] has worked in paid or voluntary capacity with vulnerable adults in the past. However, consideration needs to be given to whether it would be appropriate for him to work in regulated activity within a vulnerable adults setting in the future. It is important to consider if [the applicant] was to obtain employment with vulnerable adults with learning difficulties or mental health issues, they could exhibit similar challenging behavioural traits as children in certain situations. There is a potential, significant risk that if he was placed in a similarly difficult situation in a vulnerable setting he could react in a similar manner with potential fatal consequences. Therefore it is deemed appropriate to include [the applicant \u2019 s] name on the Adults \u2019 Barred List.\u201d","14. The applicant subsequently ceased his voluntary work with the homeless charity, having received legal advice that the work was potentially contrary to the ISA barring decision.","2. The Upper Tribunal","15. The applicant appealed the decision to include him in the Adults \u2019 Barred List to the Upper Tribunal. He did not appeal the decision to include him in the Children \u2019 s Barred List. He argued that the ISA had wrongly found that he had kicked a female pupil and that the decision to bar him from working with vulnerable adults was disproportionate and thereby in breach of Article 8 of the Convention. He obtained a report from a consultant psychiatrist, Dr M., to assist the tribunal to assess his level of risk. The report confirmed that the applicant \u2019 s diagnosis was one of a recurrent depressive disorder and that as a result of depression and considerable work stress he had assaulted his pupil in 2009. It noted that, since that time and with medical assistance, his situation had significantly improved.","16. Following receipt of the psychiatric report, the parties requested that the proceedings be stayed in order to allow the ISA to review its decision. A stay was granted.","17. By letter dated 11 November 2011 the ISA confirmed its decision to include the applicant \u2019 s name on the Adults \u2019 Barred List but retracted its finding of fact that the applicant had kicked a female pupil in light of further inquiries into that incident. The ISA review letter noted that Dr M. \u2019 s report showed that, since the incident, the applicant had taken significant steps to address his long-term issues with depression through psychiatric support, psychotherapy and support from his general practitioner. However, while acknowledging the significant progress that he had made, the letter emphasised that a relatively short period of time had elapsed since this marked improvement. Although Dr M. \u2019 s report was compelling, it was also apparent from the report that he believed that \u201csome basic safeguards would seem prudent\u201d to mitigate against future risk. The ISA concluded that Dr M. \u2019 s report served to strengthen its view that there continued to be an unacceptable risk, noting that the report proposed a risk assessment for any post for which the applicant wished to apply and recorded the applicant \u2019 s recognition of the fact that he should not work alone. The ISA noted that it had no scope to impose a \u201cpartial bar\u201d or any type of restriction on the applicant which would allow the recommendations made by Dr M. to be incorporated into any future employment and, accordingly, it had to balance the level and nature of the risk identified against the impact on the applicant of continued inclusion on the Adults \u2019 Barred List.","18. On 20 March 2012 the Upper Tribunal quashed the ISA decision to include the applicant \u2019 s name in the Adults \u2019 Barred List. It commented that the ISA caseworker had not specifically addressed proportionality in the context of the decision-making process. The tribunal considered the correct approach to its review of the ISA decision was that set out in its previous judgment in SB, at that time pending before the Court of Appeal (see further \u201cRelevant domestic law and practice\u201d, below), namely that it should examine the evidence and allocate weight to it, and decide whether the balance had been struck in the right place. It noted that the ISA had not had the opportunity of hearing the applicant give evidence whereas the tribunal, with two experienced, specialist members, had heard his evidence and tested it in some detail. It considered that the ISA had \u201cfundamentally misconstrued\u201d Dr M. \u2019 s report since the tribunal failed to see how that report could have strengthened ISA \u2019 s view that there continued to be an unacceptable risk. It was of the view that Dr M. \u2019 s suggestion that there be a basic risk assessment before the applicant was engaged in work with vulnerable adults was a very sensible one and one which, the tribunal understood, would in any event be carried out by the Church in respect of the homelessness project in which the applicant was interested.","19. The tribunal therefore directed the ISA to remove the applicant \u2019 s name from the Adults \u2019 Barred List. It also directed that:","\u201c...there is to be no publication of the any matter likely to lead members of the public directly or indirectly to identify any person, including the Appellant, who has been involved in the circumstances giving rise to this Appeal\u201d.","3. The Court of Appeal","20. The ISA appealed to the Court of Appeal on four grounds, namely: (i) that the Upper Tribunal had erred in law in its approach to proportionality by failing to give appropriate weight to the ISA decision; (ii) that the ISA decision was not, as a matter of law, disproportionate; (iii) that the Upper Tribunal had failed to take into account the nature of the risk posed by the applicant; and (iv) that the Upper Tribunal had erred in placing reliance on safeguards in place at the applicant \u2019 s proposed place of work and had failed to take into account the risk that would be posed if the applicant worked with vulnerable adults in other environments.","21. The Court of Appeal subsequently handed down judgment in SB, overturning the judgment of the Upper Tribunal in that case and clarifying the correct approach to be taken when reviewing an ISA decision (see \u201cRelevant domestic law and practice\u201d, below).","22. The functions of the ISA were transferred to the Disclosure and Barring Service in December 2012 and the appeal continued in the latter \u2019 s name.","23. In his skeleton argument of 1 February 2013, the applicant invited the Court of Appeal to uphold the decision of the Upper Tribunal that the decision to include him in the Adults \u2019 Barred List was disproportionate and thus unlawful. He argued, in particular, that proportionality had always to involve the striking of a fair balance between the rights of the individual and the interests of the community, inherent in the whole of the Convention; that where the individual had not been interviewed by the primary decision-maker, the appellate authority was much better placed to investigate the facts and test the evidence; that it was for the court before which the issue was raised to decide whether Convention rights had been breached and that this court was not merely to concern itself with whether the primary decision-maker took the relevant rights into account; and that the court had to treat with appropriate respect the views of those who had the primary responsibility to make the judgments in question, especially where they had addressed their minds to the relevant issues.","24. On 13 March 2013 the Court of Appeal quashed the decision of the Upper Tribunal and reinstated the ISA decision. Lord Justice Treacy, delivering the lead judgment (with which the other two members of the Court of Appeal agreed), considered that the process through which the ISA had worked in coming to its judgment that the applicant should be included on the Adults \u2019 Barred List was a \u201cthorough and careful\u201d one. That view had then been reviewed in the light of Dr M. \u2019 s evidence, and the confirmed conclusion had \u201cappropriately recognised the force of Dr M. \u2019 s evidence in relation to the improvement in [the applicant \u2019 s] condition, but went on, after due consideration of the whole picture, to conclude that it did not provide a reason for reversing the decision, and if anything strengthened it\u201d. The judge continued:","\u201c39. I have found in the documentation relating to the ISA \u2019 s decision-making the clearest evidence of careful thought and reasoning. I therefore find the Upper Tribunal \u2019 s view that the ISA had not given any detailed thought to its decision and that it had failed to carry out a balancing exercise to be very surprising. It seems to me to be clearly wrong.","40. Very considerable reliance was placed by the Upper Tribunal on Dr M. \u2019 s report and the ISA is criticised for having \"misconstrued the evidence of Dr M.\". Insofar as the Upper Tribunal placed additional reliance on the fact that it had heard oral evidence from Mr Harvey, I accept the submission of [the applicant \u2019 s lawyer] that in reality this does no more than confirm the evidence already before the tribunal from Dr M. to the effect that Mr Harvey had improved and was currently well motivated to avoid a repetition of his conduct. However, it seems to me that the Upper Tribunal \u2019 s reliance on Dr M. \u2019 s evidence, together with its dismissal of the ISA \u2019 s approach to it, was misconceived.\u201d","25. He also found that the Upper Tribunal was wrong to treat the ISA \u2019 s view of the safeguards mentioned by Dr M. as strengthening its case. He noted that the safeguards mentioned related to a man whose condition had improved, but only in the context of a person suffering from a recurrent depressive disorder and whose improvement was over a relatively short time span. These considerations, which weighed with the ISA, appeared to have been ignored by the Upper Tribunal, which had also concluded that the safeguards \u201cwill be in place\u201d, thus rendering an absolute bar disproportionate. However, the judge noted, there was no guarantee whatsoever that the safeguards which Dr M. thought prudent and which would exist under the aegis of the work which the applicant envisaged would necessarily apply in other employments or other situations. The judge considered that the Upper Tribunal \u2019 s assertion that those safeguards would be in place could not safely be made, nor could the safeguards be implemented as conditions attaching to any future work with vulnerable adults.","26. The judge saw \u201cconsiderable force\u201d in the ISA \u2019 s argument that the Upper Tribunal had not taken the approach to proportionality mandated by the Court of Appeal in SB, which required it to accord weight to the judgment of the ISA. The judge therefore concluded:","\u201c47. The effect of the Tribunal \u2019 s decision was wrongly to characterise the ISA \u2019 s decision as an error of law. There was, in my judgment, no such error made by the ISA whose valid decision was wrongly quashed.\u201d","27. In these circumstances, the Court of Appeal considered that it was not appropriate to remit the case to the Upper Tribunal and instead ordered that the decision of the ISA be restored.","28. The Court of Appeal also observed:","\u201c17. There have been amendments to the 2006 Act pursuant to the Protection of Freedoms Act 2012 since the Upper Tribunal decision. However, none of those amendments impacts upon this appeal or the question of the correctness of the Upper Tribunal \u2019 s decision.","18. A recent change which will have an impact for the Respondent is that, whereas previously ISA \u2019 s decision would not be subject to review for a period of ten years, the position has now been altered so that a review may take place at any time if new information emerges, or there has been a change of circumstances, or it becomes apparent that ISA has made an error. See Section 18A of the Safeguarding Vulnerable Groups Act 2006 as inserted by the Protection of Freedoms Act 2012\u201d.","4. The Supreme Court","29. The applicant sought permission to appeal from the Supreme Court. He argued, inter alia, that the 2006 scheme was unlawful in failing to provide for a full-merits review on appeal. If there was no requirement for a full \u2011 merits review on appeal, then at the very least the Upper Tribunal had to be permitted to carry out a robust proportionality exercise. In his submission, if the narrow remit afforded by the Court of Appeal to the Upper Tribunal in his case were left undisturbed, this would mean that the barring scheme was incompatible with Articles 6 and 8 of the Convention. He further argued that the scheme was unlawful in that it did not allow the Disclosure and Barring Service to implement a partial bar on working with vulnerable adults (the \u201call-or-nothing\u201d ground). The absolute bar that it was obliged to impose was disproportionate and in breach of Article 8. The Disclosure and Barring Service therefore had to be empowered to impose a partial bar so that in appropriate cases individuals could only be excluded from positions where they would pose a significant risk to the relevant vulnerable group. If no such power could be read into the 2006 Act then a declaration of incompatibility under section 4 of the Human Rights Act 1998 (see \u201cRelevant domestic law and practice\u201d, below) should be made.","30. On 6 June 2013 the Supreme Court refused permission to appeal. It stated that the application did not raise a point of law of general public importance and that the \u201call-or-nothing\u201d ground did raise a point of law of general public importance but that it was too late to raise it at this stage.","C. Relevant domestic law and practice","The Safeguarding Vulnerable Groups Act 2006","(a) Inclusion in the Barred Lists","31. Section 1 of the 2006 Act and its Schedule 1 created the ISA, to consist of a chairman and members appointed by the Secretary of State who appeared to him to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults. Appointment was for a term not exceeding five years and a member could be removed by the Secretary of State on various specified grounds, including that he was unable or unfit to carry out his functions.","32. Section 2 of the Act requires the ISA to keep two lists of individuals deemed unsuitable to work with children and vulnerable adults respectively. Section 3 provides that a person whose name has been included on one of the barred lists is precluded from taking part in \u201cregulated activity\u201d with the relevant group. Section 5 and Schedule 4 define \u201cregulated activity\u201d. The definition of \u201cregulated activity\u201d was amended by the Protection of Freedoms Act 2012 to focus on work which involves close and unsupervised contact with vulnerable groups, thus reducing its scope. Section 7 makes it an offence for a person included in the barred lists to engage in \u201cregulated activity\u201d.","33. The criteria for inclusion in the barred lists are set out in Schedule 3. Under paragraph 3 of Schedule 3, the Disclosure and Barring Service (formerly the ISA) is obliged to include a person in the Children \u2019 s Barred List if satisfied, following consideration of representations by the affected person, that he has engaged in \u201crelevant conduct\u201d and that it is appropriate to include him in the list. \u201cRelevant conduct\u201d is defined in paragraph 4 as including conduct that endangered a child.","34. Paragraph 11 of Schedule 3 provides that the Disclosure and Barring Service (formerly the ISA) is obliged to include a person in the Adults \u2019 Barred List if satisfied, following consideration of representations, that he has engaged in conduct which fell within paragraph 11(4) and that it is appropriate to include him in the list. Paragraph 11(4) provides as follows:","\u201cA person falls within this sub-paragraph if he may\u2014","(a) harm a vulnerable adult,","(b) cause a vulnerable adult to be harmed,","(c) put a vulnerable adult at risk of harm,","(d) attempt to harm a vulnerable adult, or","(e) incite another to harm a vulnerable adult.\u201d","35. Section 4(1) of the 2006 Act provides for a right of appeal to the Upper Tribunal against a decision to include a person in the barred lists. For the purposes of determining appeals, the Upper Tribunal sits with a constitution of one legally-qualified judge and two specialist, non-legal members.","36. Section 4(2) of the Act stipulates that an appeal can only be made on the grounds that the ISA has made a mistake on a point of law or in a finding of fact on which the decision was based. In section 4(3), the decision whether it was appropriate for a person to be included in a barred list is stated to be neither a question of law nor of fact.","37. Paragraphs 18 and 18A of Schedule 3 to the Act allowed a person included in a barred list to apply to the Disclosure and Barring Service (formerly the ISA) for a review of his inclusion. At the time the applicant was placed on the Adults \u2019 Barred List, a review could only proceed after the end of the \u201cminimum barring period\u201d, which in the applicant \u2019 s case was a ten-year period, and with the permission of the Disclosure and Barring Service.","38. However, following amendments introduced by the Protection of Freedoms Act 2012, a review may now take place at any time and a person \u2019 s name is to be removed from the list if the Disclosure and Barring Service is satisfied that, in the light of information which it did not have at the time of inclusion in the list, any change of circumstances or any error by ISA, it is not appropriate for the person to be included in the list.","(b) Challenges to inclusion in the Barred Lists","39. In R (Royal College of Nursing) v. Secretary of State for the Home Department [2010] EWHC 2761 (Admin), the claimants argued that the scheme established by the 2006 Act did not permit an oral hearing and thus did not comply with Article 6 of the Convention; and did not give individuals placed on a barred list the opportunity for a full merits review on appeal, contrary to Article 6. Mr Justice Wyn Williams, sitting in the High Court, said:","\u201c103. In light of the fact that the Upper Tribunal can put right any errors of law and any material errors of fact and, further, can do so at an oral hearing if that is necessary for the fair and just disposition of the appeal I have reached the conclusion that the absence of a right to an oral hearing before the [ISA] and the absence of a full merits based appeal to the Upper Tribunal does not infringe Article 6 EHCR. To repeat, an oral hearing before the [ISA] is permissible under the statutory scheme and there is no reason to suppose that in an appropriate case the [ISA] would not hold such a hearing ... Indeed, a failure or refusal to conduct an oral hearing in circumstances which would allow of an argument that the failure or refusal was unreasonable or irrational would itself raise the prospect of an appeal to the Upper Tribunal on a point of law. Further, any other error of law and relevant errors of fact made by the [ISA] can be put right on an appeal which, itself, may be conducted by way of oral hearing in an appropriate case.","104. I am more troubled by the absence of a full merits based appeal but I am persuaded that its absence does not render the scheme as a whole in breach of Article 6 for the following reasons. First, the [ISA] is a body which is independent of the executive agencies which will have referred individuals for inclusion\/possible inclusion upon the barred lists. It is an expert body consisting of a board of individuals appointed under regulations governing public appointments and a team of highly-trained case workers. Paragraph 1(2)(b) of Schedule 1 to the 2006 Act specifies that the chairman and members \u2018 must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults \u2019. The [ISA] is in the best position to make a reasoned judgment as to when it is appropriate to include an individual \u2019 s name on a barred list or remove an individual from the barred list. In the absence of an error of law or fact it is difficult to envisage a situation in which an appeal against the judgment of the [ISA] would have any realistic prospect of success. Second, if the [ISA] reached a decision that it was appropriate for an individual to be included in a barred list or appropriate to refuse to remove an individual from a barred list yet that conclusion was unreasonable or irrational that would constitute an error of law. I do not read section 4(3) of the Act as precluding a challenge to the ultimate decision on grounds that a decision to include an individual upon a barred list or to refuse to remove him from a list was unreasonable or irrational or ... disproportionate. In my judgment all that section 4(3) precludes is an appeal against the ultimate decision when that decision is not flawed by any error of law or fact.\u201d","40. The Upper Tribunal considered the R (Royal College of Nursing) judgment in SB v. ISA [2011] UKUT 404 (AAC). It referred to counsel \u2019 s submission that the weight the ISA attached to a particular feature was not a matter which the tribunal could redetermine but rather went to \u201cappropriateness\u201d, expressly excluded by section 4(3) of the 2006 Act, and said:","\u201c40. We are not able to agree with this submission. We are mindful that we must read section 4(3) in a way that is compatible with the Human Rights Act 1998, and the approach adopted by Wyn Williams J, in our view, is the correct way to proceed. If a decision taken by ISA to place a person on a list, or not to remove him from the list, is disproportionate to the facts as presented to the [ISA], then there is an error of law, and the Tribunal on appeal is entitled, indeed obliged, to direct ISA to remove the person from the list, or remit the matter to ISA for a new decision.","41. The only way in which a Tribunal can form a view as to whether a decision of the [ISA] is disproportionate is to engage in \u2018 a weighing of evidence exercise \u2019, not so as to ascertain whether the decision is or is not appropriate (that is a matter solely for the [ISA]) but so as to ascertain whether it is disproportionate and therefore out with the lawful decision making exercise of the [ISA]. It is therefore the totality of the evidence that the Tribunal must concern itself with. In considering the totality of the evidence, it is in our view necessary to look carefully at individual aspects to that evidence and to form a view whether the conclusion that the [ISA] has placed on the totality of the evidence is disproportionate.","...","45. ... On an appeal, the Tribunal is entitled to examine the evidence and to allocate weight to it and to decide whether the balance has been struck in the right place.\u201d","41. The Upper Tribunal \u2019 s judgment in SB was subsequently overturned on appeal. Delivering the lead judgment for the Court of Appeal on 18 July 2012 ([2012] EWCA Civ 977), Lord Justice Maurice Kay explained:","\u201c21. ... The [ISA] assessment was a fair representation of the many indications and counter indications and specific mention was made of the numerous references and the fact that SB had voluntarily sought counselling.","22. This brings me to two particular points. First, there is the fact that, unlike the ISA, the [Upper Tribunal] saw and heard SB giving evidence. However, it cannot be suggested that it was unlawful for the ISA not to do so. It had had at its disposal a wealth of material, not least the material upon which the criminal conviction had been founded and which had informed the sentencing process. The objective facts were not in dispute. Secondly, Mr Ian Wise QC, on behalf of the Royal College of Nursing, emphasises the fact that the [Upper Tribunal] is not a non-specialist court reviewing the decision of a specialist decision-maker, which would necessitate the according of considerable weight to the original decision. It is itself a specialist tribunal. Whilst there is truth in this submission, it has its limitations for the following reasons: (1) unlike its predecessor, the Care Standards Tribunal, it is statutorily disabled from revisiting the appropriateness of an individual being included in a Barred List, simpliciter; and (2) whereas the [Upper Tribunal] judge is flanked by non-legal members who themselves come from a variety of relevant professions, they are or may be less specialised than the ISA decision-makers who, by paragraph 1(2) of schedule 1 to the 2006 Act \u2018 must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults \u2019. I intend no disrespect to the judicial or non-legal members of the [Upper Tribunal] in the present or any other case when I say that, by necessary statutory qualification, the ISA is particularly equipped to make safeguarding decisions of this kind, whereas the [Upper Tribunal] is designed not to consider the appropriateness of listing but more to adjudicate upon mistakes on points of law or findings of fact (section 4(3)).","23. For all these reasons I consider that the complaint that the [Upper Tribunal] did not accord \u2018 appropriate weight \u2019 to the decision of the ISA is justified.\u201d"],"61":["1. The applicant, Ms Amanda K\u00f3sa, is a Hungarian national who was born in 2004 and lives in Ny\u00edregyh\u00e1za. She was represented before the Court by Ms A. Kegye, a lawyer practising in Budapest.","2. The Hungarian Government (\u201cthe Government\u201d) were represented by Mr Z. Tall\u00f3di, Agent, Ministry of Justice.","I. THE CIRCUMSTANCES OF THE CASE","A. The applicant \u2019 s individual situation","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. The applicant was born in 2004 and lives in a neighbourhood of Ny\u00edregyh\u00e1za, the so-called Husz\u00e1r township, which is characterised by the unfavourable social circumstances and poverty of its inhabitants, the overwhelming majority of whom belong to the Roma minority. This township, situated approximately 2 km from the town centre, is rather isolated, the access roads and pedestrian walkways being intersected by the Ny\u00edregyh\u00e1za Railway Station complex and the railway tracks running to and from the station.","5. Ny\u00edregyh\u00e1za is the administrative centre of Szabolcs-Szatm\u00e1r-Bereg County, with a population of 118,000.","6. The applicant stated that her father and stepfather both belonged to the Roma minority, whereas her mother did not. The applicant considers herself to be of Roma origin, as indicated on the application form submitted to the Court.","7. In accordance with the relevant Hungarian legislation, each residential district has a designated State-funded primary school which is obliged to admit the children who reside in its catchment area (a school of compulsory admission). That admission obligation does not prejudice parents \u2019 right to a free choice of school; they are free to request that their children be admitted to another public or private school of their choice.","8. Between 1958 and 2007 the primary education of those living in the applicant \u2019 s township was provided by a school located in that neighbourhood. In 2007, relying on expert reports on the segregation of children with severe social handicaps, the Municipality of Ny\u00edregyh\u00e1za (hereafter \u201cthe Municipality\u201d) \u2013 against which related public interest litigation was being conducted, but was eventually discontinued \u2013 decided to close the school, distribute the pupils among six other primary schools, and provide a free and supervised school bus service between the Roma neighbourhood and those schools.","9. However, the desegregation process was classified by the domestic courts as \u201crigid\u201d: it lacked sufficient preparation, and the special educational needs of the children who were transferred were not adequately addressed. As a result, they often complained of exclusion and an unfriendly atmosphere in their new schools.","10. In April 2011 the applicant was admitted to the Arany J\u00e1nos Primary School, which was the designated school for her neighbourhood. This school was located in another part of town approximately 5 km away.","11. Upon medical advice, the applicant, who suffered from asthma, did not begin school in September 2011, but spent another year in kindergarten.","12. In May 2011 the Greek Catholic Diocese, which had jurisdiction in the local area and which had maintained a school in central Ny\u00edregyh\u00e1za since 1998, expressed its willingness to open another primary school in the Husz\u00e1r township, with a view to providing pastoral care to Roma pupils and their families. The Roma minority self-governing body of Ny\u00edregyh\u00e1za welcomed the initiative.","13. In September 2011 a primary school maintained by the Greek Catholic Church was opened in the township, the S\u00f3ja Mikl\u00f3s [1] Greek Catholic Kindergarten and Primary School (\u201cthe S\u00f3ja Mikl\u00f3s School\u201d). This school was not assigned to any residential district, and its establishment did not affect the existing scheme of catchment areas and schools of compulsory admission in Ny\u00edregyh\u00e1za. The school undertook not to refuse children with severe social handicaps who requested admission. It is located approximately 300 metres from the applicant \u2019 s home.","The school provides primary education in accordance with the official syllabus. Its funding is partly derived from the State budget, disbursed according to the number of pupils catered for.","14. In November 2011 the Municipality discontinued the school bus service between the Husz\u00e1r township and the schools in the town centre. At that time, seventy to eighty children used the service. Instead, the Municipality decided to provide subsidies by paying 30% of the price of public transport passes for pupils living in the township. The submissions of the applicant \u2019 s stepfather indicate that the subsidies also applied to people who accompanied children to school.","15. In January 2012 the applicant \u2019 s mother and stepfather requested that the applicant be admitted to the S\u00f3ja Mikl\u00f3s School. On the registration form they wrote that they had chosen the school because of its proximity, so as not to expose the applicant, who was asthmatic, to a lot of travelling. The registration form which they signed also contained a pre-printed statement by which parents who signed it requested their child \u2019 s Catholic education.","16. The applicant spent slightly more than two school years in the S\u00f3ja Mikl\u00f3s School, that is from September 2012 to December 2014. In October 2014 her mother and stepfather decided to transfer her to a school in the town centre, the Bem J\u00f3zsef Primary School. The Chance for Children Foundation ( Es\u00e9lyt a H\u00e1tr\u00e1nyos Helyzet\u0171 Gyerekeknek Alap\u00edtv\u00e1ny, hereafter \u201cthe CFCF\u201d) assisted them in that process. In December 2014 the applicant was admitted to the school assigned to her neighbourhood, and she has been attending that school ever since.","17. The applicant uses public transport for her daily commute to the new school, and she is accompanied by her stepfather. The distance between their home and the Bem J\u00f3zsef School appears to be approximately 3 km, and the journey requires a commute of some forty minutes.","18. In 2014 the monthly income per capita in the applicant \u2019 s family was 21,400 Hungarian forints (HUF \u2013 approximately 70 euros (EUR)). The subsidised price of the public transport pass was HUF 1,750 (EUR 6) per month for the applicant and HUF 7,500 (EUR 25) for her stepfather.","B. Public interest litigation concerning segregation in Ny\u00edregyh\u00e1za","19. On 3 January 2012 the CFCF lodged a public interest action (see paragraph 29 below) with the Ny\u00edregyh\u00e1za High Court, under Act no. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities (\u201cthe Equal Treatment Act\u201d). In essence, it invited the court to find that the opening of the S\u00f3ja Mikl\u00f3s School and the discontinuance of the school bus service had resulted in unlawful segregation on the basis of ethnic origin, and to prohibit the school from operating.","20. Initially, the CFCF lodged the action against the Municipality. Subsequently, it extended the claim to include the Greek Catholic Church and its two schools in Ny\u00edregyh\u00e1za.","After the establishment of the Klebelsberg Institution Management Centre ( Klebelsberg Int\u00e9zm\u00e9nyfenntart\u00f3 K\u00f6zpont, hereafter \u201cthe KLIK\u201d), a State authority responsible for managing public education and maintaining public schools as of 1 January 2013, the CFCF extended the claim to include that authority. The CFCF requested that the KLIK, as a successor to the municipalities in the field of public education, be ordered to reinstate the original desegregation programme in place prior to May 2011 and resume the school bus service.","21. On 28 February 2014 the Ny\u00edregyh\u00e1za High Court found in favour of the CFCF as regards the main issue of the public interest litigation: in essence, it held that the first four respondents (the Municipality, the Greek Catholic Church and its two schools) had created unlawful segregation by maintaining the S\u00f3ja Mikl\u00f3s School in the township and discontinuing the school bus service.","22. As regards the claim against the KLIK, the Ny\u00edregyh\u00e1za High Court explained that section 76(7) of Act no. CXC of 2011 on National Public Education (\u201cthe Public Education Act\u201d) was to be interpreted as obliging the KLIK to ensure students \u2019 transport to the school to which had been officially designated for them according to their address, even if the school was located within the municipality in which they resided. However, the Ny\u00edregyh\u00e1za High Court rejected the CFCF \u2019 s claim against the KLIK, considering that the manner in which the CFCF intended to have the desegregation programme restored was too general, and that such a compulsory reinstatement could infringe parents \u2019 right to a free choice of school.","The CFCF did not appeal against the dismissal of the claim concerning the KLIK; nor did the KLIK appeal against the judgment. Accordingly, that part of the judgment became final at first instance.","23. On 6 November 2014 the Debrecen Court of Appeal upheld the judgment.","24. On 22 April 2015 the K\u00faria (the Supreme Court) reversed the final judgment in review proceedings and dismissed the CFCF \u2019 s action in full (see paragraph 31 below ).","C. Infringement procedure and amendment of the relevant law","25. On 26 May 2016 the European Commission issued a letter of formal notice, requesting that Hungary ensure that Roma children enjoy access to quality education on the same terms as all other children, and urging the Government to bring national laws on equal treatment, education and the practical implementation of their educational policies into line with the Racial Equality Directive (Council Directive 2000\/43\/EC).","26. On 4 October 2016 the Government submitted a bill to Parliament, with a view to amending section 28 of the Equal Treatment Act (see paragraph 29 below) and inserting a new provision into the Public Education Act.","The amendment, adopted on 13 June 2017 and effective as of 1 July 2017, prohibited, in principle, education organised on the grounds of religious or other convictions from resulting in unlawful segregation based on race, colour or ethnicity. However, it is still possible to provide minority ethnic education if the following two conditions are satisfied: the national curriculum being taught at at least the level generally provided in non-ethnic schools, and the minority ethnic education meeting the criteria laid down in the Act on the Rights of Nationalities.","27. The infringement procedure opened by the European Commission is still ongoing.","II. RELEVANT DOMESTIC LAW","28. The relevant parts of the Public Education Act, as in force at the material time, provided:","Section 72","\u201c(2) Parents may freely choose ... a school ..., taking into account their child \u2019 s abilities, skills and interests, as well as their own religious and ideological convictions and nationality.\u201d","Section 76","\u201c(7) The municipality [in which the child resides] reimburses the costs of travelling to the kindergarten of compulsory admission, and provides the child with an accompanying person if necessary, provided that the kindergarten is located outside the municipality in question and transport to the kindergarten is not ensured by the municipality. Transport to a school of compulsory admission is ensured by [whoever maintains] the school.\u201d","29. The relevant parts of the Equal Treatment Act provide:","Section 1","\u201cOn the basis of the requirement of equal treatment, in the territory of Hungary, persons or groups of persons, legal persons, and organisations without legal personality must be treated with equal respect and circumspection, as required by the present Act, with equal due respect for their individual circumstances.\u201d","Section 20 Public interest litigation","\u201c(1) A personality right or labour law action may be initiated before a court on account of a violation of the equal treatment requirements by ...","c) civil society organisations and organisations set up to represent [certain specific] interests;","if the violation of the requirements of equal treatment, or the imminent risk of such a violation, was based on a characteristic which is an essential feature of the individuals, and the violation or its imminent risk affects a larger group of persons which cannot be determined accurately.\u201d","Section 28","\u201c(2) The requirement of equal treatment is not violated if","a) in a public educational institution, upon the initiative of parents and in accordance with their voluntary choice [or]","b) in a higher educational institution, upon the voluntary participation of students","an education based on a religious conviction or ethnic education is organised [in such a manner that its] purpose or curriculum necessitates the formation of segregated classes or groups; provided that the [students] do not suffer any prejudice as a consequence, and that the education complies with the requirements approved, prescribed or supported by the State.\u201d","30. Section 29 of the Constitutional Court Act (Act no. CLI of 2011) provides:","\u201cThe Constitutional Court shall admit constitutional complaints if a conflict with the Fundamental Law significantly affects a judicial decision, or the case raises constitutional law issues of fundamental importance.\u201d","31. The judgment of the K\u00faria, issued on 22 April 2015, was published as a guiding resolution ( elvi b\u00edr\u00f3s\u00e1gi hat\u00e1rozat, see Baka v. Hungary [GC], no. 20261\/12, \u00a7 50, ECHR 2016) under no. EH 2015.07.P6, with the following summary:","\u201cUnlawful separation (segregation) cannot be established on account of the maintenance or operation of a [faith school] in which the overwhelming majority of students are of [Roma] origin, provided that the choice of the school is based on parents \u2019 voluntary and informed decisions, and that the students are not prejudiced as regards the quality of the education given to them.\u201d","32. The established case-law of the K\u00faria concerning the scope of a final judgment \u2019 s res judicata was summarised in leading case no. BH2002.235 as follows:","\u201cThe subject of the res judicata comprises both the decision about the right sought to be enforced and the relevant facts and legal arguments underlying that decision; it thus covers the classification of the legal relationship between the parties, which cannot be called into question subsequently \u2013 not even a court hearing a subsequent action may depart from it.\u201d","33. With respect to the effects of a judgment adopted in public interest litigation, the K\u00faria also held the following in its judgment no. Pfv.IV.20.510\/2010\/3:","\u201cThe finding of a violation of a personality right ( szem\u00e9lyhez f\u0171z\u0151d\u0151 jog ), without an actual and evidenced disadvantage, does not in itself constitute grounds for an award of damages. ... [However, the notion of] \u2018 disadvantageous treatment \u2019 [or, in other words, the violation of the right to equal treatment, which constitutes a violation of a personality right] includes the notion of \u2018 disadvantage \u2019 as an inherent element ... Therefore, after [such an] infringement has been found, it is not necessary to consider further evidence of [the disadvantage]. If ... the final judgment adopted in the preliminary [public interest litigation] ... has established an infringement consisting of ... disadvantageous treatment, ... [this] allows for a \u2018 disadvantage \u2019 to be found without any further consideration of evidence, and a resulting award of non-pecuniary damages.\u201d","34. In its decision no. 3148\/2016. (VII. 22.) AB of 5 July 2016, the Constitutional Court rejected a constitutional complaint directed against a final judgment concerning the allegedly segregated education in a primary school.","As regards the facts of that case, the petitioner \u2019 s child had been enrolled at the school of compulsory admission assigned to their area of residence. Considering that school to be a segregated one, the petitioner had requested the transfer of the child to another primary school. The request had been dismissed and, in the ensuing judicial proceedings, the administrative decision had been found to be lawful.","The Constitutional Court found that the constitutional complaint essentially challenged the domestic courts \u2019 assessment of evidence, and did not contain any meaningful argument raising constitutionality issues of fundamental importance. It declared the complaint inadmissible with reference to section 29 of the Constitutional Court Act (see paragraph 30 above).","35. In accordance with the case-law of the Constitutional Court, associations, trade unions and other civil society organisations may only bring a constitutional complaint concerning their own rights and freedoms, but cannot act on behalf of the people whose interests they represent. Such complaints are rejected by the Constitutional Court for want of victim status (see, for example, decisions 3091\/2012. (VII. 26.) AB, point 3; 3092\/2012. (VII. 26.) AB, point 3; 3238\/2012. (IX. 28.) AB, point 3; 3027\/2013. (II. 12.) AB, point 19; 3030\/2013. (II. 12.) AB, point 10; and 3033\/2014. (III. 3.) AB, point 20)."],"62":["5.The applicant is a non-governmental organisation which promotes tolerance and condemns all types of racially motivated discrimination. It was established under Swiss law and registered in Z\u00fcrich.","6.On 5 November 2009 the youth wing of the Swiss People\u2019s Party (Junge Schweizerische Volkspartei) held a demonstration in the train station square in the town of Frauenfeld concerning a public initiative to support the prohibition of the building of minarets in Switzerland. After the event the party published a report on its website, including the following excerpts:","\u201cIn his speech in front of the Thurgau government building [Thurgauer Regierungsgeb\u00e4ude], B.K., the president of the local branch of the Young Swiss People\u2019s Party [\u201cthe JSVP\u201d], emphasised that it was time to stop the expansion of Islam. With this demonstration, the Young Swiss People\u2019s Party wanted to take an extraordinary measure in an extraordinary time. The Swiss guiding culture (\u201cschweizerische Leitkultur\u201d), based on Christianity, cannot allow itself to be replaced by other cultures, B.K. added. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one\u2019s own identity.\u201d","7.In response, the applicant posted an entry on its website in the section called \u201cChronology \u2013 Verbal racism\u201d, entitled \u201cFrauenfeld TG, 5November2009\u201d, including the following extract:","\u201cAccording to the report of the event, B.K., the president of the local branch of the Young Swiss People\u2019s Party, emphasised that it was time to stop the expansion of Islam. He added further: \u2018The Swiss guiding culture, based on Christianity, cannot allow itself to be replaced by other cultures. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one\u2019s own identity.\u2019 Swiss People\u2019s Party of Switzerland canton representative H.L. also spoke to the few people who attended; nevertheless, the Young Swiss People\u2019s Party speaks of a great success. (Verbal racism)\u201d","8.On 29 November 2009 the popular initiative against the construction of minarets was accepted in a referendum and a constitutional amendment banning the construction of new minarets was introduced.","9.On 21 August 2010 B.K. filed a claim for the protection of his personality rights with the Kreuzlingen District Court (Bezirksgericht Kreuzlingen). He applied, firstly, to have the applicant organisation withdraw the entry in question from its homepage and, secondly, for it to be replaced with the court\u2019s judgment. The applicant organisation replied that the title of the Internet entry had to be considered as a value judgment, which could only lead to an infringement of personality rights if it entailed an unnecessarily hurtful and insulting attack on the person concerned.","10.On 15 March 2011 the Kreuzlingen District Court dismissed B.K.\u2019s action. It held that the publication of the impugned article on the applicant\u2019s website had been justified since it had related to a political discussion on a matter of public interest.","11.On appeal, on 17 November 2011 the Thurgau Cantonal High Court (Obergericht des Kantons Thurgau) reversed the first-instance judgment. It held that classifying B.K.\u2019s speech as \u201cverbally racist\u201d had been a mixed value judgment, which could lead to an infringement of personality rights if it was based on untruths. The High Court concluded that B.K.\u2019s speech itself had not been racist. It therefore ordered that the impugned article be removed from the applicant\u2019s website and replaced with the court\u2019s judgment.","12.On 25 January 2012 the applicant organisation filed an appeal with the Federal Supreme Court (Bundesgericht), reiterating its argument that any interference with B.K.\u2019s personality rights had been justified. One of the applicant\u2019s main aims was to fight racism and to inform the public about hidden and open racist behaviour. Its website stated that public comments would be documented, even if they did not fall within the scope of the prohibition of racial discrimination enshrined in Article 261bis of the Swiss Criminal Code. To fulfil its role of watchdog in that sense, it published articles and interviews concerning current events relating to racism and anti\u2011Semitism.","13.On 29 August 2012 the Federal Supreme Court dismissed the applicant organisation\u2019s appeal, finding as follows (unofficial translation):","\u201c3. The classification of and commenting on a person\u2019s statements as \u2018verbal racism\u2019 violate that person\u2019s honour. Not only in the context of the criminal offence of racial discrimination (Article 261bis of the Criminal Code) but more generally, the term in question is, in the eyes of the average reader, capable of deliberately debasing the person whose comments have been classified as \u2018verbally racist\u2019, accusing him or her of behaviour which is frowned upon by society in the form of an act which is, at the very least, questionable in constitutional terms (cf. BGE 127 III 481 E. 2b \/ aa p.487, 129 III 49 E. 2.2 p. 51 and 715 E. 4.1 p. 722). The appellant referred to the respondent\u2019s speech at the public demonstration of 5 November 2009 on its website ... freely accessible on the Internet, commenting on the term \u2018verbal racism\u2019. It thereby violated the respondent\u2019s honour as part of his personality within the meaning of Article 28 \u00a7 1 of the Civil Code. The infringement is unlawful if it is not justified by the consent of the injured party, by an overriding private or public interest or by law (Article 28 \u00a7 2 ZGB).","4. The main point in dispute is whether the appellant can rely on an overriding interest in classifying the respondent\u2019s comments as \u2018verbal racism\u2019.","4.1. The case-law on press statements, on which the appellant relies, distinguishes between statements of facts on the one hand and value judgments on the other, and can be summarised as follows: ...","4.2. The appellant assigned the respondent\u2019s statements to the section entitled \u2018verbal racism\u2019 ... That was a mixed value judgment. It contains a substantive core and, at the same time, a value judgment. In order to justify the substantive core, it is necessary to examine whether the respondent\u2019s comments were indeed racist.","4.3. The term \u2018racism\u2019 is understood as \u2018a doctrine\u2019 which states that \u2018certain races or nations are superior to others in terms of their cultural capacity\u2019, and, on the other hand, a \u2018certain attitude, manner of thinking and acting towards people of (certain) other races or nations\u2019 (cf. Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 5, 1980, p. 2099). The adjective \u2018verbal\u2019 describes racism as \u2018[occurring] with words, with the help of language\u2019 (cf. Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 6, 1981, p. 2730). Verbal racism is, therefore, no longer merely a certain attitude, but an attitude in the instant case which was expressed publicly through language (as opposed to, for example, through deeds). \u2018Verbal racism\u2019 could therefore mean racial discrimination in the criminal sense, as the respondent claims. What is decisive, however, as the second-instance court correctly stated, is that the mere demonstration of a difference between two individuals or groups does not constitute racism. Racism begins where the difference amounts simultaneously to denigration of the victims and where the highlighting of differences is ultimately only a means to represent the victims negatively and to show disregard for their dignity.","4.4. The statements that led the appellant to conclude that there had been \u2018verbal racism\u2019 are the core phrases \u2018it is time to stop the spread of Islam ... The Swiss guiding culture (\u201cschweizerische Leitkultur\u201d), based on Christianity, cannot let itself be repressed by other cultures ... A symbolic sign, such as the prohibition of minarets, is therefore an expression of the preservation of one\u2019s own identity\u2019.","4.4.1. In his public speech, the respondent expressed his opinion on the prohibition of minarets, which, in the opinion of the High Court, would not be compatible with freedom of religion and non-discrimination. He has, in that connection, compared his own beliefs (\u2018Christianity\u2019) with foreign beliefs (\u2018Islam\u2019), delimited them (\u2018to halt\u2019, \u2018preserving one\u2019s own identity\u2019) and described his own as worthy of protection and defence (\u2018Swiss leading culture\u2019, \u2018not to be repressed\u2019). For the average listener, that does not result in the blanket denigration of the followers of Islam or show fundamental contempt for Muslims.","4.4.2. On the whole, it cannot be said that the comments made by the respondent, as understood by the average listener, could be described as \u2018verbally racist\u2019. Therefore, the substantive core does not apply and the assessment is not acceptable. It shows the respondent in the wrong light. Therefore, the mixed value judgment, which infringed personality rights, cannot be justified by any overriding interest within the meaning of Article 28 \u00a7 2 of the Civil Code.","4.4.3. That assessment cannot be altered by the fact that in the general interest of informing the public, there is an increased degree of publicity and a reduced level of protection for personality rights for people who engage in a political debate, such as the respondent in the campaign for the minaret initiative (see BGE 105 II 161 E. 3b p.165, 107 II 1 E. 3b p. 5). That special framework allows for the assessment of breaches of honour on a somewhat different scale, but it can neither justify the dissemination of untruths nor the publication of value judgments that do not appear to be justified with regard to the underlying facts.\u201d"],"63":["The applicants, Ms Ljubica Vili\u0107 and Mr Dragan Vili\u0107, are Croatian nationals, who were born in 1955 and 1949 respectively and live in Zemun. They were represented before the Court by Mr L. Sikirica, a lawyer practising in Zagreb.","The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.","I. The circumstances of the case","1. The facts of the case, as submitted by the parties, may be summarised as follows.","2. The applicants own a house in Glina. During the armed conflict the applicants fled Croatia.","3. On 19 September 1995 the Glina Municipality Housing Commission ( Stambena Komisija Glina ) authorised a certain M.I. to temporarily use the applicants \u2019 house. On the same date M.I. moved into the house.","4. On 27 September 1995 the Temporary Takeover and Administration of Certain Property Act (\u201cthe Takeover Act\u201d) entered into force. It provided that property belonging to persons who had left Croatia after 17 October 1990 was to be sequestered, that is, taken into the care of and controlled by the State. It also authorised local housing commissions to temporarily accommodate other persons in such property.","5. In 1997 the second applicant requested re \u2011 possession of his house from the Glina Municipality Housing Commission, which on 7 April 2000 annulled its decision of 19 September 1995 and ordered M.I. to vacate the premises within 5 days of receiving notification from the Housing Commission concerning alternative accommodation for him and his family.","6. On 7 November 2000 the applicants moved back into their house.","7. On an unknown date the applicants brought a civil action in the Glina Municipal Court ( Op\u0107inski sud u Glini ) seeking 152,000 Croatian kunas (HRK) in compensation for the non-availability of their house between 1 October 1995 and 1 November 2000. On 18 June 2004 the Glina Muncipal Court dismissed the applicants \u2019 claim as unfounded and this judgment was upheld by the Sisak County Court ( \u017dupanijski sud u Sisku ) on 1 September 2005 and by the Supreme Court on 29 June 2006.","8. The applicants then lodged a constitutional complaint. On 16 September 2009 the Constitutional Court quashed all three judgments and ordered a fresh examination of the case.","9. In the re-trial the first-instance and second-instance courts again ruled against the applicants, on 26 March 2010 and 27 September 2010 respectively. They held that the applicants had not presented any relevant evidence in support of their claim on the basis of which the amount of compensation could be assessed, in particular there was no evidence indicating the value of their property and the amount of damage they had sustained. In these circumstances the national courts also found that the applicants had not proven that the restriction on the use of their house had imposed an excessive burden on them.","10. A subsequent appeal on points of law lodged by the applicants was declared inadmissible ratione valoris by the Supreme Court on 9 March 2011.","11. The applicants then lodged a fresh constitutional complaint on 25 July 2011, arguing that the decisions of the lower courts denying them the right to compensation for the use of their house by third parties had been unfounded. On 16 February 2012 the Constitutional Court declared the applicants \u2019 constitutional complaint inadmissible as manifestly ill-founded.","II. Relevant domestic law and practice","A. The Constitution","Relevant provisions","12. The relevant part of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 85\/2010 (consolidated text)) reads as follows:","Article 29","\u201cIn the determination of their rights and obligations or of any criminal charge against them, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.","...\u201d","Article 140","\u201cInternational agreements concluded and ratified in accordance with the Constitution and made public, and which are in force, are a part of the internal legal system of the Republic of Croatia and rank, in terms of their legal effects, above statutes. ...\u201d","B. The Constitutional Court \u2019 s jurisprudence","13. In its decisions nos. U-I-892\/1994 of 14 November 1994 (Official Gazette no. 83\/1994) and U-I-130\/1995 of 20 February 1995 (Official Gazette no. 112\/1995) the Constitutional Court held that all rights guaranteed in the Convention and its Protocols were also to be considered constitutional rights having legal force on a par with the provisions of the Constitution.","C. The Courts Act","14. The relevant part of the Courts Act ( Zakon o sudovima, Official Gazette no. 150\/2005) provides as follows:","Section 5","\u201c1. The courts shall adjudicate cases on the basis of the Constitution and statutes.","2. The courts shall adjudicate cases also on the basis of the international agreements which are the part of the [internal] legal order of the Republic of Croatia ...\u201d","D. The Civil Procedure Act","15. The relevant part of the Civil Procedure Act ( Zakon o parni\u010dnom postupku, Official Gazette nos. 53\/1991, 91\/1992, 112\/1999, 81\/2001, 117\/2003, 88\/2005, 84\/2008, 96\/2008, 23\/2008, 57\/2011, 148\/2011 \u2011 consolidated text), as in force at the material time, provided as follows:","Section 219","\u201cEach party is obliged to provide facts and present evidence on which his or her claim is based or to refute the statements and evidence of his or her opponent.","...\u201d","E. The Supreme Court \u2019 s jurisprudence","16. In its decisions nos. Rev 742\/05-2 of 12 February 2009; Rev 588\/08 \u2011 2 of 12 February 2009; Rev 234\/08-2 of 25 March 2009; Rev 1038\/08-2 of 21 January 2010; Rev1170\/10-2 of 9 March 2011; and Rev 1512\/09-2 of 31 August 2011 the Supreme Court held that persons whose property had been used by the housing commissions for temporary accommodation of other persons had the right to compensation."],"64":["5.The applicant was born in 1988 and lives in Diyarbak\u0131r.","6.In 2005, while he was a first-year mechanics student in the technical faculty of F\u0131rat University (\u201cthe faculty\u201d), the applicant was seriously injured in an accident which left his lower limbs paralysed. He had to suspend his studies until he had recovered sufficiently to return to university.","1.On 17 March 2007 the applicant requested the faculty to adapt the university premises in order to enable him to resume his studies for the 2007\u20112008 academic year.","2.The faculty replied to that request by letter of 25 May 2007. It pointed out that the faculty building had been designed and built with several floors in order to accommodate 3,000 students and that its architecture could not be adapted. It stated that the administration had been asked for leave to conduct redevelopment work on the doors to the building, but that that work could not be carried out in the short term. It added that the mechanics course required the applicant to participate in practical workshops, considering that as things stood such participation would cause problems. The faculty concluded that if the applicant wished to continue his studies it would help him as far as possible.","3.On 16 August 2007 the applicant sent, through a notary, formal notice to the administration of F\u0131rat University and the faculty dean inviting them to carry out the redevelopment work requested. Relying on Article 42 of the Constitution, section 15 of Law no. 5378 on persons with disabilities and Article 2 of Protocol No. 1 to the Convention, he affirmed that it was the State\u2019s duty to guarantee the citizens\u2019 right to education, in line with the principle of equal opportunities. He further alleged that the faculty\u2019s reply to his request (see paragraph 8 above) had been intended solely to induce him to abandon his studies.","4.The administration replied to that formal notice by letter of 10September 2007. The latter stated that the redevelopment works mentioned should be considered in the light of compliance with the regulations on public property, which could take some time. Furthermore, any problems encountered by the applicant in attending the theoretical classes administered in a three-storey building could be resolved with the help of a companion.","The Administration pointed out that the practical workshops were held on the ground floor of the building and posed no problems with regard to access, and that the applicant would consequently have no difficulty in attending the courses administered in the framework of those workshops. It explained that the only reason why the applicant\u2019s participation in the practical workshops had previously been described as problematic (see paragraph 8 above) was that such workshops necessitated a considerable physical effort and that his particular situation required some thought regarding the type of assistance with which he could be provided. Furthermore, all the parties involved were anxious to help students in difficulty, and there was no question of deterring the applicant from continuing his studies. Finally, the Administration pointed out that since, in its view, the budget allocated by the State was limited, the redevelopment work necessitated by the applicant\u2019s situation was subject to unavoidable budgetary and time constraints.","5.On 15 November 2007 the applicant filed with the Elaz\u0131\u011f Administrative Court an action for annulment of the university\u2019s replies of 25 May and 10 September 2007 and to provide compensation for the pecuniary and non-pecuniary damage which he claimed he had sustained. He complained that the authorities had not removed the physical obstacles preventing him from exercising his right to education. He claimed 25,000Turkish liras (TRY) in respect of non-pecuniary damage and TRY 30,000 in respect of pecuniary damage.","6.The Administration of F\u0131rat University replied in a defence memorial of 24 March 2008. That document stated that the university had not been responsible for the applicant\u2019s accident. It criticised the applicant for having opted for judicial channels, and alleged that he was acting in bad faith, adding, in that connection, that he had been informed that he would be provided with support should he decide to return to university. Furthermore, the relevant agencies had been contacted with a view to redeveloping the faculty building and a proposal had been made to include the works in an investment programme complying with the relevant regulations governing public property. The Administration further argued that it had offered the applicant the services of an assistant, but that he had not submitted any request for such help. The office added that access to the workshops posed no problems for persons with disabilities, but that the courses administered at the workshops demanded a physical effort from participants. Lastly, it pointed out that the applicant had never been barred from any course.","7.The applicant replied, refuting the arguments put forward by the Administration. He submitted that his right to education was guaranteed by domestic law and by Article 2 of Protocol No. 1 to the Convention, and that it was incumbent on the domestic authorities to take steps to enable him to exercise that right, with respect for the principle of equal opportunities. Moreover, he argued that the redevelopment work requested was such as should already have been conducted in any case, in line with the requirements of section 1bis of Law no. 3194 on urban planning (see paragraph23 above). Furthermore, he considered that the authorities\u2019 offer of an assistant illustrated their ignorance of his personal situation and the implications of that situation. He added that it would be degrading for him to be placed in a situation of dependence on a third person because of his disability, citing the example of how the constant presence and assistance of a third person would invade his privacy. He also pointed out that the fact of being carried upstairs by another individual comprised a definite risk of his falling.","8.On 13 October 2008 the faculty terminated its contracts with a number of students, including the applicant, on the grounds that they had not re-registered at the start of two successive academic years.","9.2 November 2009 saw the enactment of Legislative Decree no. 2009\/15546, published in the Official Gazette (\u201cthe OG\u201d) on 13 November 2009, closing down certain categories of institutions of higher education, including technical faculties, one of which was the technical faculty of F\u0131rat University, which was replaced by a new faculty of technology. Under the legislative decree students who were already registered could continue their studies in the new faculties.","10.On 9 April 2010 the Elaz\u0131\u011f Administrative Court dismissed the applicant\u2019s appeal. In the reasoning of its judgment it stated, in particular, that the buildings in question had been erected in accordance with the regulations in force in 1988. The court took the view that although it was incumbent on the authorities to apply the technical guidelines set out in the legislation subsequently enacted for persons with disabilities, it could not be contended that the respondent authority had not followed those guidelines during the construction of a building erected in 1988, before the guidelines had come into force. Lastly, the judgment mentioned that the authorities had informed the complainant that architectural measures would be adopted, depending on the available budget, and that a person would be appointed to assist him in attending the courses.","11.The applicant lodged an appeal on points of law with the Supreme Administrative Court against that judgment.","12.On 18 January 2011 the Supreme Administrative Court delivered a judgment dismissing that appeal on points of law and upholding the first-instance judgment as being in conformity with the procedure and laws.","13.The applicant lodged an application for rectification of that judgment with the Supreme Administrative Court, complaining of an infringement of his right to education and the equality principle.","14.On 28 September 2011 the Supreme Administrative Court dismissed the applicant\u2019s application, holding that there were no grounds for rectification."],"65":["5.The applicant was born in 1984 and lives in Gebze.","6.On 17 August 2002 a certain H.A. was found dead in a junkyard. The police initiated an investigation into the matter to find the perpetrators.","7. On 20 August 2002 the applicant, a minor at the time, was brought to the police headquarters, where he was searched. Following the search, he went through a medical examination. The report drawn up after that examination noted that he did not have any complaints and that there were no signs of injury on his body.","8.On 21 August 2002 at 1.30 p.m. another report was issued in respect of the applicant, indicating that there were no traces of ill-treatment on him. He was released afterwards.","9.The same day the applicant\u2019s house was searched by the police, who seized certain objects. The search records prepared by the police noted that the applicant was suspected of having committed the crime.","10.At around 11 p.m. the applicant was brought to the police headquarters once again, together with some others.","11.On 22 August 2002 he gave his statements before the police in the absence of a lawyer and indicated that he had spent the day with his friends on 16 August 2002, the day H.A. had been killed. The medical report prepared following his examination reiterated the findings of the previous reports, noting no signs of injury on his body. Several members of the applicant\u2019s family were also questioned the same day. The applicant and the others were all released after their questioning.","12.On 26 August 2002 the applicant turned eighteen years of age.","13.On 20 September 2002 the applicant was questioned by the police once again. In the absence of a lawyer, he submitted that he had known H.A. as the grandmother of one of his friends and that when he had heard of the murder, he had speculated with his friends that she could have been killed for the jewellery she wore.","14.A police report prepared on 11 October 2002 established that according to the results of a DNA test, the blood stains on a tile-cutting machine found at the applicant\u2019s house matched the sample tissues taken from the deceased. Subsequently, the applicant, other members of his family and his friend A.S. were arrested. The search and arrest records held by the police noted that all of those arrested had been placed in police custody following their medical examinations. The medical report concerning the applicant noted no signs of injury.","15.On 12 October 2002 the police conducted a reconstruction of the events at the applicant\u2019s house, during which he confessed to having killed H.A. He maintained that he had hit her on the head with a wooden club in the basement of their house, with the intention of stealing her jewellery, and that he had put her in a nylon bag afterwards as he had panicked. He went on to describe in detail how he had disposed of the body and showed the police the pushcart he had used to that effect. According to the police records bearing the applicant\u2019s signature, the applicant did not benefit from the assistance of a lawyer during the reconstruction of events and was not informed of his rights to request legal assistance and to remain silent.","16.Subsequently, the applicant was taken back to police station, where he reiterated his confession in the absence of a lawyer. He also added certain details such as the locations of the jewellery stores in Istanbul and \u0130zmir where he had changed the deceased\u2019s jewellery, and how he had spent the money in \u0130zmir with his friend A.S., who had not known how he had obtained it. His statements were transcribed on a form, on the first page of which there was a pre-printed message stating, inter alia, that the person being questioned had been informed of his right to remain silent and to choose a lawyer, and that he refused legal assistance.","17.On 13 October 2002, at the end of the applicant\u2019s police custody, another medical report was drawn up, again indicating no signs of ill\u2011treatment on his body.","18.On 13 October 2002 the applicant was questioned by the Gebze Public Prosecutor. Pursuant to his request, he was assisted by a lawyer appointed by the Bar Association during the questioning. He reiterated his previous statements and maintained that he accepted those he had made before the police. He argued, however, that electric shocks had been administered to him through his penis and small toe during his time in police custody.","19.A medical examination conducted pursuant to the Public Prosecutor\u2019s request revealed no traces of injury on the applicant\u2019s penis, small toe or any other part of his body.","20.On the same day the applicant repeated his previous statements before the investigating judge and claimed once again that he had been subjected to electric shocks while in police custody. He was subsequently placed in detention on remand.","21.On 22 October 2002 the Public Prosecutor filed an indictment with the Gebze Assize Court, accusing the applicant of murder and robbery.","22.At the first hearing held on 19 November 2002, the applicant denied his previous statements and argued that he had had to confess to having committed the murder as a result of the ill-treatment inflicted on him. He requested that the appointed lawyer who had been present during his questioning by the Public Prosecutor and the investigating judge be heard as a witness. The court rejected that request.","23.In a petition dated 11 September 2003, the applicant argued that he had been coerced into making self-incriminating statements, in that he had been subjected to ill-treatment and psychological duress by the police, who had threatened him with bringing charges against his family members if he did not confess to having murdered H.A. He submitted that his waiver of his right to legal assistance had not been unequivocal, which had been proven by the fact that he had requested a lawyer before the Public Prosecutor, as soon as his police custody ended. He further contested the relevance of the DNA examination with regard to the tile-cutting machine, arguing that the court should conduct an examination of the wooden club indicated in his police statements, in order to prove that his confessions had not been genuine.","24.On 16 October 2003 the Gebze Assize Court held that it lacked jurisdiction and forwarded the case to the Kocaeli Juvenile Court as the applicant had been a minor at the time of the murder. During the course of the thirteen hearings before it, the Assize Court obtained a report from the Istanbul Forensics Institute and heard all the police officers involved in the applicant\u2019s questioning. It further examined two witnesses, namely, the owners of the jewellery stores described by the applicant, who stated that they had not seen him before.","25.During the course of the hearings before the Juvenile Court, the applicant requested the court to obtain a new forensics report, claiming that there were discrepancies between the police report and that prepared by the Istanbul Forensics Institute, as the latter noted that no blood sample could be found on either the tile-cutting machine or the wooden club. The court rejected that request. Nevertheless, it re-examined and accepted the applicant\u2019s request to have the appointed lawyer heard. In his statements before the court, that lawyer submitted that he had first seen the applicant during the interview at the Public Prosecutor\u2019s office and had suspected that he might have been ill-treated as he had been nervous. The court also heard a number of other witnesses, including his friend A.S., who indicated that the applicant had spent a considerable amount of money in \u0130zmir.","26.In his submissions before the Juvenile Court, the applicant maintained that he had not been assigned a lawyer while in police custody and claimed that he had been coerced into making a false confession although he had not committed the murder. He added that he had withdrawn the money he had spent after the events with his father\u2019s debit card. Following that latter submission, the court obtained the transcripts of the applicant\u2019s father\u2019s bank account, which showed no such transaction.","27.On 31 May 2004 the Juvenile Court found the applicant guilty as charged and sentenced him to twenty-six years and eight months\u2019 imprisonment. The court noted that it did not take account of the statements made by the applicant during his questioning by the police, as in any event it found him guilty on the basis of his subsequent statements confessing his acts, the records of the reconstruction of events, the forensics reports, the statements of A.S., and the bank transcripts which rebutted his defence with regard to the money he had spent after the murder.","28.The applicant appealed against the judgment, arguing that he might have made contradictory remarks as he had been confused with the questions of the judges. Reiterating his submissions with regard to his alleged ill-treatment, he maintained that he had not been assigned a lawyer while in police custody although he had requested one.","29.On 16 June 2005 the Court of Cassation quashed the judgment, finding that the applicant\u2019s sentence needed to be re-evaluated in the light of the new Penal Code, which had entered into force following the judgment.","30.On 27 July 2005 the Juvenile Court sentenced the applicant to a total of twenty-one years\u2019 imprisonment. On 12 October 2006 the Court of Cassation quashed the judgment once again, this time as a result of the Juvenile Court\u2019s failure to hold a hearing while re-evaluating the sentence.","31.On 15 February 2007, after holding a hearing and assessing the applicant\u2019s final submissions, the Juvenile Court sentenced him to twenty-one years\u2019 imprisonment for murder and robbery. That judgment was upheld by the Court of Cassation on 19 July 2007."],"66":["5.The applicant was born in 1995 and lives in Moscow.","6.The facts of the case, as submitted by the parties, may be summarised as follows.","7.On an unspecified date the applicant was diagnosed with schizotypal personality disorder and was undergoing voluntary treatment for his condition.","8.On 24 April 2014 he was apprehended by the police on the street in the Bibirevo district of Moscow. The police report stated that the applicant had been \u201charassing an underage teenager\u201d without providing a detailed account of the events. It is not clear from the material available to the Court whether the intervention by the police had been triggered by any complaint from that teenager or any other person.","9.He was then taken to the local police station and later transferred by the psychiatric ambulance service to the Central Clinical Psychiatric Hospital of the Moscow Region (\u0413\u041a\u0423\u0417 \u041c\u041e \u00ab\u0426\u0435\u043d\u0442\u0440\u0430\u043b\u044c\u043d\u0430\u044f \u043a\u043b\u0438\u043d\u0438\u0447\u0435\u0441\u043a\u0430\u044f \u043f\u0441\u0438\u0445\u0438\u0430\u0442\u0440\u0438\u0447\u0435\u0441\u043a\u0430\u044f \u0431\u043e\u043b\u044c\u043d\u0438\u0446\u0430\u00bb) (\u201cthe Hospital\u201d). The report of the ambulance service stated the following:","\u201c[T]aken to [a police station] for [on several occasions] sexually harassing ... [and] stalking an underage teenager and not allowing him to walk away [from such encounters] ...","Mentally alert. Aware of his surroundings. Unwilling to engage in contact. Reserved, secretive, tense, but during the conversation acknowledges the existence of the teenager and the repeated instances of sexual harassment ...\u201d","10.The psychiatrist who admitted the applicant to the Hospital made the following record:","\u201cTense, exhibits [exaggerated and pretentious facial] mannerisms. No eye contact. Selective in answering questions, answers [only] after some pause. Asks for some time to \u201cspend with boys\u201d. Distracted. Not reflective [about his mental state]. Diagnosis: schizotypal disorder.\u201d","11.On 25 April 2014 the applicant was examined jointly by the attending psychiatrist and the head of one of the Hospital\u2019s departments. They made the following record:","\u201cFollow-up patient history: According to the patient, about three years ago [in 2011] he started feeling the desire to be in contact with boys, to look like a girl. He dyed his hair to attract attention. He started watching television shows to observe how a woman moves; he uses make-up, dresses up. Since the beginning of last year he has become fixated on these thoughts, and started contemplating the possibility of gender reassignment. During this period he has had mood swings, has been anxious, irritable, [and had] difficulties in focusing his attention. Given these circumstances he was hospitalised in [a psychiatric facility]. After his discharge his condition improved. He continued his studies. In the past year he has started paying more attention to his appearance, using lipstick, wearing women\u2019s jewellery, [and has] sometimes tried on women\u2019s clothing at home. He became acquainted with a boy, a ninth grade student, during one of his walks in the city. He started meeting him, talking to him, tried to \u2018have physical contact\u2019, touched his hand, fondled it. Had a desire to be \u2018caressed\u2019.","According to the supporting documents \u2013 [a report to the head of the police station, the order for a psychiatric ambulance] \u2013 he was apprehended by police officers on the street, where he had been sexually harassing an underage teenager, having stalked him for four months, repeatedly not allowing him to walk away from such encounters. Transferred to [the police station] where he was examined by a psychiatrist on duty, subsequently involuntarily admitted [to the psychiatric hospital] ... During his examination in the reception ward he signed [a document consenting] to treatment...","Psychiatric state: Self-aware. Subdued mood. Somewhat distracted. Looks untidy, unkempt hair, dyed ginger. Soft, high-pitched voice. Indisposed to conversation, replies [only] after some pause, does not answer certain questions, asks for some questions to be repeated. While replying he gulps with an expression of pain. Excessive facial expressions during conversation. States that he feels uncontrollable attraction to boys, to be liked by them, to have contact with them. Requests a \u201cspace to meet with a boy\u201d. Blushes while saying this. Considers himself a \u201cfemale person\u201d. Considers in-patient treatment necessary for himself in order to improve his mood, reduce irritability and \u201cperplexity of thoughts\u201d. Denies hallucinations. Denies suicidal thoughts.","Diagnosis: Schizotypal disorder.\u201d","12.On the same day the applicant, after conferring with his father, demanded to be discharged from the Hospital; however, his request was denied.","13.On the same day a medical counselling panel composed of the resident psychiatrists of the Hospital examined the applicant and diagnosed him with organic delusional disorder. The panel also found that the applicant was a danger to himself and others and that there was a risk of significant damage to his health due to the deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance. The full text of the panel\u2019s report and conclusion read as follows:","\u201c25.04.2014 12.00 Panel examination due to refusal of treatment.","Lethargic, sluggish. Subdued mood. Attributes [the cause of] his subdued mood to [his] inability to meet up with a boy he is attracted to. Unsure whether that boy also is attracted to him. Goes across the city to see that \u2018boy\u2019. He wants to be \u2018treated gently, to be caressed, fondled\u2019. Admitted that he goes to women\u2019s clothing stores [because he likes the clothing], which is \u2018soft and bright\u2019. For a long time has been visiting the neighbourhood where he met the boy; previously he had been going to other neighbourhoods to watch boys.","Diagnosis: Organic delusional disorder.","Conclusion: needs involuntary placement and treatment, in accordance with section 29(a) and (c) of the 1992 Psychiatric Assistance Act.\u201d","14.On the same day the Hospital applied for judicial authorisation of the applicant\u2019s involuntary hospitalisation under section 29(a) and (c) of the Psychiatric Assistance Act 1992, since the applicant was a danger to himself or others and there was a risk of significant damage to his health owing to the deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance. The application restated the findings of the earlier joint examination (see paragraph 11 above) and set out the following conclusions:","\u201cOn 25 April 2014 was examined by the panel of resident psychiatrists of [the Hospital] and diagnosed with organic delusional disorder.","The patient needs to be involuntarily hospitalised and treated under section 29(a) and (c) of the Psychiatric Assistance Act of 1992.","The examination and treatment of the patient can take place only under an in-patient regime ...","[It is requested]","1.[That authorisation be granted for the applicant\u2019s involuntary placement in a psychiatric facility];","2.That the request for authorisation be assessed on the premises of the Hospital, since because of his mental state [the applicant] cannot be produced in court ...\u201d","15.On 5 May 2014 the Savyolovskiy District Court of Moscow (\u0421\u0430\u0432\u0451\u043b\u043e\u0432\u0441\u043a\u0438\u0439 \u0440\u0430\u0439\u043e\u043d\u043d\u044b\u0439 \u0441\u0443\u0434 \u0433. \u041c\u043e\u0441\u043a\u0432\u044b) held a hearing on the premises of the psychiatric facility. The hearing was attended by the applicant, his father and mother, the attending psychiatrist Mr P., the head of one of the Hospital\u2019s departments (Mr L.), the representative of the Hospital (Mrs K.) and the local prosecutor.","16.During the hearing Mr P., Mr L., and Mrs K. generally advanced the same arguments as those presented in the application for judicial authorisation (see paragraph 14 above), maintaining that the applicant needed to be hospitalised and treated, that he posed a danger to himself and others, and that there was a risk of significant damage to his health in the event of a deterioration in or aggravation of his psychiatric condition in the absence of psychiatric assistance. Mr P. also reported that the applicant considered himself to be healthy and refused treatment, while at the same time \u201cbeing confused, replying to questions with other questions, and being exceptionally insincere\u201d. They also emphasised the fact that the applicant had been apprehended by the police for sexually harassing an underage person.","17.The applicant\u2019s parents had conflicting opinions about the need for hospitalisation. The mother stated that the applicant did \u201cnot feel well\u201d and had been \u201cirritable lately\u201d, that her communication with him was restricted by the father and that she had not seen him since 10 February 2014. In her opinion, in-patient treatment was necessary. The applicant\u2019s father, acting as his representative, objected to involuntary hospitalisation and did not agree that his son posed any danger to himself or to others. He stated that Mr X was voluntarily following the treatment prescribed by a neurologist and a psychiatrist, that his condition showed signs of improvement and that hospitalisation would interfere with his studies and future career. In his opinion his son had only tried to become friends with \u201cthe boy\u201d, not sexually harass him. He furthermore stated that the police report referred to by the Hospital contained no information on the alleged sexual harassment or other unlawful acts.","18.The applicant stated the following during the hearing:","\u201cI refuse treatment and feel myself to be well ... There is nothing special about me. I dyed my hair ginger because that colour suits me, I do not like black. I only wanted to become friends with that boy, nothing special; I tried no clothes on; that is all nonsense. [I want to finish my studies]; I have only two months left and I do not want to be in hospital. I made no statements concerning trying on womens\u2019 clothing or changing gender.\u201d","19.The District Court, having considered the above-mentioned statements, medical evidence, a police report, and the applicant\u2019s educational records, the same day authorised the applicant\u2019s involuntary hospitalisation. The authorisation issued by the court in a succinct manner stated that, while the applicant and his father objected to hospitalisation, the evidence presented by the medical panel of the Hospital demonstrated that the applicant was a danger to himself and others and that his mental state might deteriorate in the absence of treatment.","20.The applicant\u2019s father appealed. The statement of appeal indicated that the District Court had relied exclusively on the evaluation of the resident psychiatrists, had not addressed inconsistencies in evidence, had failed to substantiate the assertion that the applicant\u2019s condition was severe and that he posed a danger to himself or others, and, lastly, had failed to demonstrate the absence of any alternative treatment options.","21.On 20 May 2014 the applicant was discharged from the Hospital after an improvement in his mental state.","22.Certificates issued by the local police station in May 2014 stated that the applicant had not committed any administrative or criminal offence and that he had been referred to psychiatrists because of mental disorders.","23.On 18 July 2014 the appeal was dismissed by the Moscow City Court (\u041c\u043e\u0441\u043a\u043e\u0432\u0441\u043a\u0438\u0439 \u0433\u043e\u0440\u043e\u0434\u0441\u043a\u043e\u0439 \u0441\u0443\u0434). The relevant parts of the decision read as follows:","\u201c... The case file shows that on 24 April 2014 [a policeman apprehended the applicant]. The police report indicates that [he] had been harassing underage persons...","Since the behaviour of [the applicant] exhibited symptoms of mental disorder, [he was taken to the Hospital], where he initially agreed to hospitalisation, stated that since 2013 [he had been subject to] mood changes, and that he [suffered from] anxiety, irritability and difficulties in focusing his attention. Previously he had been hospitalised in [a psychiatric facility]; following his discharge from [that facility] his mental state improved, [and] he had continued his studies. However during the last year the condition re-appeared.","[According to the medical evidence] on 25 April 2014 [the applicant] was lethargic, sluggish, and had a subdued mood, which he attributed to his inability to meet up with a boy he is attracted to.","During the hearing the representative of [the Hospital] stated that [the applicant] had been brought in in a delusional state, and had talked about \u2018a boy\u2019 who did not [in fact] exist. In this state he had been travelling long distances, presenting a danger to himself and others ...","The evidence [submitted to the first-instance court] substantiating the need for involuntary hospitalisation \u2013 including information on previous treatment for his delusional disorder and somatic condition (a second-degree disability) \u2013 constituted legal grounds for involuntary hospitalisation.","Since the reaching of conclusions regarding the mental health of a person is within the exclusive competence of psychiatrists, the [district] court reasonably gave due regard to the report on the need to provide in-patient treatment to [the applicant] ...","The appeal does not refer to any factual information demonstrating that the relatives of [the applicant] or other persons are capable of ensuring his and other persons\u2019 safety without an in-patient treatment regime ...\u201d","24.The applicant\u2019s subsequent attempts to initiate a review of the above-mentioned judicial decisions proved unsuccessful."],"67":["1. The applicant, Mr Torgeir Nordb\u00f8, is a Swedish national, who was born in 1960 and lives in Chonburi, Thailand. He was represented before the Court by Mr Nicholas Barnes, a lawyer based in Guernsey.","2. The United Kingdom Government (\u201cthe Government\u201d) were represented by their Agents, Mr Paul McKell and Mr Chanaka Wickremasinghe of the Foreign and Commonwealth Office.","3. The Swedish Government did not make use of their right to intervene in the proceedings (Article 36 \u00a7 1 of the Convention).","A. The circumstances of the case","The applicant \u2019 s case","4. In 2001 the applicant purchased a lease for land with a bungalow, on the isle of Sark in the Channel Islands. At the time of purchase the lease had 12 years remaining on it. The land and the bungalow were owned by third parties (the \u201cowners\u201d).","5. On 12 June 2013 the lease expired and the owners obtained permission to serve a notice to quit on the applicant out of the jurisdiction, as he was by then resident in Thailand. The applicant disputed the notice and declined to quit the premises.","6. The owners then brought eviction proceedings in the Court of the Seneschal, the local, first instance judge (the \u201ceviction proceedings). The applicant objected that the Court of the Seneschal was not \u201ca human rights compliant instrument\u201d and so was not compatible with Article 6 of the Convention. He also submitted that his eviction would be incompatible with his rights under Article 8 and Article 1 of Protocol No. 1 of the Convention.","7. At a hearing on 8 November 2013, the applicant suggested that the Seneschal should recuse himself and his case be postponed until the Supreme Court had given its judgment in an unrelated case concerning the independence of the Seneschal, Barclay (no. 2 ) (see paragraph 27 below).","8. On 15 November 2013 the Seneschal gave a decision in which he declined to recuse himself from the proceedings, observing that, if he did so, he would have to do the same in all court sittings, and the administration of justice on the island would come to a halt.","9. The applicant appealed the decision of the Seneschal not to recuse himself to the Royal Court of Guernsey, requesting that the Seneschal make a declaration of incompatibility stating that the 2008 and 2010 Sark Reform Laws (see paragraph 29, below) were not compliant with the Human Rights Act (the \u201chuman rights proceedings\u201d) (see paragraph 15 below).","10. In the meantime, the eviction proceedings continued and the applicant made four further requests to adjourn the proceedings in part due to his ill-health. The Seneschal granted the first three but as the applicant did not produce the medical certificate requested by the court and the property owners objected to further adjournments, the Seneschal refused the fourth request. The Seneschal stated his sympathy with the owners \u2019 position that the applicant \u2019 s continued calls for adjournments and his refusal without reason to accept e-mail communication despite using it himself in the court proceedings, constituted an abuse of process. He also underlined that the owners should be allowed to have their case heard within a reasonable timeframe.","11. In a judgment dated 16 May 2014 the Seneschal granted the owners \u2019 application for the applicant \u2019 s eviction. In doing so, he noted that the applicant had not produced any documents to support his claim that he had purchased the lease, nor submitted any reasons to support his argument that the lease had not ended. The Seneschal found that the lease in question ceased on 12 May 2013 and so use of the property reverted to the owners. As to the applicant \u2019 s complaint that this finding infringed his rights under Article 8 and Article 1 of Protocol No. 1 of the Convention, the Seneschal noted that these arguments were peripheral to the claim but that the owners also had rights under those articles therefore a balance must be struck, and the interference was lawful.","12. In respect of costs, the Seneschal found that there had been a measure of obstructionism on the part of the applicant and thus awarded the owners full indemnity costs of GBP 15,567, and GBP 1,000 in other costs.","13. The owners then sought the applicant \u2019 s eviction and removal of the applicant \u2019 s property from the land. An order for removal of the applicant \u2019 s property was made on 25 July 2014. The applicant did not challenge this order.","14. The applicant appealed the judgment of 16 May 2014 to the Royal Court of Guernsey. He also made an urgent application to halt the eviction, which was rejected on 13 August 2014. He then made repeated requests to adjourn the appeal proceedings for a variety of reasons.","15. On 5 September 2014, the Royal Court considered the applicant \u2019 s appeals in the eviction proceedings and the human rights proceedings. In light of the extended procedural history of the case the court concluded that further delays for procedural reasons were not in the interests of justice, and it was appropriate to refuse the request for an adjournment and hear the appeal in the applicant \u2019 s absence. It went on to dismiss the appeal, finding that there was no real prospect of success and that the applicant \u2019 s grounds of appeal had shown an \u201cimperfect understanding of human rights issues\u201d.","16. On 2 October 2014, the applicant appealed to the Court of Appeal for Guernsey a few days out of time and paid the court fees for the appeal nine months later. As a result, he needed the leave of court to proceed with the appeal out of time.","17. He subsequently made three requests to the Seneschal to see \u201call case file documents\/evidence that is still unknown\u201d and three similar requests to the higher courts. He requested that the proceedings be adjourned and submitted two further, lengthy sets of submissions to the Court of Appeal claiming that his human rights had been violated. He also insisted on the lack of credibility of the owners in his submissions.","18. The Court of Appeal first considered the procedural position in single judge procedure. Mr David Anderson QC a barrister practicing in England and Wales and sitting as single judge gave his decision on 26 October 2016 in an order, finding that the applicant \u2019 s appeal had been made out of time. He also noted that the applicant refused to pay the costs awarded by the Seneschal in the eviction process (see paragraph 12 above) because according to the applicant, the Seneschal \u2019 s judgment was not final and was in violation of the Convention. As to the applicant \u2019 s request to see all the documents in the case, he recalled that under the relevant procedural rules parties to litigation must disclose all the relevant documents to the opposing party and the court. He could see no reason for concluding this had not been done as it should before the Seneschal, bearing in mind that the owners had had legal representation. He considered that the applicant \u2019 s request had the look of a \u201cfishing expedition\u201d. However, he made no final ruling in this respect. Instead, he recalled that the applicant had not paid the outstanding costs awarded against him in the eviction proceedings; had given no reasons for not paying; resided outside the jurisdiction, and had not given any reason why payment was not possible. Accordingly, he ordered that the court could not entertain any further claims by the applicant until payment into court of the costs awarded against him in the eviction proceedings was made.","19. The applicant did not pay the costs but appealed the order of the single judge. He followed up that appeal with repeated requests to adjourn the proceedings. He also indicated in correspondence and lengthy submissions which are detailed in the Court of Appeal \u2019 s judgment, both that he was submitting an appeal against the order, and that he had not yet appealed the order.","20. The Court of Appeal, constituted by two judges from England and Wales (Nigel Pleming QC (President) and George Bompas QC) and Sir Michael Birt, the Bailiff of Jersey, upheld the order of the single judge in a judgment of 22 December 2016. In light of the applicant \u2019 s \u201crepeated and confused\u201d submissions, the Court of Appeal first examined whether there was an application before it. Finding that there was, the Court of Appeal went on to consider the applicant \u2019 s repeated requests for adjournment of the proceedings and concluded that it was in the interests of justice that there were no further adjournments. The Court of Appeal found that the single judge had been correct to conclude that the applicant made his appeal out of time given the significantly late payment of court fees, and notwithstanding the reminders sent to him.","21. As to the applicant \u2019 s refusal to pay the outstanding costs, the Court of Appeal recalled that payment of those costs in no way prejudiced any challenges the applicant may wish to make about the human rights compatibility of the Seneschal \u2019 s judgment before the domestic courts or this Court.","22. The applicant did not pay the outstanding costs but sought permission from the Court of Appeal to appeal its decision to Her Majesty in Council (the Judicial Committee of the Privy Council), which is the highest court of appeal for legal proceedings originating in Sark. The Court of Appeal refused permission on 18 May 2017.","23. In light of the applicant \u2019 s \u201cmany and confused\u201d submissions which it summarised in its judgment, the Court of Appeal found itself unsure of whether the applicant had actually made the application for leave for permission to appeal. It decided to assume in his favour that he had. It then reviewed his submissions and recalling that the appeal concerned an interlocutory point of procedure, concluded that there were no arguable errors of law in the judgment of the Court of Appeal and no arguable points of law of general public importance. It underlined that the applicant had been asked to pay the outstanding costs into court (not to the property owners) and recalled that the payment was due following the final decision of a court, and that it did not prejudice any human rights claims the applicant might wish to pursue.","24. The Court of Appeal indicated in its judgment that the applicant may appeal directly to the Judicial Committee of the Privy Council. The applicant has stated that he does not intend to make such an appeal as in his view it cannot remedy the many dysfunctions he has observed in the lower courts.","B. Relevant domestic law and practice","1. The Human Rights (Bailiwick of Guernsey) Law 2000","25. The Human Rights (Bailiwick of Guernsey) Law 2000, a law modelled on the United Kingdom Human Rights Act 1998, applies throughout the Bailiwick of Guernsey, including Sark. Like the Human Rights Act, the law constrains public authorities in the islands from acting contrary to Convention rights and requires the courts of the islands to take account of the case-law of the Convention bodies. It also requires the courts, so far as it is possible to do so, to read and give effect to primary legislation and subordinate legislation in a way which is compatible with the Convention rights. When it is not possible for them to do so, the islands \u2019 courts may make a declaration that the legislation is not compatible with the Convention (a declaration of incompatibility).","2. The Seneschal and the domestic court system","26. The Seneschal is the first instance judge on the island of Guernsey. Decisions of the Seneschal may be appealed to the Royal Court, the Guernsey Court of Appeal and finally the Judicial Committee of the Privy Council. According to the Royal Court (Reform) (Guernsey) Law 2008 any number of judges can be appointed to the Royal Court. Under Section 3(1) they may be appointed if they have been in practice as a lawyer for not less than ten years in Guernsey or in the United Kingdom.","27. Under Section 2(2) of the Court of Appeal (Guernsey) Law 1961 any number of judges may be appointed to the Guernsey Court of Appeal. They must have held judicial office in the British Commonwealth, or have been in practice as a lawyer for not less than ten years in Guernsey, Jersey, or the United Kingdom.","28. The Judicial Committee of the Privy Council is composed of Justices of the Supreme Court of the United Kingdom and other senior United Kingdom and Commonwealth judges (see L.L. v. the United Kingdom (dec.), no. 39678\/09, \u00a7\u00a7 11-12, 15 January 2013).","29. Following domestic judgments the Reform (Sark) Law 2008 and the Reform (Sark) (Amendment) (No.2) Law 2010 were brought into force to update legal procedures on the island. The 2010 act made provision for the appointment, re-appointment, removal and remuneration of the Seneschal. It inserted a new section, which gave the power to determine the Seneschal \u2019 s remuneration to the Chief Pleas (the parliamentary assembly for Sark).","3. The compatibility of the Court of the Seneschal with Article 6 of the Convention","(a) Barclay (no. 2) : the judgment of the High Court of England and Wales ([2013] EWHC 1183 (Admin))","30. In Barclay (no. 2), the claimants challenged the Reform (Sark) (Amendment) (No. 2) Law 2010. The High Court of England and Wales, in a judgment of 9 May 2013 rejected the challenges to provisions on appointment, removal and renewal of the Seneschal. It found that there were no grounds to doubt the independence of the members of the appointment committee and the need for the Lieutenant Governor to approve the appointment was an important safeguard. The same applied to the provisions concerning removal from office. There were also safeguards as regards renewal of the Seneschal \u2019 s appointment after the age of sixty-five.","31. The High Court found, however, that the untrammelled power of the Chief Pleas to reduce the Seneschal \u2019 s remuneration was incompatible with Article 6. The critical issue was whether there was an objective perception of the risk of pressure on the Seneschal by reason of the possibility of the Chief Pleas arbitrarily reducing his remuneration. Having found that such a possibility existed, the High Court found it necessary to consider whether this provision on its own would violate the principles of impartiality and independence required under Article 6. The High Court stated:","\u201c91. ... [W]e consider we should take into account first the long standing nature of the central importance of protecting the judiciary as an institution and a judge as an individual from an arbitrary reduction of their salary by the Executive or legislature. That has been the case in England and Wales since the Act of Settlement 1701 (12 & 13 W. III. C.2).","...","94. Third, as we have set out, it is important to look at the position in Sark itself. In ascertaining whether there has been a violation of the principles required by Article 6 as to appointment and removal we have had significant regard to the fact that Sark is a very small community. In adopting the same approach to the significance of the power to reduce the salary of the Seneschal, we have little doubt that an objective observer would see the Seneschal as vulnerable to pressure from the members of the Chief Pleas. That pressure could, for example, arise in a matter where the Seneschal had to make a decision which the law appeared to require but which the majority of the community strenuously opposed. That would not be an easy position for any judge in a very small community. It is essential therefore that the Seneschal is perceived to be under no pressure or influence from the majority in the community through the use by the Chief Pleas of its unfettered power to reduce the Seneschal \u2019 s remuneration.","...","(g) Conclusion","96. In our view protecting the independence of the Seneschal from such pressures in the small community where the Seneschal might be required to make unpopular decisions to uphold the rights of a minority is essential to the Seneschal \u2019 s independence. We therefore consider that this provision on its own is sufficient to constitute a violation of Article 6.","97. We therefore propose to grant the claimants a declaration that the decision of the Committee recommending approval of the provisions of the 2010 law amending the 2008 law was an unlawful decision, as in respect of the remuneration of the office of the Seneschal, the law was incompatible with Article 6 of the Convention.","98. We would conclude by observing that it is clear from the terms of this judgment that the incompatibility can be cured by an appropriate amendment to the law to restore to the Lieutenant Governor an effective power over remuneration. \u201d","(b) Barclay (no. 2) : the judgment of the United Kingdom Supreme Court ([2014] UKSC 54)","32. This part of the High Court \u2019 s judgment was appealed to the United Kingdom Supreme Court, which, on 22 October 2014, allowed the appeal. The Supreme Court found that, although the High Court had jurisdiction to hear such a challenge, it should not have exercised its discretion to hear it. The appropriate avenue of challenge was under the islands \u2019 own human rights legislation (see, for instance, the Human Rights (Bailiwick of Guernsey) Law 2000, set out at paragraph 25 above). The courts of the Bailiwick of Guernsey were infinitely better placed to assess the issues involved in human rights cases and there was the ultimate safeguard of an appeal to the Judicial Committee of the Privy Council. Unlike the courts of England and Wales, the Judicial Committee had the inestimable benefit of the considered judgment of the courts of first instance and appeal in the island jurisdictions, and the island authorities would have every opportunity to take part in the case.","(c) Subsequent changes in the law","33. Notwithstanding the judgment of the Supreme Court, on 6 April 2016 the Chief Pleas approved the Reform (Sark) (Amendment) Law 2016. This law amends the provision in the Reform (Sark) (Amendment) Law 2010 (see paragraph 29 above) that was criticised by the High Court. It replaces it with a provision that the remuneration of the office of the Seneschal shall be determined by an appointed panel of three persons and that the Seneschal \u2019 s salary shall be payable out of public funds after consultation with the Sark Finances and Resources Committee. The effect of the amendment is that the legislative and executive branches of government are no longer involved in settling the Seneschal \u2019 s level of remuneration. That law came into force in February 2017."],"68":["5.The applicant was born in 1973. She grew up in \u0160iauliai, which in2003, the time relevant in this case, had about 130,000 inhabitants. She currently lives in Vilnius.","A.Applicant\u2019s treatment in psychiatric institutions in 1992-2002","6.The applicant\u2019s medical records show that in May 1992 she was treated for three weeks at Kaunas Psychiatric Hospital (Kauno psichiatrijos ligonin\u0117), where doctors diagnosed her with an acute paranoid reaction disorder (\u016bmi paranoidin\u0117 reakcija). The applicant had been taken to hospital by her parents, who had stated that she had previously joined the Believers in God religious sect (Dievo tik\u0117jimo sekta) and that she had become agitated and disorientated. At her parents\u2019 request and once her health had improved, in summer 1992 she continued treatment at a psychiatric institution in \u0160iauliai (\u0160iauli\u0173 psichoneurologijos dispanseris), where her diagnosis was acute paranoid psychosis (\u016bmi paranoidin\u0117 psichoz\u0117). The doctors noted that the applicant had joined another religious sect, the Hungarian sect (Vengr\u0173), and that her condition had worsened after joining in certain of the sect\u2019s activities in a forest. In particular, she had not been able to communicate well and had spoken only about religion-related topics while at the hospital. Subsequently, the applicant received treatment in the same psychiatric institution in \u0160iauliai in 1994, when she was diagnosed with paranoia (paranoidin\u0117 b\u016bsena). She was disorientated and depressed. The doctors noted that the applicant had an inner conflict \u2013 she was dissatisfied with the hyper care (hipergloba) given to her by her mother, but was nevertheless not independent or mentally mature. In the summer of 1996 the applicant was again admitted to hospital and treated in the psychiatric institution in \u0160iauliai, where she was diagnosed with moderately severe endogenous depression (endogenin\u0117 depresija, vidutinio gilumo). Once her mental state had improved, the applicant refused to stay in psychiatric institution and was released.","7.On an unknown date, the applicant obtained a degree in law. In 1997 she won a competition to pursue postgraduate studies (podiplominei sta\u017euotei) in the United States, where she studied for two years.","8.In May 2002, the applicant\u2019s father became ill with cancer. The applicant was distressed, did not sleep well and had a car accident. Her mother took her the same month to the Volte private hospital in Vilnius, where she was diagnosed with post-traumatic stress disorder (potrauminio streso sutrikimas). She spent a week in the hospital and was released at her own wish so she could be treated as an outpatient.","9.In December 2002 the private company which employed the applicant as an in-house lawyer was put into liquidation. The applicant later found a job as a lawyer at the Ministry of Economy (\u016akio ministerija).","B.The applicant\u2019s involuntary placement and treatment at Vilnius Psychiatric Hospital in 2003","10.In February 2003 the applicant made her first visit to the Ojas Meditation Centre, the Lithuanian branch of the Osho religious movement (see Leela F\u00f6rderkreis e.V. and Others v. Germany (no. 58911\/00, \u00a76, 6November 2008), where she started meditating (prad\u0117jo medituoti). She states that she found \u201cinner spiritual and emotional healing for [her] stressed and disharmonious inner state, [caused by her] father\u2019s illness, car accident and the loss of [her previous private sector] job\u201d.","11.According to the applicant\u2019s medical records and court decisions (also see paragraphs 29, 33 and 45 below), on the morning of 7May 2003 she arrived for work as usual at the Ministry of Economy in Vilnius. She suddenly felt exhausted and asked her superior (vir\u0161inink\u0117) for some time off. When her superior refused, the applicant slammed doors and ran out of the office. She was stressed and agitated. She then left her vehicle unlocked in the middle of the street, returned to her apartment, undressed completely, and began screaming on her balcony. She did not open the door to her work colleagues. The applicant\u2019s mother called her the same day, but could not communicate with her because of the applicant\u2019s state of mind. The mother then asked for help from the applicant\u2019s cousin, E.\u0160.","At about 8 p.m. the applicant\u2019s sister, G.M., and her cousin, E.\u0160., arrived in Vilnius, and called an ambulance. The applicant was then taken by force to Vilnius Psychiatric Hospital (Respublikin\u0117 Vilniaus psichiatrijos ligonin\u0117), a public hospital under the Ministry of Health Care.","12.At the psychiatric hospital, the applicant refused to sign a form consenting to her admission and treatment. Her cousin did so instead, at 9.15 p.m. The applicant was agitated, aggressive and could not understand the situation. She was physically restrained three times for fortyminutes, and forcibly administered neuroleptics, including haloperidol. She fell asleep at 4.20 a.m. on 8May.","13.Later the same morning, the applicant was seen by a psychiatrist, doctor D.\u0160., who was also a head of division at that hospital, and doctor A.G. The doctors indicated in her medical records that the applicant \u201cdid not object to being treated\u201d at that hospital (also see paragraph 29 below).","14.In her application to the Court, and without being contradicted on this point by the Government, the applicant stated that from 8May to 13May 2007 she had been placed under the strictest patient regime at Vilnius Psychiatric Hospital. She had been supervised by a nurse twenty\u2011four hours a day in a ward with eight other patients. She had not been able to leave the ward without a nurse.","From 13 May to 5 June, the applicant was under a strict care regime. She could have a walk around the hospital grounds, but only if accompanied by a nurse.","On 5 June, and until her release on 26 June 2003, the applicant\u2019s care regime was changed and at certain times of the day she could take walks on her own within the territory of the hospital.","15.The applicant\u2019s medical record of 26May 2003 reads that the applicant at that time did not yet fully understand how sick she was (pilno liguistos b\u016bkl\u0117s suvokimo dar n\u0117ra). The record also states that \u201cit has emerged that the patient attends the Osho non-traditional meditation and improvement centre. During conversation [the applicant] states that attending the centre \u2018brings her peace\u2019 while not disturbing her social functions; it is also her \u2018essential interest\u2019. [The applicant] has an uncritical attitude to attending the centre. Psycho-correction therapy to be continued\u201d.","16.The record of 2June 2003 reads that the applicant was clear-headed (m\u0105stymas nuoseklus) and was not agitated (afektas adekvatus). The applicant \u201cwas gradually adopting a critical attitude towards psychotic behaviour and also about ways to spend her free time. The treatment was to be continued.\u201d","17.The record of 20June 2003 reads that \u201cduring psycho correction, the applicant was categorical about attending the Ojas Centre, and asserted that \u2018it was a personal matter (tai jos asmeninis reikalas)\u2019. The applicant showed no psychotic symptoms.\u201d","18.The applicant was released from Vilnius Psychiatric Hospital on 26June 2003, after fifty-two days. Her medical records, issued by that hospital and later confirmed by the court appointed experts, stated that from 8May until 26June 2003 the applicant had a transitory psychotic disorder (tranzitorinis psichozinis susirgimas), which was a serious mental disorder.","The applicant\u2019s medical record of 26 June 2003 stated that her affect (mental state) was flat (calm) and stable (afektas lygus, stabilus) and that she was clear\u2011headed. She had realistic and concrete plans for the future, had a critical attitude towards psychotic behaviour (atsiradusi kritika psichoziniam elgesiui), and had promised to continue treatment as an outpatient.","C.The Srov\u0117s television programme and the applicant\u2019s open letter in response","1.Broadcast of the Srov\u0117s television programme","19.On 17 June 2003, while the applicant was still being held in Vilnius Psychiatric Hospital, an episode of the Srov\u0117s television programme was aired on the LNK national television channel. The channel made an announcement (anonsas) about the forthcoming broadcast in the following way:","\u201cR.S. [journalist]: a secret has been revealed (demaskuota paslaptis). There is a centre which has not been registered anywhere and where the meditation practised is so powerful that to become a member you have to submit medical proof that you are not ill with HIV. ... After such meditation Violeta is today in a psychiatric hospital. Her mother is in tears ...\u201d","20.The programme itself contained the following statements, including two by doctor D.\u0160., head of division and a psychiatrist at Vilnius Psychiatric Hospital, who was interviewed by the journalist on what appeared to be the premises of Vilnius Psychiatric Hospital:","\u201cA.K. [journalist]: B. is a woman who has had a management job all her life. ...Today B. has agreed to talk because what has happened is completely unexpected. The woman did not foresee disaster, she did not foresee how her older daughter, who is now an adult, the thirty-year-old Violeta, had been charmed and what she got herself involved with.\u201d","\u201cR.S.: The organisation we are talking about today has many secrets ...\u201d","\u201cDoctor D.\u0160.: It does not appear that this young woman (mergina) would participate in orgies. She is not hypersexual, and, well, you know, as far as I have learned, she is of high morals and studied for a couple of years in America for a master\u2019s degree.\u201d","...","\u201cR.S.: We are meeting Violeta\u2019s mother and her seventeen-year-old sister at Vilnius train station. The mother and her daughter came here by train from \u0160iauliai, wishing to tell Violeta\u2019s story. They did not wish to meet in Violeta\u2019s home town (gimtuosiuose namuose), \u0160iauliai. They are afraid to hurt Violeta\u2019s father. He is seriously ill and it would be hard for him to accept (i\u0161gyventi \u017eini\u0105) what has happened to his elder daughter. More than a month ago, in the apartment in the capital where Violeta lives, the most horrible event in the young woman\u2019s life took place. Violeta suddenly had a complete nervous breakdown, acute psychosis. For Violeta\u2019s family, the reason for that psychosis is the influence of the Ojas Meditation Centre.\u201d","The programme then discussed the activities of the Ojas Meditation Centre in Vilnius. The journalist implied that the followers of Osho in Vilnius held sex orgies. As to the applicant\u2019s identity, the journalist also mentioned that \u201cVioleta obtained a master\u2019s degree abroad, had an important job in State service (dirbo atsaking\u0105 valstybin\u012f darb\u0105)\u201d and that the person was \u201ccurrently being treated at a psychiatric hospital\u201d. The programme included the following statements:","\u201cR.S.: Violeta\u2019s family state that a couple of weeks before the tragedy Violeta would meditate all day and practically not speak to anyone else. She is currently being treated in a psychiatric hospital. ...After two months of meditation Violeta was placed in a psychiatric hospital, in a state of acute psychosis (\u016bmios psichoz\u0117s b\u016bsenoje).\u201d","\u201cDoctor D.\u0160.: They [people belonging to sects] do not talk about it at all. As far as I have heard, the teachings there [at the Ojas Meditation Centre] take a couple of years, and enlightment happens or something of that kind. This takes place over four years, something is being cleansed. She [Violeta] does not talk about that. She even says that she performs some kind of practice (atlieka praktikas) there; she hides [things]. This is a common trait of members of sects, that they very much hide that fact. Or, if [things] come to light, they portray it as completely innocent. That is very common.\u201d","M.V., who according to the register of religious organisations in Lithuania is the \u201cleader\u201d and master (lyderis (meistras)) of the Ojas Meditation Centre in Vilnius, stated during the broadcast that the applicant had been terrorised by her mother. The broadcast concluded with statements by the journalist and M.V.:","\u201cR.S.: Maybe it is a coincidence, but a clear danger to Violeta\u2019s mental state appeared just after she had started meditating in accordance with Osho teachings. The young woman will need a long and difficult course of medical treatment (mergina dar ilgai ir sunkiai gydysis). The fact that she has only been in this [Ojas Meditation] centre for a couple of months leads one to reflect on how the practices of the Ojas Meditation Centre can affect someone who is constantly seeking to liberate their soul.\u201d","\u201cM.V.: Actually, there is a Catholic atmosphere and a Catholic resistance, maybe even a Christian resistance, against meditation, because there is no God in meditation ...\u201d","The applicant\u2019s mother and sister were shown during the programme and identified by their real first names as \u201cB., Violeta\u2019s mother\u201d and \u201cG., Violeta\u2019s sister\u201d. They made statements about the destructive influence that, in their view, the Ojas Meditation Centre had had on the applicant.","2.The applicant\u2019s open letter in response to the Srov\u0117s programme","21.On 14 August 2003 on the internet site of the Ojas Meditation Center the applicant published a five-page open letter to the journalists at Srov\u0117s, signing it with her real name and surname. She expressed regret that the broadcast had not been an objective portrayal of her story. She stated that \u201cby using me, you have maybe created an interesting story, but it is very one-sided. Maybe by unraveling (narpliodamos) the story through my mother you also wanted to protect me and sought to help me, but in reality your broadcast has caused me to feel much distrust and a lot of pain\u201d. The applicant then mentioned that she had previously been admitted to psychiatric institutions in 1992 and 2002, emphasising that those two periods had been unrelated to meditation. She also wrote that she had only started attending the Ojas Meditation Centre in February 2003 and that her emotional breakdown in May 2003 had had no connection to those visits. For the applicant, the Srov\u0117s journalists had therefore given an unfair account of her story, and had shown bias by implying that her mental health issues had been caused by meditating at the Ojas Centre. The applicant also stated that in 2002 she had consulted several psychotherapists (psichoterapeutai), who had helped her realise that her psychological problems had roots in her childhood, when she had been controlled by and had lived in fear of emotional and physical violence from her mother. Even at the time of writing there had been resistance and mockery from her family when the applicant had shared her new interests, such as yoga or meditation. The applicant also stated that she \u201chad not been put under a spell (neap\u017eav\u0117jo)\u201d by meditation. Instead, meditation had entered her life naturally as the result of a long and intense spiritual search. She continued:","\u201cMeditation for me is a way to learn about myself and the world, and on the basis of that understanding and by deepening it, to open myself to peace, joy, truth and love. Today meditation for me is a means to reduce emotional, spiritual and psychological tension and stress, to understand the reasons behind unhappiness, including by learning how to avoid it. Meditation allows me to live a more conscious life (s\u0105moningesnis) and one which is full of joy.\u201d","22.The applicant also referred in the letter to her involuntary admission to Vilnius Psychiatric Hospital in 2003, where she had been taken by force and deceit, and where she had never agreed to be treated. She wrote that the psychiatrists had blindly believed her mother\u2019s stories and had diagnosed her as being under the influence of a sect (sektanti\u0161kumas). That had led to the psychiatric treatment she had received being mainly directed at how to cure her from practising meditation (pagydyti nuo meditacijos) in a hostile environment that had damaged her psychologically and emotionally. In particular, the psychiatrists at the hospital had interrogated her (buvau kamantin\u0117jama) about the Ojas Meditation Centre and its practices, forced her to promise not to meditate, alleged that sex orgies had taken place there, that meditation was harmful for her mental health, that she should follow the Catholic religion which is traditional in Lithuania and that meditation was not compatible with her \u201csocial status\u201d. During one visit (vizitacija), a doctor had called her \u201cthe one from the Ojas Centre\u201d, rather than using her name. The applicant also wrote that when she had spoken about meditation at the Ojas Meditation Centre doctor D.\u0160. had simply made fun of it, had said that that was not meditation, and that the applicant knew nothing about what meditation actually was. The applicant had not been able to resist the psychiatrists at the hospital because refusing to talk to them or disagreeing with their statements about the Ojas Meditation Centre or their instructions to stop meditating had been treated as signs of mental illness. For that reason, the amount of medication at the hospital had not been reduced for a long time, strong drugs had been injected into her, and her release from hospital had been postponed. The applicant also noted that she had intended to submit a written statement to the hospital that she refused treatment, but she had been persuaded not to do so because the doctors had threatened that otherwise they would diagnose her problems in such a way that could later prevent her from getting a job.","23.The applicant concluded by noting that in July 2003 she had attended a session at the Ojas Meditation Centre, and had finally been able to meditate and recover after nearly two months in Vilnius Psychiatric Hospital in a hostile environment that had harmed her mind and body. She saw meditation as means to live a more conscious and meaningful life.","D.Civil proceedings against Vilnius Psychiatric Hospital for compensation for non-pecuniary damage","24.In May 2006 the applicant sued Vilnius Psychiatric Hospital for compensation for non-pecuniary damage. She alleged: (1)unlawful deprivation of liberty; (2)a violation of her right to a private life; (3)a violation of her right to freedom of religion; (4)a violation of her right to the inviolability of her body; (5)failure to provide proper medical care; and (6)a breach of her right to be properly informed about her diagnosis, methods of treatment and prognosis.","25.Vilnius Psychiatric Hospital responded by saying that on 7May 2003 the applicant had been involuntarily hospitalised since she had been in a state of acute psychosis and had posed a danger to herself and others. The hospital also submitted that the applicant had never complained in writing about being held unlawfully. The hospital argued that it had not disclosed any confidential information about the applicant, and that it could not be responsible for the actions of the applicant\u2019s mother and the way the Srov\u0117s broadcast had been presented. It added that the Osho religious movement had been acting outside the law in 2003 because it had only been registered in Lithuania as a religious movement on 12April 2005 (see paragraph 56 below). Furthermore, the applicant had not proved that the hospital had had no reason to think that her non-traditional religious beliefs had been the reason behind her emotional outburst (emocin\u0117s i\u0161krovos prie\u017eastis).","1.The proceedings before the first-instance court","26.The Vilnius Regional Court ordered the State Forensic Psychiatry Service at the Ministry of Health Care to produce a report to answer certain questions regarding the applicant\u2019s medical condition and her admission to Vilnius Psychiatric Hospital between 7 May and 26 June 2003 on the basis of her medical records. The forensic report was produced in November2007.","27.On 25 June 2008 the Vilnius Regional Court granted the applicant\u2019s action.","(a)As to the lawfulness of the restriction of liberty when the applicant was held at Vilnius Psychiatric Hospital","28.The Vilnius Regional Court noted at the outset that according to Articles 27 and 28 of the Law on Mental Health Care a person could be placed in hospital without his or her consent if there was a clear and present danger of him or her harming themselves or others. Even then, a court order was needed within two days to keep the person in hospital. Should a court refuse such an order, the forced hospitalisation and treatment had to be discontinued (see paragraph 69 below).","29.On the basis of the forensic expert report and other material, the Vilnius Regional Court firstly observed that the applicant had not actually denied that she might have required medical assistance on 7 May 2003 because of her state of mind. However, the court found that as of 8 May 2003 she had no longer been in need of medical support. That was confirmed by the applicant\u2019s medical file, where doctor D.\u0160. had noted on 8May at 8.15a.m. that \u201cthe patient is responding to meaningful contact, is correctly orientated (pacient\u0117 prieinama prasmingam kontaktui, orientuota teisingai)\u201d. Also, at 8.30 a.m. on the same day, doctor A.G., the other psychiatrist treating her at Vilnius Psychiatric Hospital, had written that \u201ccurrently the patient is sleepy because of medication ... her mind is clear, she is well orientated when it comes to place and time ... currently the affect is flat (pacient\u0117 \u0161.m. mieguista d\u0117l vaist\u0173 poveikio, s\u0105mon\u0117 ai\u0161ki, orientacija vietoje ir laike tiksli... \u0161iuo metu afektas lygus)\u201d. The court also based itself on the applicant\u2019s other medical records. All that meant that the applicant\u2019s state of health had no longer corresponded to that set down in Article 27 of the Law on Mental Health Care to permit her further forced hospitalisation. Despite that, the applicant had been held against her will and treated at Vilnius Psychiatric Hospital until 26 June 2003, without the hospital ever asking for a court order. That had been in breach of the two\u2011day time-limit set in Article 28 of the Law on Mental Health Care.","30.The Vilnius Regional Court also agreed with the applicant\u2019s argument that she had not been able to leave the hospital because she was under the influence of drugs, had faced a threat of being physically restrained if she disobeyed the doctors, and had been under a strict regime. The court noted that the requirement that a psychiatric patient should normally be able to express his or her consent to be hospitalised and treated had also been underlined by the Committee for the Prevention of Torture.","31.The Vilnius Regional Court also observed that there was no written evidence that the applicant had ever agreed to be placed in Vilnius Psychiatric Hospital between 7 May and 26 June 2003. According to the forensic expert report, the applicant had not been able to understand her actions on 7May 2003; however, the experts had not reached the same conclusion about the period between 8May and 26 June 2003. That notwithstanding, the applicant had been forced to stay in hospital for fifty\u2011two days for treatment. The court also emphasised that the patient was always the weaker party in relation to the hospital and its personnel. The hospital\u2019s argument that the applicant had agreed to stay by acquiescence was therefore null and void. The court also relied on doctorD.\u0160.\u2019s admission during court hearings that the applicant\u2019s life had \u201cnot necessarily been in danger\u201d for all of the fifty-two days of treatment and to the same conclusion by the applicant\u2019s treating doctor A.G. In fact, the records signed by doctor A.G. on 8 and 12May 2007 stating that the applicant was being treated at the hospital had given only one side (viena\u0161ali\u0161ki) of the situation as they had not been countersigned by the applicant. In that context, the court also had regard to the applicant\u2019s explanation that because of the side effects of the medication (sleepiness, inability to concentrate) and the possibility of physical restraint (being tied down) in case of disobedience, she had not been able to express her disagreement about being treated at the hospital in writing. The court also considered that the consent given on 7May 2013 by the applicant\u2019s cousin, E.\u0160., for the applicant to be put in hospital and treated could also not be considered as an act of agreement expressed by the applicant.","32.In the light of those factors, the Vilnius Regional Court concluded that the procedure set down in domestic law for forced admission to hospital and treatment had not only been breached in the applicant\u2019s case, but outright disregarded.","(b)As to the applicant\u2019s right to privacy","33.The applicant\u2019s mother also testified before the Vilnius Regional Court. She said that she had learned on 7May 2003 that the applicant was delirious and had asked E.\u0160. for help. That had led to the applicant being taken to Vilnius Psychiatric Hospital. The mother also said she had contacted the Ojas Meditation Centre in Vilnius about her daughter, but had not received a constructive response. She had then contacted the journalists from Srov\u0117s, because she had wished to find out what was happening to her daughter. She had not known what diagnosis the psychiatric hospital had given the applicant and had only told the Srov\u0117s journalists which hospital her daughter was in.","34.Doctor D.\u0160. testified that she was head of division (skyriaus ved\u0117ja) at Vilnius Psychiatric Hospital when the applicant had been treated there. She said that the journalists had not called her directly but that the hospital administration had informed her that they would come and had \u201ckind of stated that the talk would be about Mockut\u0117\u201d. The doctor testified that she had \u201cnot discussed [the applicant\u2019s] health\u201d with the journalists, only the Ojas Meditation Centre and meditation as such.","35.The Vilnius Regional Court then turned to the applicant\u2019s complaint of a breach of her right to privacy. Relying on Article 14 of the Law on Mental Health Care and Article 2 \u00a7 1 of the Law on the Legal Protection of Personal Data (see paragraphs 59 and 61 below), the court noted that \u201cthere was evidence in the case-file (byloje yra pateiktas \u012frodymas) that doctor D.\u0160. had, without obtaining the applicant\u2019s consent to disclose confidential information, revealed to the Srov\u0117s journalists that the applicant had been diagnosed with acute psychosis (\u016bmin\u0117 psichoz\u0117), that she was being treated at Vilnius Psychiatric Hospital, and that she had studied in the United States\u201d. The interview with the doctor had been shown during the Srov\u0117s programme on 17June 2003. The court noted that even in 2008 (\u0161iuo metu) there were not many people in Lithuania who had studied in the United States and so that characteristic had not been very common. The court also considered that \u201cother information revealed to the journalists about the applicant could also allow the applicant\u2019s identity to be established\u201d, although the court did not specify what other information it meant.","(c)As to the applicant\u2019s right to freedom of religion","36.The court then had regard to the applicant\u2019s complaint about freedom of religion by referring to Article 9 of the Convention. It also relied on Article 7 of the Law on Mental Health Care (see paragraph67 below).","37.The court found valid the applicant\u2019s complaints that the doctors had tried to dissuade (atkalb\u0117ti) her from meditating, attempted to alter her views on non-traditional meditation religion and had treated her against meditating and attending the Ojas Meditation Centre. That conclusion was based on the applicant\u2019s medical file, which contained the following records for 26May and 20 and 23 June 2003: \u201c ... absence of a critical attitude towards attending [the Ojas Meditation] Centre\u201d; \u201cduring psycho-correction expressed opinion in categorical terms about attending the Ojas Centre, argues, that \u2018it is a personal matter\u2019\u201d; \u201cwhen efforts were made during psycho-correction to get the applicant to form a critical attitude (suformuoti kritik\u0105) towards non-traditional religious beliefs, [the applicant] for a long time remained uncritical and also categorical\u201d. The first-instance court underlined the fact that the psychiatric hospital had not provided any proof of the suggestion that practising a non-traditional religion would place the applicant or others in danger. The court thus concluded that \u201cby attempting to alter the applicant\u2019s attitude to non-traditional religion, meditation, and their practice at the Ojas Meditation Centre\u201d the hospital had breached her right to freedom of religion. Lastly, the court rejected as legally irrelevant the hospital\u2019s assertion that at the time of the applicant\u2019s admission to hospital the meditation centre had been operating \u201cunlawfully\u201d. The Vilnius Regional Court observed that the religious movement had been a party to court proceedings for its registration at the time and had been registered on 12April 2005.","(d)As to the applicant\u2019s remaining complaints","38.After finding that between 9 May 2003 and 26 June 2003 the applicant had been placed in hospital and given treatment against her will in breach of domestic law (see paragraph 31 above), the Vilnius Regional Court considered that there had therefore been a breach of the applicant\u2019s right to the inviolability of her body. Furthermore, Vilnius Psychiatric Hospital had failed to prove that it had properly informed the applicant about her state of health, her diagnosis, the methods of treatment and the prognosis for her condition (see paragraph 70 below).","39.However, the Vilnius Regional Court dismissed as unsubstantiated the applicant\u2019s claims that she had been provided with inappropriate medical care at Vilnius Psychiatric Hospital and that the doctors there had forged her medical records.","(e)The first-instance court\u2019s conclusion","40.The Vilnius Regional Court thus granted the applicant\u2019s civil claim in full and awarded her 110,000 Lithuanian litas (LTL, approximately 31,850 euros (EUR)) in compensation for non-pecuniary damage. She was also awarded legal costs of LTL1,000 (EUR 290).","2.The proceedings before the Court of Appeal","41.Vilnius Psychiatric Hospital appealed. According to the hospital, there was no proof that doctor D.\u0160. had disclosed confidential information about the applicant\u2019s acute psychosis and that she was being treated at the hospital. The doctor had merely given an opinion about an unidentified person. Moreover, the doctor had pointed out during the first\u2011instance hearings that she had only given her views when answering the questions the journalists had put to her. Three witnesses\u2013the applicant\u2019s mother, sister and the journalist R.S.\u2013had explained during the first\u2011instance court\u2019s hearings that the television programme had been initiated by the applicant\u2019s relatives, who had provided information about the applicant. The first-instance court\u2019s reference to studies in the United States as a way of identifying someone was not sufficiently weighty either, and such information was not protected under Article 14 of the Law on Mental Health Care.","42.As to the applicant\u2019s right to freedom of religion, the hospital argued that the lower court had erred in equating meditation with religion. The fact that since February 2003 the applicant had attended meditation sessions of \u201cunknown origin and manner (neai\u0161kios kilm\u0117s ir pob\u016bd\u017eio meditacijas)\u201d and that they could have been one of the reasons behind her illness, had not been denied. The hospital insisted that in February 2003 the Ojas Meditation Centre had been operating outside the law. The hospital also relied on a 29August 2003 statement by the Ministry of Justice that Osho movement centres did not have the status of a religion (see paragraph 55 below), which supported the hospital\u2019s view that meditation was not a religious practice. Accordingly, the applicant\u2019s \u201cfictitious\u201d (tariama) religious freedom had not been breached.","43.The applicant responded by submitting that the right to privacy included the right not to have her health or other confidential information revealed to the journalists or her mother. The applicant added that when she had been in the psychiatric hospital, doctor D.\u0160. had persistently asked about the meditation she practised and had spoken of it with contempt. Doctor A.G. would tenaciously try to persuade her to denounce her religion and give up meditation.","44.On 20 March 2009 the Court of Appeal upheld the hospital\u2019s appeal in part.","(a)As to the lawfulness of the applicant\u2019s placement in Vilnius Psychiatric Hospital","45.The appellate court upheld the Vilnius Regional Court\u2019s finding that on the basis of her health on 7May 2003 the applicant had been lawfully placed in Vilnius Psychiatric Hospital. Her condition that day had corresponded to the domestic legal requirements for involuntary hospitalisation (see paragraph 68 below). However, the hospital had not provided any evidence that her treatment from 8May had been indispensable. It was therefore clear that as of that date her treatment at the hospital and her presence there had been involuntary and also amounted to an unlawful deprivation of liberty. The Court of Appeal relied on the Supreme Court\u2019s practice in case no.3K-3110\/2004 of 11 February 2004 to the effect that it was obligatory to follow the procedure set out in Articles 16 and28 of the Law on Mental Health Care, both when providing a patient with the necessary help (b\u016btinoji pagalba) and when placing that person in hospital without his or her consent. Under that procedure, it had been possible to place the applicant in hospital and treat her without her consent for no longer than forty-eight hours. Without a court order, the forced hospitalisation and forced treatment had to be discontinued. However, there was no information in the case file that such an order had been granted. To make matters worse, the hospital had never even asked the court for such an authorisation. The Court of Appeal thus fully shared the lower court\u2019s view that legal procedures had been outright disregarded, making the applicant\u2019s stay in the hospital unlawful.","(b)As to the applicant\u2019s right to privacy","46.The Court of Appeal noted that under Article 22 of the Constitution and Article 14 of the Law on Mental Health Care, patients had a right to have information about their health kept confidential (see paragraphs 58 and59 above). It could not be disclosed by doctor in charge of treatment or by hospital administration.","47.That being so, the Court of Appeal did not agree with the first\u2011instance court\u2019s conclusion that doctor D.\u0160.\u2019s interview with the journalists, which had been shown during the television programme of 17June 2003, had disclosed information that had revealed the applicant\u2019s identity. The appellate court relied on the Supreme Court\u2019s ruling in case no.3K-3-630\/2004 of 24November 2004, where it had found that in cases where there was no direct mention of a person in a publication, the process of identification was based on the aggregate evidence of the presence of features which could sufficiently describe the person in mind (see paragraph63 below). In the particular case of the applicant, the Court of Appeal also referred to her open letter of 14August 2003 to the Srov\u0117s journalists (see paragraphs 21 and 22 above), where she had acknowledged that the television broadcast had been instigated by members of her family, that she had not been shown in the programme in person, and that she had been given a different name. The Court of Appeal considered that the fact that the main character of the programme (laidos heroj\u0117) had studied in the United States was not sufficient to establish that the programme was about the applicant. As the applicant had not established that the information disclosed during the broadcast had allowed her to be identified, her claim for breach of privacy had to be dismissed.","48.Lastly, the appellate court rejected the applicant\u2019s argument that her privacy had been breached because confidential information had been given to her mother. The applicant had been treated earlier in psychiatric institutions in Kaunas and \u0160iauliai because of mental health problems and her mother had been aware of those previous periods in hospital. Moreover, providing information to close relatives about the applicant\u2019s health could not be regarded as a breach of her right to privacy.","(c)As to the applicant\u2019s right to freedom of religion","49.The Court of Appeal noted that the right to freedom of religion had been enshrined in Article 26 of the Constitution (see paragraph 64 below) and Article 9 of the Convention. It also noted that under Article 7 of the Law on Mental Health Care, people in hospital had the right to perform religious rites. That right could be restricted by a psychiatrist\u2019s decision only if there was a clear danger to the patient or others, and such restrictions had to be recorded in the patient\u2019s medical file (see paragraph 67 below).","50.On the facts of the case, the Court of Appeal disagreed with the lower court\u2019s conclusion that there had been a breach of the applicant\u2019s right to freedom of religion while she was in Vilnius Psychiatric Hospital. For the Court of Appeal, there was no evidence in the file that the applicant had been forbidden from performing religious rites. Even though the medical records showed (yra matyti) that her doctors had tried to get the applicant to form a critical attitude towards her religious convictions (religinius \u012fsitikinimus), there was no information that any restrictions had been applied to her. The Court of Appeal found that \u201cthe doctors\u2019 attempts to get the applicant to form a critical attitude towards her religious convictions did not mean that [the applicant\u2019s] religious freedom had been breached\u201d.","(d)As to the applicant\u2019s remaining complaints","51.The Court of Appeal upheld the lower court\u2019s findings that there was no proof that the applicant had received inappropriate medical treatment. It also shared the lower court\u2019s conclusion that Vilnius Psychiatric Hospital had not properly informed the applicant about the treatment she received therein.","(e)The appellate court\u2019s conclusion","52.Having dismissed part of the applicant\u2019s complaints, the Court of Appeal lowered the award for non-pecuniary damage to LTL20,000 (approximately EUR5,800). The applicant was also ordered to pay Vilnius Psychiatric Hospital\u2019s legal costs of LTL3,202 (approximately EUR927). Lastly, the appellate court quashed the part of the first-instance decision on the applicant\u2019s costs being paid by the hospital so she had to bear the legal costs herself.","3.The proceedings on points of law","53.On 17 June 2009 the applicant submitted an appeal on points of law. She argued that the lower courts had failed to properly apply Convention norms on the right to privacy and freedom of religion.","54.By a ruling of 19 June 2009 the Supreme Court refused to admit the appeal for examination, holding that the applicant\u2019s arguments were not sufficient to merit examination.","E.The registration of the Ojas Meditation Centre in Lithuania as a religious community","55.On 12 March 2003 the Ojas Meditation Centre applied to the Ministry of Justice to be registered as a religious community.","On 29 August 2003 the Ministry of Justice rejected the application because it considered that although the Centre was on the \u201cborder between self-help psychology and religion (egzistuojantis savipagalbos psichologijos ir religijos paribyje)\u201d, it should not be treated as a religious community. Even though the Osho teachings mentioned in the Ojas Meditation Centre\u2019s by-laws were called religious, meditation there was more based on esoteric doctrines of self-improvement than on a religious practice whose main feature was connecting with God, gods or other sacred forms. The Ministry of Justice also noted that Osho movements did not have the status of a religion in western Europe countries.","56.The Ojas Meditation Centre then started court proceedings. Its action was eventually granted by the Supreme Administrative Court on 4 February 2005. The court found no evidence that the Ojas Meditation Centre propagated any controversial practices amongst its members. It was registered as a religious community (religin\u0117 bendruomen\u0117) on 12April 2005 (see Gineitien\u0117 v. Lithuania, no.20739\/05, \u00a724, 27July 2010).","57.In her observations sent to the Court on 13 January 2015, the applicant stated that she had continued to that day to practise meditation at the Ojas Meditation Centre.","A.The United Nations","1.Convention on the Rights of Persons with Disabilities","73.The relevant part of the United Nations Convention on the Rights of Persons with Disabilities, A\/RES\/61\/106, 24 January 2007 (hereinafter: the \u201cCRDP\u201d), signed by Lithuania on 30 March 2007, and ratified on 18 August 2010, provides:","Preamble:","\u201c...","16.Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status ...\u201d","Article 22\u2013Respect for privacy","\u201c1.No person with disabilities, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence or other types of communication or to unlawful attacks on his or her honour and reputation. Persons with disabilities have the right to the protection of the law against such interference or attacks.","2.States Parties shall protect the privacy of personal, health and rehabilitation information of persons with disabilities on an equal basis with others.\u201d","74.The United Nations Special Rapporteur on the right of everyone to enjoy the highest attainable standard of physical and mental health, MrDainius P\u016bras, has set as \u201cone of his priorities to look into the role of the health sector and health professionals in the implementation of ambitious goals by the CRPD\u201d. On 2April 2015 he issued a report concerning the right to health for all people with disabilities and scrutinised the practice of deprivation of liberty in closed psychiatric institutions:","\u201c94.The human rights standards set forth by the [CRDP] present a good opportunity to rethink the historical legacy of previous models and to move away from those health-care practices which are against human rights and the modern public health approach. There is a unique and historic opportunity to end the legacy of the overuse and misuse of the biomedical model.","...","96.The [CRDP] is challenging traditional practices of psychiatry, both at the scientific and clinical-practice levels. In that regard, there is a serious need to discuss issues related to human rights in psychiatry and to develop mechanisms for the effective protection of the rights of persons with mental disabilities.","97.The history of psychiatry demonstrates that the good intentions of service providers can turn into violations of the human rights of service users. The traditional arguments that restrict the human rights of persons diagnosed with psychosocial and intellectual disabilities, which are based on the medical necessity to provide those persons with necessary treatment and\/or to protect his\/her or public safety, are now seriously being questioned as they are not in conformity with the [CRDP].","99.A large number of persons with psychosocial disabilities are deprived of their liberty in closed institutions and are deprived of legal capacity on the grounds of their medical diagnosis. This is an illustration of the misuse of the science and practice of medicine, and it highlights the need to re-evaluate the role of the current biomedical model as dominating the mental-health scene. Alternative models, with a strong focus on human rights, experiences and relationships and which take social contexts into account, should be considered to advance current research and practice...\u201d","B.Council of Europe","1.Council of Europe Parliamentary Assembly Recommendation 1235(1994) on psychiatry and human rights","75.The relevant part of Recommendation 1235(1994) on psychiatry and human rights of 12 April 1994 provides:","\u201c...","7.The Assembly therefore invites the Committee of Ministers to adopt a new recommendation based on the following rules:","7.1.Admission procedure and conditions:","a.compulsory admission must be resorted to in exceptional cases only and must comply with the following criteria:","there is a serious danger to the patient or to other persons;","an additional criterion could be that of the patient\u2019s treatment: if the absence of placement could lead to a deterioration or prevent the patient from receiving appropriate treatment;","b.in the event of compulsory admission, the decision regarding placement in a psychiatric institution must be taken by a judge and the placement period must be specified. Provision must be made for the placement decision to be regularly and automatically reviewed...","c.there must be legal provision for an appeal to be lodged against the decision...","(...)","7.4.Situation of detained persons:","(...)","c.... the rules of ethics should be applied to detained persons and, in particular, medical confidentiality should be maintained in so far as this is compatible with the demands of detention...\u201d","2.Recommendation Rec(2004)10 of the Committee of Ministers to member States concerning the protection of the human rights and dignity of persons with mental disorders","76.The relevant parts of Recommendation Rec(2004)10 of 22September 2004 read as follows:","Article 4 \u2013 Civil and political rights","\u201c1.Persons with mental disorder should be entitled to exercise all their civil and political rights.","2.Any restrictions to the exercise of those rights should be in conformity with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and should not be based on the mere fact that a person has a mental disorder.\u201d","Article 13 \u2013 Confidentiality and record-keeping","\u201c1.All personal data relating to a person with mental disorder should be considered to be confidential. Such data may only be collected, processed and communicated according to the rules relating to professional confidentiality and personal data protection.","2.Clear and comprehensive medical and, where appropriate, administrative records should be maintained for all persons with mental disorder placed or treated for such a disorder. The conditions governing access to that information should be clearly specified by law.\u201d","3.European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment","77.The delegation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (\u201cthe CPT\u201d) visited Lithuania from 27November to 4 December 2012. In its ensuing report, published on 4June 2014, and as regards Vilnius Psychiatric Hospital, the CPT noted:","\u201cC.Psychiatric establishments","1.Preliminary remarks","89.In the course of the 2012 visit, the CPT visited for the first time Vilnius Republican Psychiatric Hospital. The visit was of a targeted nature, focusing on the application of means of restraint and the implementation in practice of legal safeguards for involuntary hospitalisation of civil psychiatric patients.","90.Vilnius Republican Psychiatric Hospital is the largest psychiatric institution in Lithuania, with an official capacity of 619 beds (distributed among fourteen in-patient units, both locked and open). At the time of the delegation\u2019s visit, the establishment was accommodating 394 civil patients. Of them, seven had been placed there on an involuntary basis pursuant to [Article 28 of the Law on Mental Health Care]. The delegation was told that the average stay in the Hospital lasted 23 days.","91.From the outset, it should be emphasised that the delegation received no allegations \u2013 nor any other indications \u2013 of ill-treatment of patients by staff at Vilnius Republican Psychiatric Hospital.","2.Means of restraint","92.The restraint of violent psychiatric patients, who represent a danger to themselves or others, may exceptionally be necessary. However, this is a subject of particular concern to the CPT, given the potential for abuse and ill-treatment.","Reference should be made to the report on the CPT\u2019s 2008 visit to Lithuania, in which the Committee set out some of its main standards in this area.","93.The restraint measures used at Vilnius Republican Psychiatric Hospital were manual, mechanical and chemical restraint, sometimes applied in combination. The delegation was informed that seclusion was not practised at the Hospital. Mechanical restraint was applied in two rooms (\u201cobservation rooms\u201d) located in the intensive care unit, each of which was equipped with special beds for five-point fixation using belts with magnetic locks.","Both mechanical and chemical restraint measures had to be authorised by a doctor and were recorded in the patient\u2019s (computerised) medical file. However, it was not always clear from the records for how long a patient had been restrained. Moreover, there was no central register at the Hospital for recording the use of means of restraint. The delegation was also concerned to learn that there was no continuous, direct and personal supervision of the patient\u2019s condition during fixation. Instead, supervision was carried out by means of regular inspections (every 30 minutes) by a nurse and CCTV surveillance. It also appeared that a patient could on occasion be fixated in full view of another patient.","94.The CPT recalls that every instance of recourse to means of physical (manual), mechanical or chemical restraint should be recorded in a specific register (either paper-based or electronic) established for this purpose as well as in the patient\u2019s file. The entry should include the times at which the measure began and ended, the circumstances of the case, the reasons for resorting to the measure, the means and\/or medication used, the name of the doctor who ordered or approved it, the names of the staff who participated in the application of the restraint measure, and an account of any injuries sustained by patients\/residents or staff.","It is also essential that whenever a patient is subject to restraint, a qualified health-care staff member is continuously present in order to maintain the therapeutic alliance and provide assistance.","Contact is to be maintained in an appropriate way aiming at de-escalating the situation and discontinuing the measure. Clearly, video surveillance cannot replace such a continuous staff presence. Further, a restrained patient should not be exposed to other patients, unless he\/she explicitly expresses a wish to remain in the company of a certain fellow patient.","Means of restraint should only be used for the shortest possible time (usually minutes to a few hours). When the emergency situation resulting in the application of restraint ceases to exist, the patient should be released immediately. Moreover, a debriefing with the patient should take place at the end of the application of any means of restraint. This debriefing will provide an opportunity for the doctor to explain the need for the measure and thus help relieve uncertainty about its rationale. For the patient, such debriefing provides an occasion to explain his\/her emotions prior to the restraint, which may improve both the patient\u2019s own and the staff\u2019s understanding of his\/her behaviour.","The CPT recommends that steps be taken at Vilnius Republican Psychiatric Hospital to ensure that the minimum standards set out above are applied whenever resort is had to means of restraint.","95.The CPT is very concerned to note that psychotropic medication \u2013 including haloperidol \u2013 was almost routinely administered to patients in the intensive care unit by means of direct intravenous injections (sometimes in very high doses), in order to control episodes of agitation and generally for prolonged periods (of up to ten days). Such a practice presents serious risks for the patients concerned (cardiac arrhythmias, low blood pressure, severe neurological reactions, coma, etc.) and should be used only very exceptionally, failing the use of oral (or, if necessary, intramuscular) medication and provided that there is close and continuous clinical monitoring (including ECG monitoring). The CPT recommends that the Lithuanian authorities review the aforementioned practice, in the light of the above remarks. [The CPT noted that haloperidol injections are not approved for intravenous administration in many countries because of the potentially fatal side effects].","3.Safeguards in the context of involuntary hospitalisation","96.In the reports on the 2004 and 2008 visits, the CPT had made a number of specific recommendations concerning the legal safeguards surrounding involuntary psychiatric hospitalisation of a civil nature. Regrettably, the findings made by the delegation during its visit to Vilnius Republican Psychiatric Hospital suggest that most of those recommendations have remained unimplemented.","97.The legal procedure relating to involuntary hospitalisation of civil psychiatric patients was described in the report on the CPT\u2019s 2004 visit. The information gathered by the delegation during the 2012 visit indicated that this procedure was duly followed at Vilnius Republican Psychiatric Hospital. It also transpired that as a rule patients subject to involuntary placement were represented by a lawyer. In this connection, the delegation was told by the Hospital\u2019s management that in most cases the assigned ex officio lawyer came to the Hospital to see and talk to the patient concerned.","98.However, it remained the case that judges usually ordered involuntary hospitalisation without ever having seen the patient concerned. In practice, their role was often limited to simply carrying out a formal check of the documents submitted by the Hospital\u2019s administration.","Further, as far as the delegation could ascertain, judges were not required to (and in practice never did) seek an opinion from a psychiatrist outside the hospital concerned during civil involuntary placement procedures. As the CPT has stressed in the past, the procedure by which involuntary placement in a psychiatric establishment is decided should offer guarantees of independence and impartiality as well as of objective psychiatric expertise.","The CPT reiterates its recommendation that the Lithuanian authorities take steps to ensure that in the context of civil involuntary hospitalisation and extensions thereof:","-patients have the effective right to be heard in person by the judge (for this purpose, consideration may be given to the holding of hearings on hospital premises);","-the court always seeks an opinion from a psychiatrist who is not attached to the psychiatric institution admitting the patient concerned.","99.A number of recent court decisions on involuntary psychiatric hospitalisation were consulted by the delegation during the visit to the Hospital. It was struck by the fact that, whereas some of the decisions referred to the patient\u2019s (or his\/her representative\u2019s) right to appeal against the decision (within seven days), others explicitly mentioned that they were not subject to appeal. The CPT would like to receive the observations of the Lithuanian authorities on this matter.","100.As already indicated in paragraph 90, at the time of the visit to the Hospital, only seven patients were formally considered as involuntary. However, from interviews with staff and patients, it became apparent that a number of \u201cvoluntary\u201d patients were in fact not free to leave the hospital premises on their own and were thus de facto deprived of their liberty. Many of them were being accommodated in locked units and were only allowed to take outdoor walk at fixed times and when accompanied by staff. As the CPT made clear in the report on its 2008 visit, if it is considered that a given patient, who has been voluntarily admitted and who expresses a wish to leave the hospital, still requires inpatient care, then the involuntary civil placement procedure provided by the law should be fully applied.","The CPT recommends that the legal status of patients at Vilnius Republican Psychiatric Hospital be reviewed, in the light of the above remarks.","101.Lithuanian legislation still does not provide for a distinction between involuntary placement in a psychiatric institution and treatment without consent. The CPT wishes to stress once again that psychiatric patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment. The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his\/her consent. Every competent patient, whether voluntary or involuntary, should be fully informed about the treatment which it is intended to prescribe and given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances.","The CPT reiterates its recommendation that the Lithuanian authorities take steps - including of a legislative nature - to distinguish clearly between the procedure for involuntary placement in a psychiatric institution and the procedure for involuntary psychiatric treatment, in the light of the above remarks.\u201d"],"69":["6.The applicant was born in 1972 and is currently detained at Varna Prison.","7.Before the events at issue, he had several previous convictions for theft.","A.Arrest of the applicant and pre-trial proceedings","8.A seventy-five-year-old lady, a neighbour of the applicant\u2019s parents, was murdered in her house in Varna on the morning of 18 June 2006, and a number of her personal possessions were stolen from the house. The applicant was suspected of having committed the offence and a search order was issued in respect of him.","9.On the morning of 21 June 2006 the applicant was arrested. He had been hiding in an abandoned house in a neighbouring village. The police report on his arrest stated that he had \u201cslightly\u201d resisted the arrest, and that force had been used in order to take him out of his hiding place (under a bed) and handcuff him.","10.The applicant was taken to the police station in the nearby town of Valchi Dol, where, at 11.30 a.m., an order for his arrest was issued under section63(1) of the Ministry of the Interior Act 2006 (see paragraph 26 below). The applicant signed a declaration stating that he wanted to be assisted by a lawyer and that he had liver and stomach pains, due to \u201cpast ailments\u201d, and wished to be examined by a doctor.","11.Later in the day, two police officers from Varna, Z.K. and V.V., arrived in Valchi Dol. They had a conversation with the applicant, during which he confessed, according to him under physical duress, to having committed the murder and described his actions in the days preceding his arrest. In addition, he confessed to having stolen a gun and other personal possessions from another house on an earlier occasion. The confession was written down and was signed by the applicant and Officer V.V.","12.Later on that same day the applicant was transferred to the police station in Varna, where he asked to be examined by a doctor. The examination started at about 8 p.m. The doctor identified bruises and haematomas on the applicant\u2019s right elbow, right flank, buttocks and wrists, which had been caused by hard, blunt objects less than twenty-four hours earlier.","13.On 22 June 2006 an investigator brought charges against the applicant in relation to another offence, an unrelated theft, and a prosecutor ordered his detention for up to seventy-two hours. On 23 June 2006 the Varna District Court ordered the applicant\u2019s detention on remand in connection with that charge. The criminal proceedings concerning that charge proceeded alongside the proceedings which are the subject of this application, and were completed in March 2007.","14.The murder investigation, to which the investigation into the alleged theft of a gun and other personal possessions mentioned in the applicant\u2019s confession to Officers Z.K. and V.V. was joined, continued over the months which followed. The police gathered further evidence and witness testimony, some of which was identified on the basis of that confession. They never found the objects stolen from the victim\u2019s house. On 18December 2006 an investigator brought charges against the applicant in connection with the two offences mentioned above. On that occasion the applicant had a lawyer, retained by him on the same day. The applicant made a brief statement that he was not guilty.","15.On an unspecified date in 2007 the applicant was indicted and taken to court.","B.Trial","16.The Varna Regional Court (hereinafter \u201cthe Regional Court\u201d), which examined the case at first instance, held its first hearing on 25 June 2007. It heard the doctor who had examined the applicant on the evening of 21 June 2006 (see paragraph 12 above). She stated that she maintained the opinions expressed in her previous report, and the prosecution and the defence posed no further questions. Officers Z.K. and V.V. were examined as witnesses and recounted their conversation with the applicant on 21 June 2006 and the confession he had made to them. They replied to questions posed by the prosecution and the defence. The applicant\u2019s father was examined as well, and he stated that he had visited his son about ten days after his arrest. The applicant had told him that he had been beaten in order to confess, and some traces of this beating had still been visible on him. The Regional Court heard other experts and witnesses.","17.During the next hearing, held on 3 October 2007, the applicant made a statement on the charges. He said that he had not committed the offences, as at the time of the murder he had been at his grandmother\u2019s house in another village, and that he had confessed to the offences under duress.","18.On 11 February 2008 the Regional Court examined more witnesses and then the parties made oral submissions. Counsel for the applicant contested the testimony of Z.K. and V.V. in particular, arguing that their examination had been contrary to Article 118 of the Code of Criminal Procedure (see paragraph 31 below). He pointed out moreover that, while the applicant had made a confession to those two officers, he had not repeated that confession when taken before an investigator. At the same time, the confession was one of \u201cthe pillars\u201d of the indictment, as there was no other evidence showing the course of the events inside the victim\u2019s house.","19.In a judgment given on 11 February 2008 the Regional Court convicted the applicant and sentenced him to life imprisonment. On the basis of the evidence collected, it concluded that the applicant had stolen a gun and other personal possessions several days before the murder, and on the day of the murder had entered the victim\u2019s house in order to steal food. When she had surprised him in the house, he had attacked her, hitting her with the gun stolen earlier \u2013 in such a way that a part of the gun\u2019s cock had broken off and fallen to the floor \u2013 and with an axe which he had found in the house. After the murder the applicant had run away. A stranger had given him a lift to another village, but the applicant had forgotten a bag containing his clothes and the gun in the stranger\u2019s car.","20.In establishing the facts, the Regional Court relied on the following most important pieces of evidence: a metal fragment which had been found under the victim\u2019s body and which the experts confirmed to be the missing part of the cock of the gun; traces of the victim\u2019s blood found on the handle of the gun found in the applicant\u2019s bag; the testimony of the person who had given the applicant a lift in his car and had found that bag; the fact that that person had also recognised the applicant\u2019s photo when it had been shown to him by the police; and the testimony of Officers Z.K. and V.V., who had recounted what the applicant had confessed to them with regard to the course of the events in the victim\u2019s house. As to the officers\u2019 testimony, the Regional Court pointed out that it considered it credible, since the confession as recounted by them had enabled the police to continue the investigation and identify further evidence.","21.The applicant lodged an appeal.","22.In his written and oral submissions to the Varna Court of Appeal (hereinafter \u201cthe Court of Appeal\u201d), counsel for the applicant contested once again the testimony given by Z.K. and V.V. He argued that the Regional Court had not commented on the evidence showing that the applicant had been beaten in order to make the confession the officers had recounted, pointed out that the confession had not been repeated once the applicant had been taken before an investigator, and relied again on Article 118 of the Code of Criminal Procedure.","23.In a judgment of 30 May 2008 the Court of Appeal upheld the applicant\u2019s conviction and sentence, finding that his guilt had been proved beyond reasonable doubt. In addition to the evidence described above, it relied on the testimony of a neighbour of the victim, who had seen a person considered to be the applicant on the roof of the victim\u2019s house shortly before the murder. As to Z.K. and V.V., the Court of Appeal pointed out that they had not been investigating bodies within the meaning of the Code of Criminal Procedure, and that their testimony had been assessed in the light of all other evidence. Furthermore, it commented on the exonerating evidence, in particular expert reports finding no fingerprints of the applicant and no traces of his scent in the victim\u2019s house, saying that this was not sufficient to refute the accusations.","24.The applicant lodged an appeal on points of law. His counsel contested once again the testimony of Officers Z.K. and V.V., pointing out that the lower courts had not commented on the evidence showing that the applicant had been beaten in order to confess. Moreover, the officers\u2019 testimony had been given in breach of Article 118 of the Code of Criminal Procedure.","25.In a final judgment of 13 November 2008 the Supreme Court of Cassation upheld the Court of Appeal\u2019s judgment. As to the arguments of the defence concerning the testimony of Z.K. and V.V., it observed that the confession as recounted by the officers contained details which could only have been known to the perpetrator of the crimes at issue, and thus could not have been \u201cinstigated\u201d. Moreover, allowing Z.K. and V.V. to testify had not been in breach of Article 118 of the Code of Criminal Procedure.","32.In a report on its visit to Bulgaria in 2006 (CPT\/Inf (2008) 11) the CPT stated the following:","\u201c28.Most detained persons interviewed by the delegation during the 2006 visit indicated that they had been asked to declare in writing whether they wished to benefit from the right to contact a lawyer after they had been brought to a police station. However, it was alleged by some detainees that police officers had suggested that they should decline this right as they \u2018did not need a lawyer\u2019 or had told them that they were not entitled to an ex officio lawyer prior to appearing in court. It became clear during the visit that very few persons who had expressed a wish to meet a lawyer \u2013 be it private or ex officio \u2013 had been given this opportunity while in police custody.","...","The CPT recommends that the Bulgarian authorities recall to all police officers the legal obligation to grant access to a lawyer from the very outset of a person\u2019s deprivation of liberty.\u201d","33.Similar findings were made in the CPT reports which followed, namely after its visits to Bulgaria in 2008, 2010 and 2014 (CPT\/Inf(2010)29, CPT\/Inf (2012) 9, CPT\/Inf (2015) 12).","34.On 26 March 2015 the CPT issued a public statement on Bulgaria under Article 10 \u00a7 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT\/Inf(2015) 17). The statement contained the following paragraphs in particular:","\u201cPolice ill-treatment","...","6.Very little progress, if any, has been made as regards the legal safeguards against police ill-treatment, and the CPT\u2019s key recommendations in this sphere are still to be implemented. In particular, access to a lawyer remained an exception during the initial 24 hours of police custody and the ex officio lawyers did not perform their function as a safeguard against ill-treatment. Further, persons in police custody were still rarely put in a position to notify promptly a person of their choice of their detention, and were not systematically informed of their rights from the outset of their custody.","...","Concluding remarks","...","18.... As regards the treatment of persons detained by law enforcement agencies, resolute action is required to ensure the practical and meaningful operation of fundamental safeguards against ill-treatment (including the notification of custody, access to a lawyer, access to a doctor, and information on rights).","...\u201d"],"70":["6.The applicants in application no. 68125\/14 (Wetjen) are a mother and father and their son, born in 2011. The applicants in application no.72204\/15 (Schott) are a mother and father and their three daughters, born in 1999, 2002 and 2004 respectively. All the applicants are members of the Twelve Tribes Church (Zw\u00f6lf St\u00e4mme) who lived in a community of around 100 members of the church in Klosterzimmern. A second community with around 20 members was located in the nearby village of W\u00f6rnitz.","A.Background to the case","7.In 2012 the press reported about the Twelve Tribes Church and its position on the right of parents to apply corporal punishment, especially caning. Furthermore, statements by a former member of the community were published, confirming that children had been punished with rods.","8.In 2012 and 2013 the local youth office (Jugendamt) visited the community, and its spokespersons were invited to a meeting at the Bavarian Ministry of Education. Corporal punishment and the issue of compulsory schooling were discussed at the meeting.","9.On 16 August 2013 the local youth office and the N\u00f6rdlingen Family Court received video footage from a television reporter showing ten different instances of corporal punishment in the community. The footage, filmed with a hidden camera, showed the caning of various children between the ages of three and twelve. None of the applicants was shown in the video footage. According to the television reporter, the person who carried out the punishment was not, in most cases, a parent of the child being punished.","B.Taking the children into care","10.After receiving the video footage, the Family Court initiated a preliminary investigation and on 21 August 2013 heard six witnesses, all former members of the Twelve Tribes community. The witnesses confirmed that various forms of corporal punishment were used in the upbringing of children in the community. These included swaddling (pucken) a child from birth until the age of around three, involving wrapping the child up very tightly to suppress any urge to move. Starting from the age of about three, children would be disciplined by caning, which lasted until about the age of twelve. The witnesses further stated that children were punished by whichever adult was supervising the children at the time and that parents were pressured by the community to conform to the rules of upbringing.","11.On 1 September 2013 the N\u00f6rdlingen Family Court, upon an application by the competent youth office, made an interlocutory order regarding all children in the Twelve Tribes community, including the applicant children. The court withdrew the applicant parents\u2019 rights to decide where their children should live (Aufenthaltsbestimmungsrecht), and to take decisions regarding the children\u2019s health (Gesundheitsf\u00fcrsorge), schooling and professional training, and transferred those rights to the youth office. The court based its decision on its finding that there was a reasonable likelihood that the children would be subjected to corporal punishment. The court also ordered that the youth office, when taking the children into care, could have recourse to compulsion, request support from the police and be permitted to enter the premises of the Twelve Tribes community in Klosterzimmern.","12.On 5 September 2013 the youth office took the community\u2019s children into care. They were supported by around 100 police officers, who, at the same time, searched the community\u2019s premises under an order from the Augsburg public prosecutor\u2019s office and seized seven wooden rods.","13.The applicant children were subsequently examined but no physical signs of abuse or beating were revealed.","14.The applicants B., C. and I. Schott were moved to a children\u2019s home. Since the applicant J. Wetjen was then only two years and five months old and was still being breastfed, he and his mother were housed together temporarily in a home under supervision. On 9 December 2013 J.Wetjen was taken from his mother and placed in a foster family. The mother had been ordered to wean her son two months beforehand. However, since she refused, the son was taken from her by force.","C.Review of the interlocutory order","1.Application no. 68125\/14 (Wetjen)","15.The Family Court examined the applicant parents on 10October 2013. The parents stated that they had restrained their son by swaddling, but denied that this amounted in any way to child abuse. They refused to answer any questions about caning, but quoted passages from the Bible, which justified such a practice.","16.On 29 November 2013 the Family Court upheld its interlocutory order of 1 September 2013. On the basis of Articles 1631, 1666 and 1666a of the German Civil Code (see paragraphs 30\u201332 below), the court stated in its reasoning that there was a high probability that leaving the son in the community or returning him there would lead to him being subjected to corporal punishment, thus infringing his personal dignity and integrity, values protected by the German Basic Law (see paragraphs 26 and 27 below). It further found that the use of corporal punishment from such an early age would prevent the free development of his personality and instead teach unconditional obedience. The court based its assessment on the submissions of the parents, in which they had confirmed that they had disciplined their son. The court found that the statements by other children in parallel proceedings, the video footage and the statements of other witnesses confirmed that the disciplining of children in the community would include corporal punishment. Therefore, it was necessary to take the son out of the community as the option which least infringed the family\u2019s rights, but which ensured that he would not be caned or harmed in any other way. It held that even if the parents might be able to resist pressure from the community, they would not be able to ensure that other community members would not cane the child when supervising him. The court also initiated the main custody proceedings and commissioned a psychologist\u2019s expert opinion on the family.","17.On 28 January 2014 the applicant parents were examined by the Munich Court of Appeal. The father stated that, in his opinion, a mild caning constituted neither violence nor child abuse. Both parents also continued to refuse to answer any questions about whether their son had been caned previously. The court decided against examining the applicant child owing to his age and the mental stress that a hearing would cause and instead heard the guardian ad litem (Verfahrensbeistand).","18.On 5 March 2014 the Munich Court of Appeal upheld the Family Court\u2019s decision in essence. It overturned the decision on the withdrawal of the parents\u2019 right to take decisions regarding their son\u2019s schooling and professional training, because, owing to his age, there was no need for the withdrawal of such a right in an interim decision. The Court of Appeal found it established that the parents considered caning to be part of their son\u2019s upbringing and that the son would be caned if returned to his parents and the community. It based its finding on the statements of the parents and witnesses, and the guidelines in a leaflet entitled Our teachings on child training. The court further noted that bringing up children in this way was not justified by the parents\u2019 freedom of religion. It also found that there had been no other option entailing less of an infringement of the family\u2019s rights because up to that point the parents had not shown any willingness to refrain from disciplining their son, and greater assistance from the youth office would not ensure the safety of the son at all times. It further observed that only the opinion of the expert, expected in the main proceedings, would be able to determine the potential consequences of degrading educational methods aimed at unconditional obedience.","19.On 5 May 2014 the Federal Constitutional Court refused to accept a constitutional complaint by the applicant for adjudication, without providing reasons (1 BvR 770\/14).","2.Application no. 72204\/14 (Schott)","20.The Family Court examined the applicant children on 9October 2013. All three daughters stated that they would like to return to their parents and the community. The two younger daughters refused to answer any questions regarding being disciplined or caned, or about the schooling and health\u2011care system in the community. The oldest daughter confirmed that her two sisters had been caned and that she herself had been caned when she was younger. However, she also stated that this had stopped after her Bat Mitzvah. The applicant parents were examined on 15 November 2013.","21.On 30 November 2013 the Family Court revoked its interlocutory order of 1 September 2013 concerning the parents\u2019 right to decide on the oldest daughter\u2019s place of residence and health, but upheld the rest of the decision. The court considered that it was very likely that the other two girls, if left in the community or returned to it, would be subjected to corporal punishment. The court based its assessment on written submissions from the parents, in which they confirmed that they had disciplined their children but denied beating or abusing them. The court observed that statements by the daughters and other children in parallel proceedings, the video footage and the statements of other witnesses had confirmed that the disciplining of children in the community might include corporal punishment. As in its decision in application no. 68125\/14 (see paragraph16 above), the court held that it had been necessary to take the children out of the community and that there had been no other less infringing measure. Regarding the oldest daughter, the court found that owing to her age there was no longer a risk that she would be caned. The court also initiated the main custody proceedings and commissioned a psychologist\u2019s expert opinion on the family\u2019s situation.","22.In the beginning of December 2013 the oldest daughter was returned to her parents. She has been living with them in the community of the Twelve Tribes Church in Klosterzimmern since.","23.On 5 March 2014 the Munich Court of Appeal upheld the Family Court\u2019s decision in essence. It overturned the decision on the withdrawal of the parents\u2019 right to take decisions regarding professional training for the two younger daughters because there was no need for the withdrawal of such a right in an interim decision. The Court of Appeal found it established that all three children had been caned and that there was a high probability that the two younger children would be caned again if returned to their parents and the community. It based its finding on the statements of the oldest daughter, which had been confirmed by the statements of the former members of the community and the guidelines in the leaflet Our teachings on child training. As in its decision in application no. 68125\/14 (see paragraph 18 above) the court also noted that caning was not justified by the parent\u2019s freedom of religion and that there had been no other option entailing less of an infringement of the family\u2019s rights. It further observed that the wishes of the two girls (nine and twelve years old) did not prevent the taking of such a decision because only the expert opinion expected in the main custody proceedings would clarify how relevant the wishes of the girls were and the extent to which they had formed those wishes themselves.","24.On 5 May 2014 the Federal Constitutional Court refused to accept a constitutional complaint by the applicants for adjudication, without providing reasons (1 BvR 959\/14).","D.Review of the execution of the interlocutory order","25.The applicants also appealed the form of execution ordered in the interlocutory order (see paragraph 11 above). The Court of Appeal detached that part of the appeal from the part concerning parental authority (see paragraphs 18 and 23 above), since both parts had to be challenged by distinct remedies and different procedural provisions were applicable. The appeal by the applicants in application no. 68125\/14 was declared inadmissible by the Court of Appeal on 4 June 2014 for being belated. The appeal by the applicants in application no.72204\/14 was declared partly inadmissible and partly unfounded by the Court of Appeal on 13 August 2014."],"71":["6.The applicants in application no. 11308\/16 (Tlapak) are a mother and father. Their son J. was born on 15 January 2012. The applicants in application no.11344\/16 (Pingen) are also a mother and father. Their two daughters A. and B. were born on 7 October 2009 and their son G. was born on 23 May 2013. All the applicants are members of the Twelve Tribes Church (Zw\u00f6lf St\u00e4mme) who lived in a community of around twenty members of the church in W\u00f6rnitz, Germany. A second community with around 100members was located in the nearby village of Klosterzimmern.","A.Background to the case","7.In 2012 the press reported about the Twelve Tribes Church and its position on the right of parents to apply corporal punishment, especially caning. Furthermore, statements by a former member of the community were published, confirming that children had been punished with rods.","8.In 2012 and 2013 the local youth offices (Jugendamt) visited both communities and its spokespersons were invited to a meeting at the Bavarian Ministry of Education. Corporal punishment and the issue of compulsory schooling were discussed at the meeting.","9.On 16 August 2013 the Klosterzimmern youth office and the N\u00f6rdlingen Family Court received video footage from a television reporter showing ten different instances of corporal punishment in the community in Klosterzimmern. The footage, filmed with a hidden camera, showed the caning of various children between the ages of three and twelve. According to the television reporter, the person who carried out the punishment was not, in most cases, a parent of the child being punished.","10.On 3 September 2013 the Ansbach Family Court, upon an application by the competent youth office, made an interlocutory order regarding all children in the Twelve Tribes community in W\u00f6rnitz, including the applicants\u2019 children. The court withdrew the applicants\u2019 rights to decide where their children should live (Aufenthaltsbestimmungsrecht), and to take decisions regarding their health (Gesundheitsf\u00fcrsorge), schooling and professional training, and transferred those rights to the youth office. The court based its decision on the above-mentioned video footage and the testimony of the television reporter and six former members of the Twelve Tribes community. It concluded that there was a reasonable likelihood that the children would be subjected to corporal punishment in the form of caning and so-called \u201crestraining\u201d, involving holding a child\u2019s limbs tight and pressing his or her head down until the child had no strength left to cry and struggle.","11.On 5 September 2013 the youth office took the community\u2019s children into care. They were supported by around thirty police officers, who, at the same time, searched the community\u2019s premises and found a wooden rod.","12.The applicants\u2019 children were subsequently examined but no physical signs of abuse or beating were revealed.","13.J. Tlapak was subsequently placed in a foster family. As he was still being breastfed, his mother was permitted daily visits to give him milk.","14.A. and B. Pingen were also placed in a foster family. Their aunt\u2019s family was approved as fosterers and they were then placed with them.","15.Since G. Pingen was then only one year and four months old and was also still being breastfed, he and his mother were placed together in a foster family.","1.Application no. 11308\/16 (Tlapak)","16.On 13 September 2013 the Ansbach Family Court heard the applicants and on 23 September 2013 it upheld its order of 3 September 2013 in an interim decision.","17.On 2 December 2013 the Nuremberg Court of Appeal dismissed an appeal by the applicants against the interim decision of the Family Court in essence, but set the decision aside to the extent it concerned the parental right to decide on schooling matters. Given the son\u2019s age, the court held that there was no need to decide on that issue in the interim proceedings.","18.In 2015 the applicants moved \u2013 without their son J. \u2013 to the Czech Republic, where they have been living since.","2.Application no. 11344\/16 (Pingen)","19.The Ansbach Family Court heard the applicants on 13 September 2013 and the applicants\u2019 daughters on 18 September 2013 in the foster family\u2019s home. The daughters reported that their parents had hit them on the hand with a rod as a form of corporal punishment. On 23 September 2013 the Family Court upheld its order of 3 September 2013.","20.On 2 December 2013, upon an appeal by the applicants, the Nuremberg Court of Appeal reversed the decision to withdraw the right to decide where G. Pingen should live. The earlier decision on the daughters was upheld, with the proviso that the parents were to retain the right to take decisions on school matters and on their daughters\u2019 choice of education or training and career.","21.The son was subsequently returned to the applicants, who moved first to Belgium and later to the Czech Republic, where they have been living since. The applicants\u2019 daughters are still in the care of the foster family (see paragraph 14 above).","B.The main proceedings","1.Application no. 11308\/16 (Tlapak)","22.Upon an application made by the applicants on 9 September 2013 the Family Court initiated the main proceedings and, on 24 September 2013, it commissioned an expert opinion.","23.After interviewing the applicants and observing a meeting between them and their son, the expert submitted a written opinion on 19 December 2013. He found that even though the applicants had a loving attitude towards their son, they considered corporal punishment with objects as an appropriate and necessary parenting method. Owing to their willingness to apply that method to their son, there was a likelihood bordering on certainty that if he remained with them, they would apply corporal punishment. This, the expert concluded, would significantly jeopardise the son\u2019s development and result in psychological problems. Overall, it was in the child\u2019s best interests to place him away from his parents to protect him from the applicants\u2019 parenting methods, which were dangerous for the child. Since their parenting was based on religious convictions, they were unwilling to abandon the parenting method of corporal punishment and lacked the will to cooperate with the authorities or accept help. Consequently, less intrusive measures could not be considered sufficient.","24.Subsequently the applicants submitted a privately commissioned expert opinion, in which the court-appointed expert\u2019s approach and methodology was criticised. In addition, the applicants retrospectively withdrew their consent to being assessed by the court-appointed expert and to an assessment of their son.","25.In separate proceedings the Family Court, on 1 August 2014, issued an interim decision in which it withdrew the applicants\u2019 parental right to decide on the son\u2019s assessment by the court-appointed expert and consented to such a measure.","26.On 4 August 2014, the Family Court forwarded the privately commissioned expert opinion to the court-appointed expert, who responded to the criticism and gave details of his methodology in a letter of 15 August 2014.","27.In a hearing on 19 September 2014 the court proposed an agreement between the applicants and the youth office, with the aim of returning their son to them. However, the applicants and the youth office did not agree on a settlement owing in particular to a disagreement about the son attending a state school and play therapy. Moreover, there were concerns about the parents attending a development course and assisting with medical measures. The youth office considered those aspects as essential and declined the partial settlement proposed by the applicants.","28.After hearing the applicants\u2019 son in the home of the foster family where he had been placed on 21 October 2014, the Family Court decided on 22 October 2014 to withdraw the applicants\u2019 right to decide where their son should live and to take decisions regarding his health and schooling, and transferred those rights to the youth office, which had been appointed as supplementary guardian.","29.The Family Court stated that it would be very detrimental to the best interests of the child if the son continued to live with the applicants owing to their parenting methods. Based, in particular, on the court\u2011commissioned expert opinion and the statements by the applicants during the court proceedings, the court concluded that there was a high, concrete probability that the son would be subjected to corporal punishment using physical objects over the course of several years. According to the expert, this would give rise to an expectation that the applicants\u2019 son would suffer from psychological issues. Even though separating the parents and the child constituted a severe interference with their right to a family under Article 6 of the Basic Law (see paragraph 53 below) and may possibly have negative consequences for the child, that interference was justified in the case at hand. Corporal punishment of the kind at issue was particularly degrading for a child. It was not only banned by Article 1631 \u00a7 2 of the Civil Code (see paragraph 54 below) but also constituted an interference with a child\u2019s human dignity, protected under Article 1 of the Basic Law (see paragraph50 below), and a child\u2019s right to physical integrity, protected under Article 2 of the Basic Law (see paragraph 51 below).","30.The court also held that the risk to the child could not be averted using less drastic measures. Throughout the course of the proceedings the applicants had unreservedly advocated their parenting style and had refused to accept the opinion that the type of corporal punishment they endorsed was covered by the ban on violence under Article 1631 of the Civil Code. The physical effects of such punishment were only short-lived, which was why it would only be possible for the youth office to observe any such effects if it made unannounced visits and the child had \u2013 by chance \u2013 been punished immediately prior to such a visit. According to the expert\u2019s explanations, the psychological consequences could, by contrast, only be determined after a longer period of time and they were difficult to discern at first glance. Although the applicants had most recently indicated to the court that they were ready to refrain from corporal punishment in the future, the court regarded such statements as not being compelling since they had not provided any grounds. The Family Court, nonetheless, pointed out that the applicants were free to reach an out-of-court settlement with the youth office concerning the conditions under which the son could be returned after the proceedings had been concluded. However, the previous settlement proposal had been refused because the applicants had not been willing to agree to have their son take part in play therapy and attend a state school.","31.In regard to the fact that the applicants had withdrawn their consent to being examined by the court-appointed expert after the expert opinion had already been submitted, both for themselves and their child, the court held that this did not render the expert\u2019s report unusable in the proceedings. While the court had given its own consent in place of the parents\u2019 as far as it concerned the son, the parents\u2019 actions on that point could not, in light of the state\u2019s obligation to protect children under constitutional law, hinder the use of the expert opinion in the proceedings. Allowing parents to reject expert opinions they disagreed with by retrospectively withdrawing consent to an examination would prevent any effective protection of children in family court proceedings.","32.The applicants subsequently appealed against the decision of the Family Court. The Court of Appeal, after hearing the applicants, their son, the son\u2019s guardian ad litem, a representative of the youth office, the court\u2011appointed expert and the expert commissioned by the applicants, dismissed the applicants\u2019 appeal on 26 May 2015.","33.In a decision of thirty-nine pages, the Court of Appeal considered in detail the applicants\u2019 statements concerning corporal punishment, publications by the Twelve Tribes Church, the expert\u2019s opinion and the criticism of the report by the privately commissioned expert. Overall it confirmed the decision and reasoning of the Family Court of 22 October 2014. The court emphasised that not all individual violations of the right to a non-violent upbringing under Article 1631 \u00a7 2 of the Civil Code (see paragraph 54 below) could justify a withdrawal of parental authority. However, there was a fear in the applicants\u2019 case that systematic caning with a rod would be the reaction whenever the child was deemed to have broken a rule. There was moreover already a threat to the child\u2019s best interests as he would live in constant fear of suffering physical pain and experiencing the resulting humiliation as psychological suffering. Beatings as such, the court held, constituted child abuse and misuse of parental authority. It was of no relevance whether or not lasting physical injuries occurred.","34.The court further held that on account of their religious beliefs, the applicants were convinced that their child-rearing methods were legitimate. Accordingly, they were neither willing nor able to avert the danger to their child and the recent contradictory statements they had made could not be considered as credible.","35.On 16 August 2015 the Federal Constitutional Court refused to admit a constitutional complaint by the applicants (1 BvR 1467\/15), without providing reasons.","2.Application no. 11344\/16 (Pingen)","36.The Family Court, upon an application by the applicants dated 9September 2013, initiated the main proceedings and on 24 September 2013 commissioned an expert opinion.","37.After interviewing the applicants, their two daughters and the children\u2019s foster parents, and observing a meeting between the applicants and their children, the expert submitted a written opinion on 23 December 2013. He stated that the applicants and their daughters had confirmed that the parents had used a rod as corporal punishment on the daughters and that even though the applicants had a loving attitude towards their children, they considered corporal punishment using physical objects as an appropriate and necessary parenting method. Given the past incidents of corporal punishment and the applicants\u2019 general willingness to use that method on their children, it was virtually certain that they would subject them to corporal punishment again. The expert concluded that the applicants\u2019 rigid, authoritarian parenting style and their conviction that children should be raised to obey their parents by means of corporal punishment using physical objects from the age of three conflicted significantly with the best interests of the children and was also detrimental to the unimpaired development of their personality. He expected that such methods would likely result in psychological issues. Overall, it was in the best interests of the children to place them away from their parents. Since the applicants\u2019 parenting style was based on religious convictions, they were unwilling to abandon the parenting method of corporal punishment and were not fully prepared to cooperate with the authorities and accept help. Consequently, measures that infringed on their rights to a lesser degree could not be considered sufficient.","38.Subsequently, the applicants submitted a privately commissioned expert opinion, in which the court-appointed expert\u2019s approach and methodology was criticised. In addition, the applicants retrospectively withdrew their consent to being assessed by the court-appointed expert and to the assessment of their three children.","39.In separate proceedings the Family Court, on 1 September 2014, issued an interim decision in which it withdrew the applicants\u2019 parental right to decide on the children being assessed by the court-appointed expert and consented to the psychological examination. It also forwarded the privately commissioned expert opinion to the court-appointed expert, who responded to the criticism in it and gave details of his methodology in a letter of 1October 2014.","40.In a hearing of 29 September 2014 the parties discussed an agreement between the applicants and the youth office, with the aim of returning the daughters to the applicants and protecting all three children. However, the applicants and the youth office could not agree on a settlement as there was disagreement in particular on the children attending a state school and therapy. Moreover, the applicants were unwilling to remain in Germany under the supervision of the youth office for an extended period of time.","41.After hearing the applicants and their daughters several times, including in parallel proceedings, the Family Court decided on 21 October 2014 to withdraw the applicants\u2019 right to decide where all three children should live and to take decisions regarding the children\u2019s health and schooling, and transferred those rights to the youth office, which had been appointed as supplementary guardian. Additionally, the court ordered the applicants\u2019 son to be handed over to the youth office.","42.In its reasoning, which was similar to that in application no.11308\/14 (see paragraphs 29-31 above), the Family Court held that the applicants\u2019 parenting methods meant that it would be very detrimental to the best interests of all three children to continue to live with their parents. The court emphasised that the aim of Article 1666 of the Civil Code (see paragraph 55 below) was not to penalise past child abuse or views on parenting that were in contradiction to Article 1631 \u00a7 2 of the Civil Code (see paragraph 54 below), but to prevent imminent threats to the best interests of children. Based, in particular, on the opinion by the court\u2011appointed expert and the statements by the applicants and their children, the court concluded that there was a high, concrete probability that the children would be subjected to systematic corporal punishment using physical objects, which would in turn be detrimental to the best interests of the children in physical and psychological terms. The severe interference with the applicants\u2019 right to a family under Article 6 of the Basic Law (see paragraph 53 below) by separating them from their children was nonetheless not only justified but also proportionate since the risk to the children could not be averted using milder means. Besides the problem of detecting corporal punishment through unannounced visits by the youth office (see paragraph 30 above), the court also pointed out that the applicants had consistently, over the course of the proceedings, shown a lack of willingness to cooperate with the youth office and had refused to accept state schools, both of which the court found necessary to prevent degrading corporal punishment and ensure the children\u2019s autonomous development. Furthermore, the court held that it could be expected that the applicants would leave Germany if their children were returned to them and thereby elude any orderly monitoring and supervision by the competent youth office. Lastly, the court concluded that the withdrawal of the consent to being examined by the court-appointed expert did not hinder the use of the expert opinion in the proceedings (see paragraph 31 above).","43.The applicants subsequently appealed against the decision of the Family Court and applied for an interim measure to suspend the order to hand their son over to the youth office.","44.On 15 December 2014 the Court of Appeal provisionally suspended enforcement of the Family Court\u2019s order on the son. The court held that given his age, one year and six months, and the fact that he was still being breastfed, enforcement would constitute an especially serious interference with the applicants\u2019 rights. In addition, the son\u2019s young age meant there was no imminent and sufficient risk of him being subjected to corporal punishment.","45.During the appeal proceedings the applicants proposed a settlement to the Court of Appeal. The applicants would temporarily return to Germany and for two months they would gradually be reunited with their two daughters under the supervision of the youth office. At the end of that period, if the family reunification had been successful, the Family Court\u2019s decision would be set aside and the whole family would move to the Czech Republic.","46.On 26 March 2015 the Court of Appeal conducted an oral hearing during which it heard, inter alia, the applicants, their daughters, the court\u2011appointed expert, the expert commissioned by the applicants and the children\u2019s guardian ad litem. The applicants\u2019 daughters stated that, even though they would like to see their parents more often, they would prefer living with their foster parents. Moreover, a representative of the youth office indicated during the hearing that the applicants had not distanced themselves from their previous parenting methods in a credible way and that therefore the youth office was not able to agree to the settlement they had proposed.","47.On 10 June 2015 the Court of Appeal, in a detailed decision of forty\u2011five pages, rejected the applicants\u2019 appeal and confirmed the reasoning of the Family Court. The court held that corporal punishment with a rod, prohibited by Article 1631 \u00a7 2 of the Civil Code (see paragraph 54 below), constituted the physical abuse of children and if applied regularly and repeatedly the competent authorities were obliged under Article 1666 of the Civil Code (see paragraph 55 below) to intervene and take the necessary measures in the best interests of the children. The applicants\u2019 daughters had consistently stated during the proceedings that they had been caned on a daily basis and the applicants themselves had confirmed that they had \u201cdisciplined\u201d their daughters with a rod. The court was convinced that the applicants would continue to use corporal punishment on their children in the future since that parenting method was already firmly established and was based on religious beliefs from which the applicants had not fundamentally distanced themselves. Their statements had shown that they, in essence, continued to approve of corporal punishment and considered it an appropriate parenting method. The fact that the applicants had recently acknowledged that their children had a right to a non-violent upbringing did not mean they had changed their attitudes to parenting in a permanent way; rather, that had only served a procedural purpose, namely to have their daughters returned to them as soon as possible. In the court\u2019s opinion, the applicants were only prepared to refrain temporarily from corporal punishment. The court was therefore unable to find that the applicants had changed their way of parenting and distanced themselves from corporal punishment in a manner which the court could regard as credible. Consequently, there was an imminent danger of systematic corporal punishment if the two daughters were returned to their parents. The danger also existed for the applicants\u2019 son as there was no fixed age when the applicants started \u201cdisciplining\u201d their children as they rather considered it a tool to enforce their parental authority. As the two-year-old son was expected to start his \u201cphase of defiance\u201d soon, it also had to be expected that the applicants would respond with caning.","48.The Court of Appeal also confirmed that the applicants\u2019 withdrawal of their consent to being assessed did not prevent the courts from using the expert opinion as evidence and that there were no less severe measures available to avert the imminent detriment to the best interests of the children resulting from their parents\u2019 use of corporal punishment. In that regard, the court, inter alia, pointed to the fact that the applicants had already left Germany with their son and refused to return to live there permanently. The competent authorities would therefore from the very outset be unable to provide sufficient support to the family or effectively monitor the applicants\u2019 parenting methods.","49.On 16 August 2015 the Federal Constitutional Court refused to admit a constitutional complaint by the applicants (1 BvR 1589\/15), without providing reasons."],"72":["5.The applicant was born in 1973 and lives in Varna.","6.The applicant and his wife divorced on 21 August 2006 pursuant to a court-approved agreement between the two of them. Under the terms of this agreement, the applicant undertook to pay child support to the two children born during the marriage and agreed to his wife\u2019s keeping his family name after the divorce.","7.Subsequently, the applicant learned that his former wife had conceived their second child, born in 2003, as a result of a relationship with another man during her marriage to the applicant. The applicant underwent a DNA test to determine whether he was the father of the younger child. The DNA test \u2012 the result of which the applicant received on 15 January 2007 \u2012 established that he was not the biological father of the second child. The results of this DNA test were never considered by a court.","8.Shortly thereafter, in February 2007, the applicant brought a civil claim in court, seeking to contest his paternity of the child in question. On 1March 2007 the Varna Regional Court dismissed his request, finding that it was time-barred due to the expiry \u2013 in 2004 \u2013 of the year-long limitation period counting from the child\u2019s birth or from learning thereof (see the section \u201cRelevant domestic law and practice\u201d below\u201d). This finding was confirmed by two higher judicial instances, the final decision being pronounced by the Supreme Court of Cassation on 19 September 2007.","9.The applicant brought subsequent proceedings in which he sought to stop paying child support to the second child. On 20 May 2008 his claim was rejected by the Varna District Court, which found that it had not been proven that the applicant was not the child\u2019s father, given that he had not rebutted the legal presumption under Article 32 (1) of the Family Code 1985 (\u201cthe 1985 Code\u201d)."],"73":["11.The applicant was born in 1953. He is currently detained in Istanbul.","A.The applicant\u2019s professional career","12.The applicant is an economics professor and a journalist in Turkey. Prior to the attempted military coup of 15 July 2016, he presented a political discussion programme on Can Erzincan TV, a television channel that was closed down following the adoption of Legislative Decree no. 668, issued on 27 July 2016 in connection with the state of emergency (see paragraphs14-18 below).","13.In the years leading up to the attempted coup, the applicant had been known for his critical views on the serving government\u2019s policies.","B.The attempted coup of 15 July 2016 and the declaration of a state of emergency","14.During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the \u201cPeace at Home Council\u201d attempted to carry out a military coup aimed at overthrowing the democratically elected parliament, government and President of Turkey.","15.During the attempted coup, soldiers under the instigators\u2019 control bombarded several strategic State buildings, including the parliament building and the presidential compound, attacked the hotel where the President was staying, held the Chief of General Staff hostage, attacked television channels and fired shots at demonstrators. During the night of violence, more than 300 people were killed and more than 2,500 were injured.","16.The day after the attempted military coup, the national authorities blamed the network linked to Fetullah G\u00fclen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of a terrorist organisation known as FET\u00d6\/PDY (\u201cG\u00fclenist Terror Organisation\/Parallel State Structure\u201d). Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in relation to suspected members of that organisation.","17.On 20 July 2016 the government declared a state of emergency for a period of three months as from 21 July 2016; the state of emergency was subsequently extended for further periods of three months by the Council of Ministers, chaired by the President, most recently with effect from 19January 2018.","18.On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article15.","C.The applicant\u2019s arrest and pre-trial detention","19.On an unspecified date, the Istanbul public prosecutor initiated a criminal investigation in respect of suspected members of FET\u00d6\/PDY. In addition, on the basis of Article3 \u00a71(l) of Legislative Decree no. 668, he ordered restrictions on the right of the suspects\u2019 lawyers to inspect the contents of the investigation file or to obtain copies of documents in the file. In the course of the criminal investigation, the applicant was arrested at his home on 10 September 2016 and taken into police custody on suspicion of having links to the media wing of the organisation in question.","20.On the same day, the applicant\u2019s home was searched by police officers without his lawyers being present, as they had been prevented from attending the search on account of the state of emergency.","21.Later that day, the applicant lodged an objection challenging his detention in police custody and seeking his release. On 12September 2016 the Istanbul magistrate\u2019s court dismissed the objection.","22.The applicant remained in police custody for twelve days at the Istanbul police anti-terrorist branch. During his first five days in custody, he was not permitted to speak to his lawyers.","23.On 20 September 2016, while at the police station, the applicant stated that he was asserting his right to remain silent.","24.On 21 September 2016 he was questioned by the Istanbul public prosecutor on suspicion of attempting to overthrow the government or to prevent it from discharging its duties (Article312 of the Criminal Code \u2013 (\u201cthe CC\u201d) and of being a member of the FET\u00d6\/PDY terrorist organisation (Article 314 of the CC).","25.The records of the questioning indicate that the applicant was accused of: (i) attempting to discredit an investigation into an alleged coup (the \u201cBalyoz\u201d case); (ii) making certain statements serving the interests of FET\u00d6\/PDY, in particular during a television programme broadcast on Can Erzincan TV on 14 July 2016, in the course of which, according to the public prosecutor, the terrorist organisation had sought to prepare the public for a military coup; (iii) holding an account with Bank Asya, a bank with alleged links to FET\u00d6\/PDY; (iv) avoiding a criminal investigation through the assistance of members of the national police suspected of belonging to FET\u00d6\/PDY; (v) visiting Fetullah G\u00fclen at his home in Pennsylvania and kissing his hand; and (vi) having in his possession a United States one-dollar bill with an \u201cF\u201d serial number (denoting the initial of the forename Fetullah). In reply, the applicant stated that he did not know any Turkish army officers and had no links to the attempted coup. The comments he had made during the television programme in question had been intended as warnings to prevent future military coups. Regarding the bank account, some years previously he had taught for three months at a private university, which had asked him to open an account at the bank in question for payment of his wages. He added that he had not been aware of having avoided a criminal investigation through the assistance of certain suspected members of an illegal organisation, and that this was a matter to be taken up with the police officers allegedly responsible. Furthermore, he had visited Fetullah G\u00fclen as a member of a group of journalists, for purely professional reasons linked to his role as a journalist, and had never kissed anyone\u2019s hand. Lastly, the one-dollar bill was of no special significance.","26.On 22 September 2016 the applicant appeared before the Istanbul 10th Magistrate\u2019s Court and was questioned about his alleged acts and the accusations against him. At the end of the hearing, the magistrate ordered the applicant\u2019s pre-trial detention, having taken the following factors into consideration: the strong suspicions against him; the nature of the alleged offences and the fact that they were among the offences listed in Article100 \u00a73 of the Code of Criminal Procedure (\u201cthe CCP\u201d) \u2013the so-called \u201ccatalogue offences\u201d, for which a suspect\u2019s pre-trial detention was deemed justified in the event of strong suspicion; the risk of absconding; and the risk that alternative measures to detention might be insufficient to ensure the applicant\u2019s participation in the criminal proceedings. In the reasons for his decision, the magistrate noted the following: during the attempted military coup, members of FET\u00d6\/PDY had used heavy weapons; since February 2012 the organisation in question had been explicitly waging a campaign against the political authorities; the members of FET\u00d6\/PDY had attempted to force the government\u2019s resignation by discrediting it in public opinion, especially through judicial operations carried out between 17 and 25December 2013; and the organisation had taken control of several media outlets with a view to achieving its aim. The magistrate further noted that during the television broadcast on 14 July 2016, the applicant had said: \u201cWithin the State of the Republic of Turkey, there is probably another structure, whose components outside Turkey are closely observing and documenting all these events. It is not clear exactly when [it] will pull its hand out of the bag or how [it] will do so\u201d (\u201cT\u00fcrkiye Devleti i\u00e7inde de muhtemelen b\u00fct\u00fcn bu geli\u015fmeleri d\u0131\u015f d\u00fcnyada daha fazla belgeleyen, izleyen bir ba\u015fka da yap\u0131 var. Onun ne zaman torbadan elini \u00e7\u0131karaca\u011f\u0131, nas\u0131l elini \u00e7\u0131karaca\u011f\u0131 belli de\u011fil\u201d). The magistrate concluded that there were suspicions that the contents of the applicant\u2019s statements about the political authorities had been intended to prepare the ground for a military coup and were not covered by freedom of the press.","27.On 28 September 2016 the applicant lodged an objection against the order for his pre-trial detention. In a decision of 10 October 2016 the Istanbul 2nd Magistrate\u2019s Court dismissed the objection.","28.On 14 October 2016 the applicant lodged a fresh application for his release. In a decision of 26 October 2016 the Istanbul 3rd Magistrate\u2019s Court rejected the application.","29.On various dates the applicant lodged further applications seeking his release pending trial. According to the documents produced by the parties, the applications were all rejected by the competent magistrates\u2019 courts, for example on 10 and 24 November 2016 and 8 December 2016.","30.On 14 April 2017 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court in respect of several individuals, including the applicant, in particular accusing them, under Articles 309, 311 and 312 in conjunction with Article 220\u00a76 of the CC, of attempting to overthrow the constitutional order, the Turkish Grand National Assembly and the government by force and violence, and of committing offences on behalf of a terrorist organisation without being members of it. The public prosecutor presented the following items of evidence against the applicant: two articles written by him; his comments during the television broadcast on 14 July 2016; the fact that he had an account with Bank Asya; and the seizure at his home of a United States one-dollar bill with an \u201cF\u201d serial number. He sought the imposition of three aggravated life sentences and a sentence of up to fifteen years\u2019 imprisonment on the applicant.","31.On an unspecified date, the public prosecutor filed his submissions on the merits (esas hakk\u0131nda m\u00fctalaa). He sought the applicant\u2019s conviction for the offences with which he was charged. Besides the evidence he had already submitted when the bill of indictment had been filed, the public prosecutor also produced messages sent by other suspected members of FET\u00d6\/PDY via ByLock, an encrypted messaging service allegedly used by members of that organisation.","32.During the criminal proceedings, the applicant denied having committed any criminal offence.","33.In a summary judgment of 16 February 2018 the Istanbul 26th Assize Court sentenced the applicant to aggravated life imprisonment, in accordance with Article 309 of the CC, for attempting to overthrow the constitutional order. The criminal proceedings are still ongoing in the national courts.","D.Individual application to the Constitutional Court","34.On 8 November 2016 the applicant lodged an individual application with the Constitutional Court. He complained that he had been placed in pre-trial detention on account of his articles and statements and alleged that this infringed his right to liberty and security and his right to freedom of expression and of the press. He also submitted that he had been arrested and detained for reasons other than those provided for by the Constitution. In addition, he complained that his detention in police custody had been unlawful and excessively lengthy, that he had had no access to the investigation file in order to challenge his pre-trial detention, that the magistrates ordering his detention had not been independent or impartial, that no hearings had been held following his applications challenging his continued pre-trial detention, and that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment.","35.On 11 January 2018 the Constitutional Court gave a judgment (no.2016\/23672) in which it held, by eleven votes to six, that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press.","36.With regard to the applicant\u2019s complaint that his pre-trial detention was unlawful, the Constitutional Court noted firstly that the evidence forming the basis for his detention had included: (i) an article entitled \u201cThe meaning of Sledgehammer\u201d (\u201cBalyoz\u2019un Anlam\u0131\u201d), published in the Star newspaper in 2010; (ii) his statements during the television programme broadcast on Can Erzincan TV on 14 July 2016; and (iii) an article entitled \u201cTurbulence\u201d (\u201cT\u00fcrb\u00fclans\u201d), published on his own website on 20 July 2016. After examining the substance of these items of evidence, the Constitutional Court held that the investigating authorities had been unable to demonstrate any factual basis that might indicate that the applicant had been acting in accordance with the aims of FET\u00d6\/PDY or with the purpose of preparing the ground for a possible military coup. The Constitutional Court observed that, as well as having published the above-mentioned articles and made the statements in question, the applicant was accused of holding an account with Bank Asya, having avoided a criminal investigation through the connivance of members of the national police suspected of belonging to FET\u00d6\/PDY, and having in his possession a United States one-dollar bill with an \u201cF\u201d serial number. Addressing those allegations, the Constitutional Court held, having regard to the applicant\u2019s testimony and line of defence, that no specific facts had been established that could refute his explanations, which were \u201cconsistent with the normal course of life\u201d. Similarly, regarding the contents of the messages exchanged by other individuals via ByLock, the Constitutional Court held that the messages could not in themselves be regarded as significant indications that the applicant had committed an offence. Accordingly, it concluded that \u201cstrong evidence that an offence had been committed\u201d had not been sufficiently established in the applicant\u2019s case. Next, the Constitutional Court examined whether there had been a violation of the right to liberty and security in the light of Article 15 of the Constitution (providing for the suspension of the exercise of fundamental rights and freedoms in the event of war, general mobilisation, a state of siege or a state of emergency). On this point, it noted firstly that in a state of emergency, the Constitution provided for the possibility of taking measures derogating from the guarantees set forth in Article 19, to the extent required by the situation. It observed, however, that if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed an offence, the guarantees of the right to liberty and security would be meaningless. Accordingly, it held that the applicant\u2019s pre-trial detention was disproportionate to the strict exigencies of the situation and that his right to liberty and security, as safeguarded by Article 19 \u00a7 3 of the Constitution, had been breached.","37.However, having regard to the length of the applicant\u2019s detention and the documents available to it, the Constitutional Court held that his complaint that he had been detained for political purposes, on grounds other than those provided for by the Constitution, lacked a sufficient basis.","38.With regard to the complaint concerning freedom of expression and of the press, the Constitutional Court observed that the applicant\u2019s initial and continued pre-trial detention on account of his articles and statements amounted to interference with the exercise of that right. Taking into account his arguments regarding the lawfulness of his pre-trial detention, the Constitutional Court held that such a measure, which had serious consequences since it resulted in deprivation of liberty, could not be regarded as a necessary and proportionate interference in a democratic society. It further noted that it could not be clearly established from the reasons given for ordering and extending the applicant\u2019s pre-trial detention whether the measure met a pressing social need or why it was necessary. Lastly, it found that it was clear that the applicant\u2019s pre-trial detention could have a chilling effect on freedom of expression and of the press, in so far as it had not been based on any concrete evidence other than his articles and statements (see paragraph 235 of the Constitutional Court\u2019s judgment). Regarding the application of Article 15 of the Constitution, it referred to its findings concerning the lawfulness of his pre-trial detention (as set out in paragraphs 155-57 of its judgment \u2013 see paragraph 36 above) and held that there had also been a violation of freedom of expression and freedom of the press as enshrined in Articles 26 and 28 of the Constitution.","39.With regard to the complaints concerning the lawfulness and duration of the applicant\u2019s detention in police custody, the Constitutional Court held that he should have brought an action under Article 141 \u00a7 1(a) of the CCP but had refrained from doing so. Furthermore, it noted that there was no information in the application or the appended material as to whether the applicant had lodged an objection under Article 91 \u00a7 5 of the CCP against his detention in police custody. Accordingly, it declared these complaints inadmissible for failure to exhaust the appropriate remedies.","40.As to the complaint of a lack of independence and impartiality on the part of the magistrates who had ordered the applicant\u2019s pre-trial detention, the Constitutional Court dismissed it as being manifestly ill-founded, on the grounds that the magistrates were appointed by the High Council of Judges and Prosecutors and were entitled to the same constitutional safeguards as other judges.","41.Concerning the applicant\u2019s complaint that he had had no access to the investigation file, the Constitutional Court held that he had had sufficient means available to prepare his defence to the charges against him and challenge his pre-trial detention, in view of the contents of the detailed questions put to him during questioning by the public prosecutor and the magistrate, and the overall duration of the restriction on access to the case file. Accordingly, it declared this complaint inadmissible as being manifestly ill-founded.","42.With regard to the complaint that no hearing had been held during the examination of the applicant\u2019s applications challenging his pre-trial detention, the Constitutional Court found that there was no obligation to hold a hearing on each and every objection to pre-trial detention orders and their extension, and that where a person had been able to appear before the first-instance court considering the issue of detention, the fact that there was no hearing on a subsequent appeal did not in itself contravene the Constitution since it did not breach the principle of equality of arms. The Constitutional Court noted that the applicant and his lawyer had been present at the hearing on 22September 2016, following which the applicant had been placed in pre-trial detention. It observed that he had lodged an objection against his detention on 28 September 2016, that the objection had been dismissed on 10 October 2016 and that eighteen days had thus elapsed between his previous appearance in court and the dismissal of his objection. Taking this period into account, the Constitutional Court considered that there had been no obligation to hold a hearing during the examination of his objection, and accordingly declared this complaint likewise inadmissible as being manifestly ill-founded.","43.Lastly, with regard to the applicant\u2019s complaint that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment, the Constitutional Court observed that he had not raised this issue with the enforcement judge. Accordingly, it declared the complaint inadmissible for failure to exhaust the appropriate remedies.","44.Having regard to its findings of violations, the Constitutional Court held that the applicant was to be awarded 20,000 Turkish liras (TRY \u2013 approximately 4,500 euros (EUR)) in respect of non-pecuniary damage and TRY 2,219.50 (approximately EUR 500) in respect of costs and expenses.","45.As the applicant was still in pre-trial detention on the date of delivery of its judgment, the Constitutional Court decided to transmit the judgment to the Istanbul 26th Assize Court so that it could take \u201cthe necessary action\u201d.","E.Reaction of the Istanbul assize courts to the Constitutional Court\u2019s judgment","46.On 11 January 2018 the applicant\u2019s lawyer applied to the Istanbul 26th Assize Court for his client\u2019s release.","47.On the same day, the Istanbul 26th Assize Court rejected the application by two votes to one, on the grounds that it had not yet received official notification of the Constitutional Court\u2019s judgment. It held in addition that the summary judgment submitted by the applicant\u2019s lawyer did not contain any indication by the Constitutional Court of a measure relating to the applicant\u2019s release.","48.In his opinion the dissenting judge stated that, in accordance with Article153 \u00a76 of the Constitution, the Constitutional Court\u2019s judgments were binding on the legislative, executive and judicial organs, the administrative authorities and natural and legal persons. Accordingly, where a violation had been found on account of a judicial decision, the relevant court was required to take the necessary action to redress the effects of the violation, pursuant to section 50(2) of Law no. 6216 on the establishment and rules of procedure of the Constitutional Court (\u201cLaw no. 6216\u201d). In his view, the only way of satisfying this requirement in the applicant\u2019s case was to order his release.","49.On 12 January 2018 the applicant lodged an objection with a view to securing his release, submitting a copy of the Constitutional Court\u2019s judgment of 11 January 2018 as published on the court\u2019s website.","50.In a decision delivered on 15 January 2018 the Istanbul 27th Assize Court, by two votes to one, dismissed the applicant\u2019s objection and ordered the continuation of his pre-trial detention. In reaching that finding, it observed that the Constitutional Court\u2019s judgment had not been published in the Official Gazette as required by Article 153 \u00a7 6 of the Constitution.","51.In his dissenting opinion, the judge in the minority expressed the view that, since the Constitutional Court\u2019s judgments were binding and not subject to appeal, the applicant should be released pending trial without waiting for the judgment in question to be published in the Official Gazette.","52.On 19 January 2018 the Constitutional Court\u2019s judgment on the individual application lodged by the applicant was published in Official Gazette no.20306.","53.On the same day, the Istanbul 26th Assize Court examined of its own motion the question of the applicant\u2019s continued detention. Noting firstly that the examination of the merits of an individual application to the Constitutional Court against a judicial decision entailed determining whether there had been a violation of fundamental rights and what measures would be appropriate to put an end to the violation, and secondly that grounds of appeal on points of law could not be examined by the Constitutional Court in the context of an individual application, it found that the Constitutional Court did not have jurisdiction to assess the evidence in the case file. On that account, the Constitutional Court\u2019s judgment no.2016\/23672 was not in compliance with the law. The Assize Court added that ordering the applicant\u2019s release as an automatic consequence of the judgment in question would run counter to the general principles of law, the independence of the courts, the principle that no authority could give orders or instructions to the courts, and the \u201cnatural judge\u201d principle. Lastly, by two votes to one, it ordered the continuation of the applicant\u2019s pre-trial detention. In so holding, it took the following into account: the evidence before it; the large scale of the attempted military coup; the risk of the applicant\u2019s absconding; the current state of the case file; and the severity of the potential sentence in the event of a conviction.","54.The judge who had voted in favour of the applicant\u2019s release stated in a dissenting opinion that the Constitutional Court\u2019s judgments were binding and that the Assize Court was thus required to comply with judgment no.2016\/23672. He pointed out that the only possible way for it to do so was to order the applicant\u2019s release.","55.On 30 January 2018 the applicant lodged a further individual application with the Constitutional Court. Relying on Articles 5, 6 and 18 of the Convention, he complained mainly that he had been kept in pre-trial detention despite the Constitutional Court\u2019s judgment of 11 January 2018.","81.On 21 July 2016 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation:","\u201cI communicate the following notice of the Government of the Republic of Turkey.","On 15 July 2016, a large-scale coup attempt was staged in the Republic of Turkey to overthrow the democratically-elected government and the constitutional order. This despicable attempt was foiled by the Turkish state and people acting in unity and solidarity. The coup attempt and its aftermath together with other terrorist acts have posed severe dangers to public security and order, amounting to a threat to the life of the nation in the meaning of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms.","The Republic of Turkey is taking the required measures as prescribed by law, in line with the national legislation and its international obligations. In this context, on 20July 2016, the Government of the Republic of Turkey declared a State of Emergency for a duration of three months, in accordance with the Constitution (Article 120) and the Law No. 2935 on State of Emergency (Article 3\/1b). ... The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. Thus, the State of Emergency takes effect as from this date. In this process, measures taken may involve derogation from the obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms, permissible in Article 15 of the Convention.","I would therefore underline that this letter constitutes information for the purposes of Article 15 of the Convention. The Government of the Republic of Turkey shall keep you, Secretary General, fully informed of the measures taken to this effect. The Government shall inform you when the measures have ceased to operate.","...\u201d"],"74":["11.The applicant was born in 1944. He is currently detained in Istanbul.","A.The applicant\u2019s professional career","12.The applicant is a journalist who had been working since 2002 for the daily newspaper Zaman, which was viewed as the principal publication medium of the \u201cG\u00fclenist\u201d network and was closed down following the adoption of Legislative Decree no. 668, issued on 27 July 2016 in connection with the state of emergency (see paragraphs 14-18 below). From 2001 onwards, he also lectured on comparative politics and Turkish political history at a private university in Istanbul.","13.In the years leading up to the attempted military coup of 15 July 2016 the applicant had been known for his critical views on the serving government\u2019s policies.","B.The attempted coup of 15 July 2016 and the declaration of a state of emergency","14.During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the \u201cPeace at Home Council\u201d attempted to carry out a military coup aimed at overthrowing the democratically elected parliament, government and President of Turkey.","15.During the attempted coup, soldiers under the instigators\u2019 control bombarded several strategic State buildings, including the parliament building and the presidential compound, attacked the hotel where the President was staying, held the Chief of General Staff hostage, attacked television channels and fired shots at demonstrators. During the night of violence, more than 300 people were killed and more than 2,500 were injured.","16.The day after the attempted military coup, the national authorities blamed the network linked to Fetullah G\u00fclen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of a terrorist organisation known as FET\u00d6\/PDY (\u201cG\u00fclenist Terror Organisation\/Parallel State Structure\u201d). Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in relation to suspected members of that organisation.","17.On 20 July 2016 the government declared a state of emergency for a period of three months as from 21 July 2016; the state of emergency was subsequently extended for further periods of three months by the Council of Ministers, chaired by the President, most recently with effect from 19January 2018.","18.On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article15.","C.The applicant\u2019s arrest and pre-trial detention","19.On 27 July 2016, in the course of one of the criminal investigations initiated in respect of suspected members of FET\u00d6\/PDY, the applicant was arrested at his home in Istanbul and taken into police custody.","20.On 30 July 2016 the applicant, assisted by his lawyer, was questioned at the Istanbul Security Directorate. During the questioning the applicant denied that he belonged to an illegal organisation. Later that day, the Istanbul public prosecutor sought a judicial order for the applicant\u2019s pre-trial detention on suspicion of belonging to an illegal organisation.","21.On the same day, several editors and columnists of the daily newspaper Zaman, including the applicant, were brought before the Istanbul 4th Magistrate\u2019s Court. The magistrate questioned the applicant about his alleged acts and the accusations against him. The applicant stated that he had joined Zaman in order to be able to express his opinions; that he was in favour of a democratic system corresponding to European standards; that he was a secular person; that he had not been aware of the threat posed by Fetullah G\u00fclen\u2019s movement until after the attempted military coup of 15July 2016; and that he was opposed to any attack on democracy.","22.At the end of the hearing, the magistrate, taking into account the contents of the articles written by the applicant \u2013 and finding that they had promoted the terrorist organisation in question, even after 17 December 2013\u2013 ordered his pre-trial detention. He noted in that connection that although criminal proceedings had been instituted against E.D. (the editor-in-chief of Zaman) before the attempted military coup, the applicant had continued to work for the newspaper and within the organisation\u2019s media structure. In the reasons given for ordering the applicant\u2019s pre-trial detention, the magistrate took the following factors into consideration: the strong suspicions against him; the nature of the alleged offence and the fact that it was among the offences listed in Article 100 \u00a7 3 of the Code of Criminal Procedure (\u201cthe CCP\u201d) \u2013the so-called \u201ccatalogue offences\u201d, for which a suspect\u2019s pre-trial detention was deemed justified in the event of strong suspicion; the risk of absconding; the state of the evidence and the risk of its deterioration; and the risk that alternative measures to detention might be insufficient to ensure the applicant\u2019s participation in the criminal proceedings.","23.On 5 August 2016 the applicant lodged an objection against the order for his pre-trial detention. He argued that there was no justification for detaining him. He also contended that his state of health was incompatible with the conditions in the prison where he was being held. In a decision of 8August 2016 the Istanbul 5th Magistrate\u2019s Court dismissed the applicant\u2019s objection.","24.On 17 October 2016 the applicant lodged a fresh application for his release. In a decision of 19 October 2016 the Istanbul 10th Magistrate\u2019s Court rejected the application. In his decision, the magistrate stated in particular that it was an established fact that in order to prepare the ground for a military coup, the instigators needed to create the perception that the leaders of the country concerned were dictators. In his view, the applicant\u2019s articles accusing the President of Turkey of being a dictator and calling for him to leave office had contributed to propaganda of that kind.","25.On 10 April 2017 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court in respect of several individuals, including the applicant, who were suspected of being part of the FET\u00d6\/PDY media network, in particular accusing them, under Articles 309, 311 and 312 in conjunction with Article 220\u00a76 of the Criminal Code (\u201cthe CC\u201d), of attempting to overthrow the constitutional order, the Turkish Grand National Assembly and the government by force and violence, and of committing offences on behalf of a terrorist organisation without being members of it. The public prosecutor sought the imposition of three aggravated life sentences and a sentence of up to fifteen years\u2019 imprisonment on the suspects, including the applicant. As evidence, he produced six articles written by the applicant in 2013 and 2014.","26.The public prosecutor submitted that the articles by the applicants and other individuals being charged in the same criminal proceedings against leading members of FET\u00d6\/PDY\u2019s media wing could not be regarded as an expression of the authors\u2019 opposition to or criticism of the government. In the applicant\u2019s case, the public prosecutor contended that the expressions he had used had gone beyond the limits of freedom of the press in that they had undermined the rights of the official authorities and endangered social peace and public order. The public prosecutor found that the applicant had not hesitated to call for a possible military coup in his articles and, in short, had discharged functions serving the interests of the terrorist organisation in question.","27.During the criminal proceedings, the applicant denied having committed any criminal offence.","28.The criminal proceedings are currently pending before the Istanbul 13th Assize Court.","D.Individual application to the Constitutional Court","29.On 8 September 2016 the applicant lodged an individual application with the Constitutional Court. He complained that he had been placed in pre-trial detention on account of his articles and alleged that this infringed his right to liberty and security and his right to freedom of expression and of the press. He also contended that his state of health was incompatible with the conditions of his continued detention since he was suffering from benign prostate hyperplasia, hyperlipidaemia, hyperuricemia, a multinodular goitre and sleep apnoea. On that account he asked the Constitutional Court to indicate an interim alternative measure to detention, thus allowing him to be released pending trial.","30.In a decision of 26 October 2016 the Constitutional Court refused to apply an interim measure of that kind. In reaching that decision, it noted firstly that the applicant\u2019s health had been regularly monitored from the start of his pre-trial detention, and that there was a State hospital inside the prison where he was being held. In that connection, it noted that on 4October 2016, following a request he had made to that effect the previous day, the applicant had been examined in prison by a general practitioner and had then been transferred to the urology department of the State hospital, where he had undergone a medical examination on 20 October 2016, and that his next appointment had been scheduled for 22 March 2017. In those circumstances, the Constitutional Court found that keeping the applicant in pre-trial detention did not currently constitute a danger to his life or health. It added that should there be a change in his health or the conditions of his detention, he would be entitled to make a further application for an interim measure to secure his release.","31.On 11 January 2018 the Constitutional Court gave a judgment (no.2016\/16092) in which it held, by eleven votes to six, that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press.","32.With regard to the applicant\u2019s complaint concerning the lawfulness of his pre-trial detention, the Constitutional Court noted firstly that the evidence forming the basis for his detention had included: (i) an article entitled \u201cAs if it were a religious war\u201d (\u201cDin Sava\u015f\u0131ym\u0131\u015f\u201d), published on 21December 2013; (ii) an article entitled \u201cThe President must not remain a spectator\u201d (\u201cCumhurba\u015fkan\u0131 Seyirci Kalamaz\u201d), published on 24 December 2013; (iii) an article entitled \u201cBetween Erdogan and the West\u201d (\u201cErdo\u011fan ile Bat\u0131 Aras\u0131nda\u201d), published on 28 December 2013; (iv) an article entitled \u201cYes, both the crime and the punishment are individual\u201d (\u201cEvet Su\u00e7 da Ceza da \u015eahsidir\u201d), published on 8 February 2014; (v) an article entitled \u201cThis nation is not empty-headed\u201d (\u201cBu Millet Bidon Kafal\u0131 De\u011fildir\u201d), published on 1 March 2014; and (vi) an article entitled \u201cThe solution is a government without Erdo\u011fan\u201d (\u201c\u00c7\u0131kar Yol Erdo\u011fan\u2019s\u0131z H\u00fck\u00fbmet\u201d), published on 29March 2014. After examining the substance of these articles, the Constitutional Court found that they mainly dealt with matters relating to the \u201c17-25 December [2013]\u201d criminal investigations. In them the applicant had set out his opinion that the government members implicated in the criminal investigation in question should be brought to justice and that it was the responsibility of the President and the ruling party\u2019s leaders to take action to that end. He had contended that the government\u2019s reaction to the investigation had been unjust. The Constitutional Court also observed that the applicant had written that if the investigation in question had been carried out on the orders of suspected members of FET\u00d6\/PDY, they too should be the subject of a criminal investigation. However, he had maintained that it was unfair to accuse all members of the G\u00fclenist movement. The Constitutional Court further noted that in the articles in question, the applicant had not argued that the government should be overthrown by force. On the contrary, he had asserted that the ruling party would lose in the next elections. The Constitutional Court also found that the article published one day before the attempted military coup suggested that the applicant was opposed to coups d\u2019\u00e9tat. It held that he had been expressing opinions on a topical issue that were similar to those of the opposition leaders. In the Constitutional Court\u2019s view, the investigating authorities had been unable to demonstrate any factual basis that might indicate that the applicant had been acting in accordance with the aims of FET\u00d6\/PDY. It added that the fact that he had expressed his views in Zaman could not in itself be deemed sufficient to infer that the applicant was aware of that organisation\u2019s goals. Accordingly, it concluded that \u201cstrong evidence that an offence had been committed\u201d had not been sufficiently established in the applicant\u2019s case. Next, the Constitutional Court examined whether there had been a violation of the right to liberty and security in the light of Article15 of the Constitution (providing for the suspension of the exercise of fundamental rights and freedoms in the event of war, general mobilisation, a state of siege or a state of emergency). On this point, it noted firstly that in a state of emergency, the Constitution provided for the possibility of taking measures derogating from the guarantees set forth in Article 19, to the extent required by the situation. It observed, however, that if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed an offence, the guarantees of the right to liberty and security would be meaningless. Accordingly, it held that the applicant\u2019s pre-trial detention was disproportionate to the strict exigencies of the situation and that his right to liberty and security, as safeguarded by Article 19 \u00a7 3 of the Constitution, had been breached.","33.Next, with regard to the complaint concerning freedom of expression and of the press, the Constitutional Court observed that the applicant\u2019s initial and continued pre-trial detention on account of his articles amounted to interference with the exercise of that right. Taking into account his arguments regarding the lawfulness of his pre-trial detention, the Constitutional Court held that such a measure, which had serious consequences since it resulted in deprivation of liberty, could not be regarded as a necessary and proportionate interference in a democratic society. It further noted that it could not be clearly established from the reasons given for ordering and extending the applicant\u2019s pre-trial detention whether the measure met a pressing social need or why it was necessary. Lastly, it found that it was clear that the applicant\u2019s pre-trial detention could have a chilling effect on freedom of expression and of the press, in so far as it had not been based on any concrete evidence other than his articles (see paragraph 140 of the Constitutional Court\u2019s judgment). Regarding the application of Article 15 of the Constitution, it referred to its findings concerning the lawfulness of his pre-trial detention (as set out in paragraphs 108-10 of the Constitutional Court\u2019s judgment \u2013 see paragraph 32 above) and held that there had also been a violation of freedom of expression and freedom of the press as enshrined in Articles 26 and 28 of the Constitution.","34.With regard to the applicant\u2019s complaint that the conditions of his detention were incompatible with respect for human dignity, the Constitutional Court noted that he had access to the treatment required for his condition within the prison where he was being held, and declared this complaint inadmissible as being manifestly ill-founded.","35.The applicant did not submit a claim for compensation in respect of non-pecuniary damage. Accordingly, the Constitutional Court made no award under that head. The applicant claimed an unspecified sum in respect of the pecuniary damage he had allegedly sustained. The Constitutional Court found no causal link between the violation established and the damage alleged on that account and dismissed the claim. However, it held that the applicant was to be awarded 2,219.50 Turkish liras (TRY \u2013 approximately 500 euros (EUR)) in respect of costs and expenses.","36.As the applicant was still in pre-trial detention on the date of delivery of its judgment, the Constitutional Court decided to transmit the judgment to the Istanbul 13th Assize Court so that it could take \u201cthe necessary action\u201d.","E.Reaction of the Istanbul assize courts to the Constitutional Court\u2019s judgment","37.On 11 January 2018 the applicant\u2019s lawyer applied to the Istanbul 13th Assize Court for his client\u2019s release.","38.On the same day, the Istanbul 13th Assize Court rejected the application, on the grounds that it had not yet received official notification of the Constitutional Court\u2019s judgment.","39.On 12 January 2018 the Istanbul 13th Assize Court, having observed that the Constitutional Court\u2019s judgment had been published on its website, examined of its own motion the question of the applicant\u2019s pre-trial detention. Noting firstly that the examination of the merits of an individual application to the Constitutional Court against a judicial decision entailed determining whether there had been a violation of fundamental rights and what measures would be appropriate to put an end to the violation, and secondly that grounds of appeal on points of law could not be examined by the Constitutional Court in the context of an individual application, it found that the Constitutional Court did not have jurisdiction to assess the evidence in the case file. On that account, the Constitutional Court\u2019s judgment no.2016\/16092 was not in compliance with the law and amounted to usurpation of power (g\u00f6rev gasb\u0131). Regarding the effects of the Constitutional Court\u2019s judgments, the Assize Court added that only judgments that were in accordance with the Constitution and the law should be deemed to be final and binding. It noted, moreover, that more extensive reasoning could be given to justify keeping the applicant in pre-trial detention and that the file contained sufficient evidence against him in that regard. However, this would create the risk of prejudging the case (ihsas-\u0131 rey), seeing that a detailed explanation of the reasons justifying continued detention could be seen as an expression of the judges\u2019 opinions before they had determined the merits of the case. Accordingly, the Assize Court held that it was impossible to accept the Constitutional Court\u2019s judgment. Lastly, reiterating that the judgment in question amounted to usurpation of power, it held, by two votes to one, that there was no need for it to give a decision on the applicant\u2019s pre-trial detention.","40.The judge in the minority observed in his dissenting opinion that he agreed with the majority\u2019s conclusion that the Constitutional Court\u2019s judgment was not in compliance with the law. However, noting that the Constitutional Court\u2019s judgments were final and binding on the Assize Court, he expressed the view that the applicant\u2019s release should be ordered.","41.On 12 January 2018 the applicant lodged an objection with a view to securing his release.","42.In a decision of 15 January 2018 the Istanbul 14th Assize Court unanimously dismissed the applicant\u2019s objection, essentially on the same grounds as the 13th Assize Court had done.","43.On 1 February 2018 the applicant lodged a further individual application with the Constitutional Court. Relying on Articles 5, 6 and 18 of the Convention, he complained mainly that he had been kept in pre-trial detention despite the Constitutional Court\u2019s judgment of 11 January 2018.","65.On 21 July 2016 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation:","\u201cI communicate the following notice of the Government of the Republic of Turkey.","On 15 July 2016, a large-scale coup attempt was staged in the Republic of Turkey to overthrow the democratically-elected government and the constitutional order. This despicable attempt was foiled by the Turkish state and people acting in unity and solidarity. The coup attempt and its aftermath together with other terrorist acts have posed severe dangers to public security and order, amounting to a threat to the life of the nation in the meaning of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms.","The Republic of Turkey is taking the required measures as prescribed by law, in line with the national legislation and its international obligations. In this context, on 20July 2016, the Government of the Republic of Turkey declared a State of Emergency for a duration of three months, in accordance with the Constitution (Article 120) and the Law No. 2935 on State of Emergency (Article 3\/1b). ... The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. Thus, the State of Emergency takes effect as from this date. In this process, measures taken may involve derogation from the obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms, permissible in Article 15 of the Convention.","I would therefore underline that this letter constitutes information for the purposes of Article 15 of the Convention. The Government of the Republic of Turkey shall keep you, Secretary General, fully informed of the measures taken to this effect. The Government shall inform you when the measures have ceased to operate.","...\u201d"],"75":["8.The applicant was born in 1944 and lives in Viana do Castelo (Portugal).","A.Background to the case","9.The applicant is a lawyer by training and an auditor by profession. From 1993 onwards, he was no longer authorised to practise as a lawyer. Bya decision of the Bar Council of 24 September 1993, the applicant was suspended from the roll, as the exercise of the profession of lawyer was considered to be incompatible with his practising as an auditor. This decision was published in the Official Gazette in June 2000. When the applicant ceased his activity as an auditor in April 2016, he continued to be suspended from the Bar Council\u2019s roll until at least the end of 2016 as the result of a disciplinary sanction imposed on him for having practised as a lawyer while not being authorised to do so.","10.On 28 February 2008, in the context of a set of civil proceedings in which he was nevertheless acting as a lawyer, the applicant criticised the decisions taken by the judge hearing the case, saying that they were not worthy of a judge and that a judge could not lie or omit the truth in the exercise of his functions. The judge in question filed a complaint for insult with the public prosecutor\u2019s office. It is not clear from the material before the Court on what basis the applicant was acting as a lawyer in the context of those proceedings given the suspension from the roll referred to above.","B.The proceedings at issue","1.The investigation proceedings","11.On 10 February 2010 the public prosecutor\u2019s office at the Baixo\u2011Vouga District Court filed the prosecution\u2019s submissions against the applicant on a charge of insulting a judge. As the applicant had not instructed a lawyer, the public prosecutor\u2019s office appointed counsel on the basis of Article 64 of the Code of Criminal Procedure (CCP) to conduct the applicant\u2019s defence.","12.On 12 March 2010 the applicant lodged a request with the Baixo\u2011Vouga Criminal Investigation Court for the opening of adversarial investigation proceedings (abertura de instru\u00e7\u00e3o; see paragraph 39 below). He also sought leave to replace his officially appointed defence counsel and represent himself.","13.In an order of 7 September 2010 the court agreed to open the investigation but dismissed the request for officially appointed defence counsel to be replaced and for the applicant to conduct his own defence. Itheld that the applicant was not entitled to act in the proceedings without the assistance of defence counsel. The court held that under the provisions of Portuguese law, in particular Article 32 of the Constitution and Articles64 \u00a7 3 and 287 \u00a7 4 of the CCP (see paragraphs 28, 33 and 40 below), the defendant had the right to be represented by independent counsel, a right which would not be made effective if self-representation were to be allowed. Referring to the Constitutional Court\u2019s case-law on the subject, the court found that a defendant who was a lawyer could therefore not act in proceedings as his own counsel.","14.The applicant lodged an appeal with the Coimbra Court of Appeal against the order of 7 September 2010, challenging the decision not to allow him to represent himself in the criminal proceedings.","15.On 21 December 2010 the Coimbra Court of Appeal dismissed the applicant\u2019s appeal. It considered the appeal to be admissible despite the fact that it had been lodged by the applicant in person, as it concerned the very issue whether the applicant, as the defendant, was entitled to conduct his own defence. The Court of Appeal stressed that Portuguese law on criminal procedure did not allow the procedural status of defendant to be combined with that of defence counsel in the same proceedings. It required that the defendant be assisted by defence counsel at the hearing before the investigating judge and at the trial in all cases where the proceedings concerned could give rise to a custodial sentence or a public-safety detention order. This reflected the premise that the accused would be better defended when the defence was conducted by a legal professional trained in advocacy. The latter, unencumbered by the emotional burden weighing on a defendant, could provide a lucid, dispassionate and effective defence. Thelaw on criminal procedure was thus intended not to place limits on the defence\u2019s action, but to support the proper defence of the accused.","16.On 11 May 2012 the Constitutional Court decided that it was not necessary to adjudicate on the constitutional appeal lodged by the applicant in person, in which he had complained about the lower courts\u2019 refusal to grant him leave to represent himself. The Constitutional Court found that the appeal had been neither signed nor endorsed by court-appointed defence counsel. The latter had not replied to the Constitutional Court\u2019s query of 11April 2012 as to whether she endorsed the constitutional appeal signed by the applicant himself.","17.On 20 September 2012 the Baixo-Vouga investigating judge held a hearing (debate instrut\u00f3rio), of which the applicant had been notified in person. The judge had previously refused to adjourn the hearing at the applicant\u2019s request, finding that the Court of Appeal had already given a final ruling on the applicant\u2019s application to represent himself. Theapplicant failed to attend the hearing, at which his court-appointed counsel was present. The investigating judge confirmed the charge against the applicant and referred the case for trial (despacho de pron\u00fancia) before the Baixo-Vouga Criminal Court.","2.The trial proceedings","18.On 12 December 2013 the Baixo-Vouga Criminal Court, following a hearing which the applicant again did not attend but at which his court\u2011appointed defence lawyer was present, found the applicant guilty of aggravated insult (see paragraph 50 below) and ordered him to pay 140 day\u2011fines of nine euros (EUR) each as well as the costs of the proceedings.","19.The applicant, who at no point requested legal aid to cover the cost of his trial, court-appointed counsel or counsel of his own choosing, was ordered, in particular, to pay costs amounting to EUR 150 for his representation by court-appointed counsel. He did not pay these costs and the execution of the cost order was later discontinued for lack of assets which could be seized.","20.In an order dated 1 May 2014 the Baixo-Vouga Criminal Court rejected an appeal by the applicant against the judgment as inadmissible, on the ground that the appeal had not been signed by court-appointed defence counsel or by a lawyer instructed by the applicant. It confirmed that, as had previously been decided in a final decision, the applicant, as the defendant, did not have the right to represent himself in the proceedings.","21.By an order dated 18 November 2014 the Porto Court of Appeal, acting through its President, dismissed a complaint lodged by the applicant in person against the order of the Baixo-Vouga Criminal Court.","22.The Court of Appeal reiterated that, according to Portuguese law and well-established case-law, defendants in criminal proceedings, even if they were themselves lawyers, could not represent themselves but had to be assisted by defence counsel. It stressed that, as had also been argued by the General Council of the Bar Association in Opinion No. E-21\/97 (seeparagraphs 59-60 below), the provision of a criminal defence constituted a public-order interest. Therefore, the right to a defence could not be waived, even if this meant imposing a defence lawyer on the accused. Moreover, in adversarial proceedings the powers vested by law in the defence were incompatible in many situations with the position of the defendant. This was also clearly the case at the trial, taking into account, for example, the places to be occupied in the courtroom, the wearing of a gown and the cross-examination of witnesses.","23.The Court of Appeal noted that the Constitutional Court had repeatedly confirmed, in particular in judgments nos. 578\/2001 and 196\/2007 (see paragraphs 52-55 below), that this interpretation and the corresponding legislation \u2013 including Article 64 \u00a7 1 (d) of the CCP, which stipulates that only defence counsel can lodge appeals (see paragraph 33 below) \u2013 was in keeping with the Constitution. Likewise, this approach was not in breach of the International Covenant on Civil and Political Rights (ICCPR) or of the Convention. In Portugal, the accused had an array of procedural rights which went beyond the minimum standards guaranteed by these international instruments.","24.The Court of Appeal explained that Portuguese law on criminal procedure granted accused persons ample opportunity to defend themselves in person. The defendant had a very comprehensive right to intervene in person at any time in the proceedings in order to make requests, offer points of clarification, reply, explain or submit statements (see, in particular, Articles 61 \u00a7 1 (b), 98 \u00a7 1, 272 \u00a7 1, 292 \u00a7 2, 332, 341(a) and 343 \u00a7\u00a7 1 and 2 of the CCP; paragraphs 30, 42 and 44 below). He also had the right to be the last person to address the court, immediately following the pleadings and before delivery of the judgment (see Article 361 \u00a7 1 of the CCP, paragraph45 below). There was a distinction between, and a dual safeguard emanating from, the mandatory instruction of a lawyer to ensure the accused\u2019s \u201ctechnical\u201d defence and the possibility for the accused to be present and to intervene in the proceedings.","25.Lastly, the Court of Appeal noted that, having no valid reasons to depart from an interpretation rooted in case-law and legal literature, Portugal had not amended its law in this regard either before or after the Views adopted in 2006 by the United Nations Human Rights Committee (see paragraphs 63 et seq. below).","26.As the applicant had not appointed counsel following his application to have the order of 18 November 2014 quashed, the Baixo-Vouga Criminal Court\u2019s judgment of 12 December 2013 became final on 6 January 2015.","27.According to the material before the Court, the applicant did not call into question the qualifications or quality of the court-appointed lawyer at any stage in the proceedings before the domestic courts."],"76":["5.The applicant was born in 1962 and lives in Novska. He is of Albanian origin.","A.Background to the case","6.In 1960 the applicant\u2019s parents fled Albania as political refugees and settled in Kosovo,[1] which was at the relevant time an autonomous province of Serbia. They were granted refugee status in the former Socialist Federal Republic of Yugoslavia (\u201cthe SFRY\u201d). The SFRY was a federal State composed of six republics: Bosnia and Herzegovina, Croatia, Serbia (with two autonomous provinces, Vojvodina and Kosovo), Slovenia, Montenegro and Macedonia.","7.The applicant was born in Kosovo soon after his parents\u2019 arrival to the SFRY. In 1979 the applicant, at the time seventeen years old, came from Kosovo to Croatia. He settled in Novska, where he has lived ever since.","8.The applicant has no family in Croatia. Since moving to Croatia, his parents have died in Kosovo. For a while, the applicant maintained a relationship with his two sisters, who lived in Germany and Belgium (see paragraphs 21, 29 and 35 below). In 2014 he declared to the domestic authorities that his only close relative was his sister in Belgium, with whom he had lost contact (see paragraph 48 below).","9.In 1987 the applicant applied for a permanent residence permit to the relevant police station in Novska.","10.He was instructed by the Novska police that he should regularise his status in Kosovo, where he had been officially registered. However, as the applicant refused to do that, he was provided with a temporary residence permit in Novska for the period between 4 January and 30 June 1988, pending the determination of his request for a permanent residence permit.","11.At the relevant time, the applicant possessed a certificate issued by the SFRY authorities in Kosovo in 1988 indicating that he had been an Albanian national with the status of a foreigner holding a temporary residence permit in the SFRY. The certificate also indicated that the applicant\u2019s parents had been nationals of Albania living in the SFRY as refugees.","12.On 2 February 1989 the Ministry of the Interior of the then Socialist Republic of Croatia informed the Novska police that the applicant\u2019s application for a permanent residence permit in the SFRY had been refused in accordance with the government policy according to which Albanian refugees should be instructed to apply for the SFRY citizenship.","13.On 22 February 1989 the applicant was interviewed by the Novska police in connection with the Ministry of the Interior\u2019s instruction. He explained that he had been granted a temporary residence permit by the relevant authorities in Kosovo which was valid until July 1989. He also stated that he had attempted to travel to Germany but had not had a valid visa and had thus been refused entry. At the time he was waiting for a visa for Belgium. The applicant further explained that he hoped to be granted a permanent residence permit but that he was not interested in acquiring SFRY citizenship as that would not provide him with any security. He considered that by acquiring SFRY citizenship, he should be granted a flat or a house in private ownership just as one had been granted to his father when he had come from Albania as a refugee. However, as he would not be granted any property, he refused to apply for SFRY citizenship.","14.On 23 February 1989 the Novska police informed the Ministry of the Interior that the applicant had refused SFRY citizenship. The report further explained that the applicant was employed in a garage of a private entrepreneur, M.R., and that he had several times contacted the Novksa police insisting that he be granted permanent residence. The report also indicated that according to the available information the applicant had secured a temporary residence permit from the authorities in Kosovo until July 1989.","15.A further report of the Novska police to the Ministry of the Interior of 26 February 1990 indicated that the applicant was still living in Novska and working in a restaurant. As his temporary residence permit issued by the authorities in Kosovo had expired, he had been instructed to regularise his status. This report also contains a handwritten note dated 12 June 1990 according to which the applicant had come to the police station and presented an identity card for a foreigner with temporary residence status in the SFRY issued by the relevant authorities in Kosovo and valid until 5November 1991.","16.On 25 June 1991 the Croatian Parliament (Sabor Republike Hrvatske) declared Croatia independent of the SFRY, and on 8 October 1991 all ties between Croatia and the SFRY were severed.","17.Meanwhile, war broke out in Croatia and the applicant was called up for mandatory civilian service with the local authorities. On 22 March 1992 the Novska police issued a permit to the applicant to move freely within the region of Novska-Kutina in order to perform his mandatory civilian service. The permit was valid until 31 December 1992.","B.The applicant\u2019s application for Croatian citizenship","18.On 9 June 1992 the applicant applied for Croatian citizenship with the Novska police. He submitted that he had been living at his current address in Novska since 1980s, and that he had been a refugee from Albania. He also explained that he was working in a garage of a private entrepreneur, Z.A.","19.On 20 July 1992 the Novska police forwarded the applicant\u2019s application to the Ministry of the Interior of the Republic of Croatia (Ministarstvo unutarnjih poslova Republike Hrvatske \u2013 hereinafter \u201cthe Ministry\u201d) with a suggestion that it be granted.","20.On 2 November 1992 the Ministry instructed the Novska police that they had failed to provide a report concerning the applicant\u2019s personal circumstances and information on his residence in Croatia.","21.In connection with the above application, on 16 December 1992 the applicant was interviewed by the Novska Police. In his interview, the applicant explained that he had Albanian nationality as he had been a refugee from that country. He further explained that he had come to Novska in 1979 where he had first worked as a waiter until 1984. Between 1986 and 1989 he had worked as a car mechanic for a private entrepreneur, M.R., and since 1989 for Z.A. During the war he had worked as a car mechanic for the police and the army. He was not married and did not have children. He had a sister living in Germany and one living in Belgium. He also had a brother living in Kosovo and another brother living at an unknown place in Albania. His parents lived in Kosovo.","22.On 18 December 1992 the Novska police informed the Ministry of the obtained information explaining that the applicant had lived in Novska as a foreigner since 1980 and that he had Albanian citizenship.","23.In May 1993 the national intelligence agency informed the Novska police that there was nothing preventing the applicant from being allowed to acquire Croatian citizenship.","24.According to the available information, the file concerning the applicant\u2019s application also contained a birth certificate issued by the SFRY authorities in Kosovo on 23 December 1987 according to which the applicant did not have any nationality.","25.On 14 June 1993 the Ministry issued an assurance that the applicant would obtain Croatian citizenship if he obtained a release or provided evidence that he had renounced his Albanian citizenship within a period of two years. In its reasoning to this assurance, the Ministry explained that the applicant had met all the necessary conditions to be granted the assurance and thus Croatian citizenship. It also referred to section 8a of the Croatian Citizenship Act (see paragraph 60 below).","26.Upon the expiry of the above-noted period of two years, on 16February 1995 the applicant lodged a new application for Croatian citizenship with the Novska Police. He explained that he was a national of Albania and that he had been living in Croatia since 1979. He was asking for Croatian citizenship in order to obtain legal certainty of his position. He stressed that he was ready to renounce his current citizenship and that he had nowhere to go back to in Kosovo. He also explained that he was employed as a car mechanic.","27.Meanwhile, the applicant had obtained a permit for extended residence of a foreigner (he was considered to be an Albanian citizen) from the Novska police for the period between September 1993 and September 1994, which was first extended until September 1995 and then January 1996. He was also granted a driving licence on 14 April 1994 valid until 19November 2027.","28.In February 1995 the intelligence agency informed the Novska police that there was no bar to the applicant\u2019s acquiring Croatian citizenship.","29.A report on the applicant\u2019s personal circumstances prepared by the Novska police on 8 March 1995 indicated that he had lived in Croatia since 1979. The report contains a statement that the applicant had an Albanian passport issued in Kosovo (then part of Serbia) and that he had allegedly disappeared from his place of residence during the war in Croatia. It also suggests that the applicant socialised with individuals of similar characteristics who were involved in trading of grey-market goods and repairing cars. Moreover, the report alleged that the applicant had never tried to regularise his status in Croatia. The report also indicated that the applicant\u2019s parents had died and that he had two sisters, who lived in Germany and Belgium.","30.On 28 March 1995 the Novska police informed the Ministry that the applicant had had a registered residence in Croatia since September 1993 (see paragraph 27 above).","31.On 3 August 1995 the Ministry dismissed the applicant\u2019s application for Croatian citizenship on the grounds that he did not have a registered residence in Croatia for an uninterrupted period of five years as required by section 8(1)(3) of the Croatian Citizenship Act (see paragraph 60 below).","32.The applicant challenged the above decision before the Administrative Court (Upravni sud Republike Hrvatske). He argued that he had had a registered residence in Novska since 1979 and that his personal circumstances had been well known to the Novska police. He also stressed that he was in employment and that he possessed an identity card and a driving licence issued by the Novska police.","33.On 29 May 1996 the Administrative Court dismissed the applicant\u2019s administrative action on the grounds that there was no evidence that he had had a registered residence in Croatia since 1979. In fact, according to the Novska police\u2019s report of 28 March 1995 (see paragraph 29 above), he had had a registered residence in Novska, as a foreigner with extended residence status, since 24 September 1993. In these circumstances, the Administrative Court considered that no available evidence suggested that the applicant had had an uninterrupted registered residence in Novska for a period of more than five years as required by section 8(1)(3) of the Croatian Citizenship Act.","C.The applicant\u2019s application for a permanent residence permit","34.On 13 November 2001 the applicant asked the Ministry to grant him a permanent residence permit. He argued that he was employed and had sufficient means of subsistence and a strong interest to live in Croatia. Together with his application, the applicant provided the birth certificate issued by the SFRY authorities in Kosovo on 23 December 1987 (see paragraph 24 above). He also provided his employment booklet according to which he had been employed in the periods between 1 July 1986 and 15July 1987, 1 August 1987 and 1 December 1988, and 1 January 1989 and 31December 1989 in the garage of M.R.","35.A report on the applicant\u2019s personal circumstances prepared by the Novska police on 24 April 2002 indicated that the applicant was a national of the Federal Republic of Yugoslavia (Serbia and Montenegro \u2013 hereinafter \u201cthe FRY\u201d). According to the report, the applicant had settled in Novska in 1979 and had first worked in the garage of Z.A. until 1984; and then, between 1985 and 1990, in the garage of M.R. The report further indicated that the applicant was at that time unemployed and supported by his sisters in Germany and Belgium. He had lived in Novska for twenty-two years and had never left Croatia. The only document which he possessed was a driving licence. Up to that point he had been prosecuted only for a minor offence related to the status of aliens.","36.On 29 April 2002 the Ministry instructed the Novska police that the applicant should also be interviewed in connection with his application.","37.The applicant was interviewed by the Novska police on 10 June 2002. He explained that after he had been given an assurance of eligibility for Croatian citizenship (see paragraph 25 above) he had contacted the Albanian embassy several times. However, they had at first delayed their response and then dismissed his request. He had therefore been unable to obtain a certificate of renunciation of Albanian citizenship within the relevant period of two years. The applicant further explained how his second application for Croatian citizenship had been refused because he had not had a registered residence in Croatia for five years (see paragraphs26\u201133 above).","38.In his interview the applicant also stated he did not have a travel document of any country. So far he had always relied on his Albanian citizenship but whenever he had tried to obtain Albanian travel documents, he had been orally refused. The same was true for his attempts to obtain travel documents from the FRY. The applicant further explained that he did not have a family and was not married. He wanted to stay in Novska because there he knew a lot of people and would be able to make a living there.","39.On 3 July 2003 the Ministry dismissed the applicant\u2019s application on the grounds that he did not meet the necessary statutory requirements under section 29(1) of the Movement and Stay of Foreigners Act (see paragraph 61 below). In particular, he was not married to a Croatian national or an alien with a permanent residence in Croatia, and he did not have three years of uninterrupted employment in Croatia. The Ministry also held that there was no particular interest of Croatia in granting him residence under section 29(2) of the Movement and Stay of Foreigners Act. The Ministry considered the applicant to be a national of Serbia and Montenegro.","40.The applicant challenged this decision before the Administrative Court. He argued that the fact that he had previously been a national of Serbia and Montenegro and had resided in Croatia since 1979 qualified him for permanent residence in Croatia. The applicant also contended that it was difficult for him to find a formal employment as he did not have permanent residence permit for Croatia.","41.On 17 August 2006 the Administrative Court dismissed the applicant\u2019s administrative action as unfounded. The Administrative Court held that the Ministry had properly established that the applicant had failed to meet the statutory requirements under section 29(1) of the Movement and Stay of Foreigners Act as his employment booklet did not show that he had worked for an uninterrupted period of three years. Moreover, the Administrative Court considered that nothing in the circumstances of the case suggested that the applicant should be granted permanent residence under section 29(2) of that Act.","42.The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the decisions of the lower bodies. He argued that he had continuously lived in Croatia since 1979 and that he had worked. He argued that he should have been granted permanent residence.","43.Meanwhile, the applicant obtained a note from M.R., for whom he had worked, attesting that he had been employed by M.R. in the period between 1986 and 1989 and that he had proved to be a hardworking and responsible employee. M.R. also promised to employ the applicant again and to secure him accommodation should he be granted permanent residence.","44.On 1 October 2008 the Constitutional Court dismissed the applicant\u2019s constitutional complaint as unfounded endorsing the reasoning of the Administrative Court.","D.The applicant\u2019s stay on humanitarian grounds","45.In the period between 26 July 2011 and 27 August 2013 the police three times temporarily extended the applicant\u2019s residence for periods of one year by reference to the humanitarian grounds under the Aliens Act (see paragraph 62 below). In the relevant decisions, the applicant was considered to be a national of Kosovo.","46.When extending his temporary residence permit on humanitarian grounds on 27 August 2013 for another year under section 65(1)(5) of the Aliens Act, the applicant was requested to provide a valid travel document as provided under section 52(4) of the Aliens Act (see paragraph 62 below).","47.On 10 June 2014 the applicant again applied for an extension of his temporary residence permit. He argued that he did not have a travel document of Kosovo as he had not been there nor did he have any interest in going there. He explained that he just wanted to regularise his status in Croatia.","48.In connection with his application for an extension of his temporary residence permit, in July 2014 the applicant was interviewed by the Novska police. A note on his interview indicated that the applicant was a national of Kosovo and that he had knowledge of the Albanian language. It also stated that the applicant had been employed by M.R. in the period between 1981 and 1991 and that during the war in Croatia he had worked for Z.A. repairing military and police vehicles until 1993. Since then he had been unemployed but had been earning money by helping out on the farms in the Novska area. His parents had died and the only close relative he had was a sister living in Belgium, with whom he had lost contact. The note further explained that the applicant\u2019s neighbours had been interviewed and that they confirmed that he had been a good and hardworking person. The note also indicated that the applicant had committed several minor offences for which he had been fined and a criminal complaint had been lodged against him in connection with a road accident in which he had been involved.","49.On 30 July 2014 the Ministry instructed the Novska police that there were no grounds to extend the applicant\u2019s residence since he had failed to provide a valid travel document.","50.The Novska police invited the applicant for an interview on 28August 2014 at which he was informed of the Ministry\u2019s instruction. The applicant explained that he had come to Croatia in 1979 and had no connection to Kosovo. He had had the status of a refugee from Albania until he had reached the age of eighteen, since that status had been granted to his parents. He stressed that he had lived his whole life in Novska. He also promised to contact the embassy of Kosovo in order to obtain a travel document and asked the Novska police not to dismiss his request.","51.On 16 September 2014 the Novska police dismissed the applicant\u2019s application for the extension of his temporary residence on humanitarian grounds. It held that the applicant did not meet the requirements for granting further temporary residence status as he had failed to provide a valid travel document and the Ministry had not given its consent to an extension of his residence permit.","52.On 7 October 2014 the applicant challenged the decision of the Novska police before the Ministry, relying on Articles 8 and 14 of the Convention and Article 1 of Protocol No. 12. He argued that he had had SFRY citizenship, which he had lost in unclear circumstances following the dissolution of that country. As he had come from Kosovo to Croatia, it was possible that he was considered to be a national of Kosovo by the Croatian authorities, but in reality he did not have citizenship of that territory. The applicant also argued that he was not a classic alien but an individual who found himself in the very specific circumstances of the dissolution of the SFRY in a situation whereby he was no longer able to provide a valid travel document. He also contended that he had been erased from the register of domicile and residence in Croatia without ever being informed thereof. He was therefore unable to regularise his residence status in Croatia and thus to find employment, to move freely without valid documents or to travel, which was neither a lawful nor a proportionate interference with his Article8 rights. Moreover, the applicant contended that there was a gap in the relevant domestic law as the status of individuals who found themselves in his situation following the dissolution of the SFRY was not regulated. Accordingly, a strict formal application of the Aliens Act could not lead to a solution in his case.","53.On 30 January 2015 the Ministry dismissed the applicant\u2019s appeal. It referred to the applicant\u2019s previous attempts to regularise his status in Croatia, which had all been unsuccessful. According to the Ministry, this showed that he had not been erased from the relevant registers without being informed. The Ministry further stressed that the applicant had been invited several times to provide a valid travel document and he had promised to contact the embassy of Kosovo in this connection but had failed to do so. Accordingly, in the Ministry\u2019s view, his arguments that he had not been a typical alien and that the relevant authorities had formalistically applied the relevant law had been misplaced. Moreover, there was a possibility for him to obtain a temporary travel document in order to travel to his country of origin so as to obtain a valid travel document.","54.On 25 February 2015 the applicant challenged the Ministry\u2019s decision before the Zagreb Administrative Court. He contended that he had been a national of the SFRY and that he had had a registered residence in Novska since he had arrived there in 1979, which had been erased at a later stage. He also relied on his available birth certificate showing that he did not have any citizenship (see paragraph 58 below). He also reiterated his complaints of an unjustified infringement of his Article 8 rights by a decision of the administrative authorities and a breach of Article 14 of the Convention and Article 1 of Protocol No. 12. On 21 April 2017 the Zagreb Administrative Court dismissed the applicant\u2019s administrative action endorsing the reasoning of the Ministry\u2019s decision. The applicant challenged these findings before the High Administrative Court (Visoki upravni sud Republike Hrvatske) and the proceedings are still pending.","55.Meanwhile, on 4 September 2015 the Novska police granted the applicant temporary residence status on humanitarian grounds for a further year inviting him to provide a valid travel document. The Novska police held that the applicant was a national of Kosovo whose parents had come from Albania to Kosovo and that they had had the status of refugees in the SFRY. It also stressed that the Ministry had given consent to the extension of the applicant\u2019s temporary residence irrespective of the fact that he had not provided a valid travel document.","56.On 4 October 2016 the Novska police extended the applicant\u2019s residence status on humanitarian grounds for a further year. It referred to the same reasons as cited above.","E.Other relevant facts","57.According to the applicant\u2019s handwritten statement to his representative of 7 July 2015, he never had Albanian citizenship. He explained that he had contacted the Albanian embassy after he had been given an assurance that he had qualified for Croatian citizenship but they had told him that he had not been a national of that State (see paragraphs 25 and 37 above). The applicant further stressed that in his contacts with the police concerning the regularisation of his residence status, the police officers had always suggested that he had been an Albanian national. He also explained that he had been born in Kosovo and that his parents had had SFRY citizenship. He had come to Croatia in 1979. He simply wanted to regularise his status in Croatia.","58.According to a birth certificate issued by the Kosovo authorities on 10 June 2009, the applicant\u2019s parents had had Kosovo nationality but the applicant did not have that nationality.","A.Albanian Citizenship Act of 16 December 1946","66.The Citizenship Act of the People\u2019s Republic of Albania of 16December 1946, followed by a decree of 1954 (see paragraph 70 below) and 1961, which remained in force until the democratic changes in Albania and the adoption of further provisions on citizenship in 1992 and the new law on the matter in 1998 (see paragraph 71 below), provided in its section 3 that Albanian citizenship may be obtained by origin, birth in Albania, naturalisation and according to the applicable international treaties.","67.Section 4 specified that children obtain Albanian citizenship by origin if: parents were Albanian citizens; one of the parents was an Albanian citizen and the child had been born within a legal marriage concluded before the competent Albanian bodies; one of the parents was an Albanian citizen and lived together with the child in Albania permanently or had moved to Albania together with the child before the child had reached eighteen years of age; or if the child had moved to Albania permanently or to pursue studies. Citizenship could also be obtained when one of the parents was an Albanian citizen but the child had been born and lived with the parents abroad, if the parent who had Albanian citizenship had registered the child as an Albanian citizen in Albania within five years of the birth. If the child, based on the laws of the country where he or she had been born was considered an Albanian citizen, registration with the Albanian authorities was not a necessary condition to obtain Albanian citizenship. The provisions of this section applied even in cases where children had been born to a foreign citizen and it had been later proven that he or she had an Albanian father.","68.Section 13 provided:","A.Absence","\u201cA citizen who resides continuously outside Albania loses Albanian citizenship if, within fifteen years of the day he or she reaches eighteen years of age, he or she has not fulfilled any public duty to the People\u2019s Republic of Albania and in the last five years has not appeared in an Albanian representative office [lit. representation] or has not notified the Ministry of the Interior of his or her situation.","The loss of citizenship because of absence is also extended to children who were born and have continuously lived outside the state, except when they have fulfilled the conditions provided by the first paragraph of this article.","The Ministry of the Interior issues the decision of the loss of citizenship. The decision can be contested within two years of the date of its announcement in the Official Gazette.\u201d","B.Albanian citizenship legislation in practice","69.Within the framework of a European Union Democracy Observatory on Citizenship (EUDO-Citizenship) research project \u201cThe Europeanisation of Citizenship in the Successor States of the Former Yugoslavia\u201d, in 2010 G\u00ebzim Krasniqi produced a report entitled \u201cCitizenship in an emigration nation-state: the case of Albania\u201d where he addressed various issues of Albanian citizenship and the position of individuals who had emigrated from Albania to other countries, in particular to the SFRY.","70.The report explains that section 13 of the Albanian Citizenship Act of 1946 was used as a tool of retaliation against the enemies of the regime (see paragraph 69 above). In addition, section 14 provided for a possibility of removal of citizenship for all those who were considered to be acting contrary to Albanian national interests. In 1954 a decree was enacted which vested wide discretionary powers in the hands of the President when dealing with the matters of removal of citizenship.","71.The report also explains that under the post-communist Albanian Citizenship Act enacted in 1998, citizenship may be acquired by birth to at least one parent with Albanian citizenship. It may also be acquired by naturalisation, which requires that individuals who apply have lived in Albania for a certain period of time. However, there is a possibility of \u201cfacilitated naturalisation\u201d, which applies to individuals who have renounced their Albanian citizenship in order to acquire the citizenship of another country. For such individuals it is sufficient to submit an application. However, in practice, they have faced many problems in re-acquiring citizenship.","72.According to the available information, in the period between 1991 and 2007 some 3,184 individuals, mostly ethnic Albanians from the former Yugoslavia, acquired Albanian citizenship. Nevertheless, on a political level, although ethnic Albanians from the former Yugoslavia are given various forms of social and cultural preferential treatments, there has not been a full extension of citizenship rights.","73.The procedure for acquiring Albanian citizenship starts by submitting an application to the relevant police directorate, which has two months to forward the application to the Ministry of the Interior. The latter should, within six months from the filing date of the application, decide whether to forward it to the Office of the President of the Republic. The President\u2019s Office should then, within three months of receipt of the application, decide upon the application for citizenship.","74.The report observes that, despite the above procedures, the implementation of the legislation still remains problematic in Albania. This in particular concerns the manner of registration of new-born children in the relevant registration offices; the fact that the civil register is not properly updated, so some individuals who have lost their citizenship are still registered as Albanian nationals; and there is a lack of transparency of the relevant procedures."],"77":["A.Background and emergency decisions","5.In 2006 the applicant moved to Norway after marrying C, an Iraqi national who had come to Norway in 1999. The couple\u2019s first daughter, A, was born in February 2008. Their second daughter, B, was born in June 2010.","6.On 7 April 2009 the emergency unit at the child welfare authorities in F. municipality received a request to assist the police with an incident in which the applicant and C were having a heated argument in the presence of their child. A few days later, on 10 April, the police were called again. The applicant then said that C had hit her and tried to strangle her and A on the same day. C was arrested and placed in custody. The applicant and A were taken to a crisis centre.","7.The next day, on 11 April, the applicant was admitted to hospital with pain and bleeding. She then consented to A being placed in an emergency foster home while she was in hospital. The applicant asked the hospital for protection during her stay, because she was afraid that C\u2019s family would come to the hospital to kill her.","8.The applicant was discharged from hospital on 12 April 2009. She withdrew her consent to the emergency placement of A and they moved into a crisis centre. The child welfare authorities made a decision on assistance measures on 14 April 2009 and informed the applicant that they would be concerned about A\u2019s welfare if the applicant were to move back in with C. The applicant then stated that she did not wish to move back in with him. She wanted to have a domestic abuse alarm device if she moved back.","9.On 16 April 2009 the applicant moved back home with A. She did not want to give evidence in the criminal proceedings against C, A\u2019s father, and refused to release her doctor from the duty of confidentiality. On 24April 2009 C was released from custody and moved back home. A restraining order that had been imposed on him in relation to the applicant was lifted at her request.","10.Taking into account that C had tried to strangle the applicant and A with an electrical cord (see paragraph 6 above), the child welfare authorities gave the applicant a choice between moving into a crisis centre with A or having her forcibly taken into care. On 29 April 2009 the applicant moved back into the crisis centre in F. with A.","11.While at the crisis centre the applicant had a lot of contact with C by telephone. She expressed a wish to move back in with him with A, but also stated that he should not be at home at the same time as them. After she let C into the crisis centre on 6 May 2009, the centre no more wanted her to stay there. As the applicant expressed a wish to move back home to C, the child welfare authorities decided on 7 May 2009 to place A in an emergency foster home for the second time because they were of the opinion that the mother was unable to protect A from violence from her father.","12.In a consultation at the emergency clinic that day, the mother denied that C represented a risk to her or the child and that he had previously hurt them.","13.On 18 May 2009 the applicant moved into a crisis centre in O. This crisis centre was of the opinion that A should be returned to her. The child welfare authorities disagreed, and cooperation between the crisis centre and the authorities became difficult. In the end, A was returned to the applicant on 24 June 2009 and they then stayed together at the crisis centre.","14.On 17 July 2009 the applicant and A moved back in with C. The child welfare authorities closed the case, but reopened it after the applicant\u2019s lawyer raised concerns (\u201cbekymringsmelding\u201d) and stated that mother and child still had great need of the authorities\u2019 help. On 29 July 2009 the authorities initiated assistance measures, including parenting guidance, couple therapy, a Norwegian language course for the applicant, and aggression management therapy for C. An application was also submitted for a kindergarten place for A. After a while the kindergarten raised concerns owing to A\u2019s high absence rate and the fact that many verbal expressions of anger were being directed at the staff by C.","15.On 15 October 2009 the police raised additional concerns with the child welfare authorities after they had been called out to the hospital in F. The mother had been admitted the day before with a suspected ectopic pregnancy. C had taken A to the hospital and the police had regarded his behaviour as so aggressive and threatening towards the hospital staff that they had thought it appropriate to notify the child welfare authorities. C had influenced the applicant to discharge herself from hospital against medical advice. However, she had suffered heavy bleeding and had been readmitted. C had been banned from visiting her at the hospital. He was at home with A, about whom the police were concerned, as the father was aggressive and threatening towards the applicant and their daughter.","16.On the following day, 16 October 2009, the child welfare emergency unit visited the family. C was very upset and angry, as he claimed that he had not consented to such a visit.","17.In May 2010 the applicant attended an appointment at a crisis centre in O. According to the child welfare authorities\u2019 records, C had been \u201caggressive and out of control\u201d because of this meeting.","18.In June 2010 the couple\u2019s second daughter, B, was born.","19.On 2 September 2010 the City Court (tingrett) gave a judgment in which C was acquitted of violating Article 219 of the Penal Code on the maltreatment of family members, but convicted of some other offences. The counts in the indictment under Article 219 concerned the incidents in April 2009 (see paragraph 6 above). In the course of the criminal case, the applicant had withdrawn her previous statements concerning violence by C.","20.On 17 November 2010 the child welfare authorities received a call from a crisis centre in S. informing them that the applicant and her two children had arrived there after C had been violent towards them and had threatened to kill the applicant. C had been arrested, but had then been released. The applicant had withdrawn her statement about his acts of violence and was preparing to go home. Based on this and previous incidents, the authorities decided to issue an emergency care order that day to place the children in an emergency foster home at a secret address. This was A\u2019s third emergency placement (see paragraphs 7 and 11 above). The order was approved by the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker \u2013 hereinafter also \u201cthe Board\u201d) the following day.","21.On the same day, 18 November 2010, the applicant went to the crisis centre in O. At a meeting held there on 23 November 2010 she stated that she never wanted to return to C. The child welfare authorities emphasised that she could not have any contact with him once the children were returned to her. Initially, the authorities\u2019 intention was to return the children to the applicant at the crisis centre in S., where they would all stay. The specialist team in S. expressed concern about this solution, and the authorities decided that the children could not be returned until the applicant was settled in her own flat. They thought it would be unfortunate to return the children only to put them through another emergency placement if the mother moved back to C.","22.On 25 November 2010 a restraining order was imposed on C in relation to the applicant.","23.The parents appealed against the emergency care order of 17November 2010 to the Board, which granted the appeal in part in a decision of 15 December 2010. The decision regarding the emergency placement was upheld, but the amount of contact with the children was increased and the decision not to inform the parents of the children\u2019s whereabouts was set aside.","24.On 21 December 2010 the applicant moved from the crisis centre in O. to the crisis centre in S. She subsequently stayed at a crisis centre in G. from 5 January to 29 May 2011.","B.Placement of A and B in care","25.An application for the children to be taken into care was first submitted to the Board by F. municipality on 23 December 2010. The municipality wanted consideration of the case to be postponed so that an expert assessment could be prepared, but the parents were opposed to this. The Board considered the case at a meeting from 8 to 10 March 2011. On 18March 2011 the Board nevertheless decided to adjourn the case in order to appoint experts to carry out an assessment of it. The appointed experts were a specialist in educational and psychological counselling, L.M., and a specialist in clinical psychology, B.S. The experts\u2019 joint statement was submitted on 31 May 2011.","26.The child welfare authorities wanted the contact sessions to be supervised and engaged trained personnel from a company to do so. The supervisers started their work on 8 April 2011 and submitted a report on 3June 2011.","27.C was dissatisfied with the work of the appointed experts (see paragraph25 above), and therefore hired G.H., a specialist in child and adolescent psychology, as a private expert to observe contact sessions between the applicant and the children. G.H. submitted his report on 11June 2011.","28.The care order case was considered by the Board on 14 and 15June 2011.","29.The applicant stayed at the crisis centre in G. again from 14 to 30June 2011, after which time she moved into her own flat in G.","30.Before the Board reached a decision, the two children were abducted from a contact session with the applicant. The incident took place on 21June 2011 at G. Volunteer Centre (\u201cfrivillighetssentral\u201d) in B. Two people wearing balaclavas and sunglasses forced their way in during the contact session, used an electroshock weapon on the applicant and abducted the children. The contact session was being supervised by a member of the company\u2019s staff (see paragraph 26 above). The staff member managed to escape through the veranda door and summon help. The applicant was injured and unconscious and was taken away to hospital by air ambulance. The children were found in a flat in H. the next day. C later admitted that he had been behind the abduction and that he had been in the vicinity when it had happened.","31.The Board found out about the abduction before it made its decision, and it was therefore decided that there should be no contact between the children and the parents. The operative part of the Board\u2019s decision of 24June 2011 read as follows:","\u201c1.F. municipality, represented by the child welfare authorities, shall take A, born ... February 2008, into care.","2.F. municipality, represented by the child welfare authorities, shall take B, born ... June 2010, into care.","3.A and B shall be placed in separate foster homes at secret addresses. A shall be placed in enhanced foster care [where foster parents have extensive support from the child welfare authorities].","4.No minimum level of contact between the mother and the girls is set out. If contact sessions are to take place, the child welfare authorities are authorised to supervise them.","5.No minimum level of contact between the father and the girls is set out. If contact sessions are to take place, the child welfare authorities are authorised to supervise them.\u201d","32.The decision was brought before the City Court (tingrett). When the hearing started, on 9 November 2011, the applicant was not present. Her counsel was there and argued that the case should be postponed. After the City Court had decided not to do so, the applicant\u2019s counsel left as he was of the opinion that he could not attend to the interests of his client. However, C informed the court that he was in touch with the applicant. She arrived later the same day at the court and stated that she had spoken to her counsel. She also argued that the case should be adjourned. When told that it had already been decided to continue the hearing, the applicant left the court.","33.On 21 November 2011 the City Court upheld the Board\u2019s decision. As to the applicant and her counsel leaving the hearing, the court noted that it found it difficult to view this as anything but an attempt to force the court into postponing the case, although it did not find it clear why they wanted the case to be postponed. Based on the evidence presented to it, the City Court found it highly likely that C would attempt to abduct the children. Moreover, it was found to be the case that C was in control of the applicant and that she followed his orders. Among other things, the City Court referred to the fact that the applicant under the hearing had made herself unavailable to her counsel, but not to C. The City Court stated that the abduction risk might possibly be regarded differently when the criminal case against C had been heard by the court. At present, however, it took account of how C had declared that the abduction had been in the children\u2019s best interests and concluded that there should be no visiting rights.","34.Instructed by the applicant\u2019s lawyer on 5 December 2011, a specialist psychologist, J.W., submitted an expert report in the case on 16December 2011.","35.The parents appealed to the High Court (lagmannsrett) against the City Court\u2019s judgment.","36.On 8 March 2012 the applicant submitted an official complaint to the police against C in relation to rape, deprivation of liberty, and threats made in her flat. The applicant went to the crisis centre in G., but moved back to her own flat a few days later. C also contacted the applicant in G. later in March. A restraining order was imposed on him, and the applicant was moved to a secret address.","37.The High Court appointed the clinical psychologist B.S. as expert (see paragraph 25 above). He submitted his report on 12 August 2012. The High Court then heard the case from 25 to 27 September 2012. The parents were present together with their counsel and gave evidence. Eight witnesses were heard, including two expert witnesses. B.S., the court-appointed expert, gave testimony.","38.On 22 October 2012 the High Court rejected the appeal. It noted that a care order presupposed serious deficits in the applicant\u2019s caring abilities and though the applicant, if viewed in isolation, would have sufficient capacity to take care of the children with assistance of the child welfare authorities, the question was whether the children would be sufficiently protected from C. The applicant did not want further dealings with him. C\u2019s behaviour showed, however, that he was unwilling to respect her wish. As to contact rights, the High Court did not take a stance on whether a secure regime for visits could be established. At that time, there was in any event an obvious risk that C would again try to kidnap the children.","39.Leave to appeal to the Supreme Court (H\u00f8yesterett) was denied by the Supreme Court\u2019s Committee on Leave to Appeal (H\u00f8yesteretts ankeutvalg) on 19 December 2012.","C.Removal of parental responsibility and authorisation of adoption","40.During the summer of 2013, the applicant was subject to threats from her half-brother, on paid assignment from C, in order to make her move back to Iraq. On 12 August 2013 she was granted divorce. The hearing of the criminal charges against C took place in September 2013.","41.On 1 October 2013 the child welfare authorities applied to the Board for an order that the applicant and C have their parental responsibility in respect of A and B removed; parental responsibility would then be transferred to the authorities. The authorities also applied for the Board\u2019s authorisation of the foster parents\u2019 adoption of the children. The applicant applied to the Board for an order that A and B\u2019s placement in care be discontinued.","42.On 3 October 2013 the District Court convicted C of abducting the children (see paragraph 30 above) and sentenced him to one year and seven months\u2019 imprisonment, of which six months were suspended. C appealed against the judgment.","43.On 29 November 2013 the Board appointed B.S., the psychologist, as its expert. He submitted a report on 31 January 2014 (see paragraph53 below).","44.The case was heard on 10 and 11 February 2014. The Board sat with a chairperson who was qualified to act as a professional judge, a psychologist and a layperson, in accordance with the first paragraphs of sections 7-2 and 7-5 of the Child Welfare Act (see paragraph 114 below). The applicant was present with her legal aid counsel and gave evidence. C was in Iraq, but testified by telephone as a party to the case and was represented by his counsel. The appointed expert attended the proceedings and testified. One other witness was heard.","1.The Board\u2019s decision not to discontinue the children\u2019s placement in care","45.In its decision of 25 February 2014, the Board noted that the previous care order case had been considered as directed against the applicant, as C had accepted that she had day-to-day care and control of the children. This situation had not changed, and C now supported the applicant\u2019s claim for revocation of the care order.","46.The Board first reiterated the following from the High Court\u2019s judgment of 22 October 2012 concerning the children\u2019s placement in care (see paragraph 38 above):","\u201cIn the High Court\u2019s opinion, seen in isolation, the mother will be capable of providing adequate care for the children, provided that adequate assistance measures are offered. The High Court understands that this opinion is shared \u2013 although to a varying extent \u2013 by all the experts who have appeared before [it].\u201d","47.There was limited updated information about the applicant\u2019s situation at the time of the Board\u2019s decision, but it was clear that she had been granted a divorce from C. She had also passed a Norwegian language course and established a small social network in G. Seen in isolation, her ability to provide care thus appeared to have improved somewhat since the High Court hearing.","48.On the other hand, the High Court had concluded that there were serious deficiencies in the applicant\u2019s ability to provide care because of the threat that C represented to her and the children. The Board made reference to the following passages from High Court\u2019s judgment:","\u201c... the question at issue in this case is whether the children will be sufficiently protected against violence from their father if they are returned. It is very important to the father that the children grow up in accordance with their Kurdish background, and he is clearly willing to go to great lengths to achieve this, possibly also by using violent methods. He has stated that the purpose of the abduction was to take them to Iraq. ...","After the presentation of the evidence, the High Court is in no doubt that the father is violent and represents a threat to the mother. ...","Based on the facts described above, the High Court finds that there is a strong preponderance of likelihood of the father having committed violent acts against the mother, and that it is probable that he, or someone acting on his behalf, will be violent to the mother again. Among other things, [the court] points out that the expert witness J.W., who has assessed the violence described in the case in a cultural context, believes that the mother\u2019s \u2018life probably was [or] is in serious danger\u2019.","The mother and father are divorced, and the mother wants no further contact with the father. His behaviour as recently as in March this year in G. shows that he is not willing to respect the mother\u2019s wish to break off contact [with him]. In the High Court\u2019s opinion, there can be little doubt that the father\u2019s further contact with the mother will be harmful to the children and constitute a significant deficiency in relation to the children\u2019s safety if the care order is revoked.\u201d","49.However, the High Court had stated in its judgment that the question of contact for the applicant could be seen in a different light if C were expelled from the country. This was because the security concerns described in the judgment would then not apply to the same extent.","50.The expert appointed by the Board, B.S., had not carried out a new assessment of the applicant\u2019s ability to provide care in his report of 31January 2014 (see paragraph 43 above). In a statement dated 11February 2014 from the Child Welfare Expert\u2019s Commission (barnesakkyndig kommisjon), one of the two commission members had remarked that it would have been preferable for the mother to have been given an opportunity to comment on such a serious matter. It was also stated that it was expected that this would form part of the Board\u2019s consideration of the case.","51.In his testimony before the Board, psychologist B.S. upheld his assessment given in the report of 31 January 2014 that, seen in isolation, the applicant\u2019s ability to provide care was sufficient for her to have care and control of the children with assistance measures in place. The Board agreed, and also made reference to the High Court\u2019s assessment of this issue (see paragraphs38 and 46 above). Nothing in the case indicated that the applicant\u2019s ability to provide care had deteriorated since the High Court\u2019s hearing in 2012. If anything, it had to be deemed to have slightly improved. The applicant had testified before the Board and the Board considered that the issue had been adequately clarified.","52.The children\u2019s father had been in Iraq for months, and had stated in his testimony as a party to the case that he was building a house and was engaged to be married to a new woman. He had no plans to return to Norway, and he planned to settle permanently in Iraq. The father had last been in Norway during the criminal proceedings against him in September 2013. His counsel stated that the conviction had not been formally served on C, but he had nonetheless appealed against it, and he added that he expected C to sign the letter accompanying the appeal soon, so that the High Court could consider it.","53.In his expert report of 31 January 2014 to the Board, B.S. had given the following assessment of the situation:","\u201cAccording to information received, the father is currently in Iraq. If he returns to [Norway], he must expect to be arrested to serve the prison term he was sentenced to for the abduction. [I do] not know if he would then be expelled from the country. The present situation resembles the situation that the High Court deemed to be associated with less risk for the children [(see paragraph 49 above)].","[I do] not necessarily agree with the High Court\u2019s assessment. This is a complex issue, and to the extent that the question of risk can be clarified with a sufficient degree of certainty, that would require extensive investigation which would also involve the parents\u2019 relatives and other networks in countries other than Norway. That is far beyond the remit of the expert examination. Nevertheless, it is possible to make some general reflections based partly on knowledge about what is common in the parents\u2019 culture, and partly on information provided by the parents themselves.","The children belong to the father\u2019s family. Not just to the father, but to his family. The mother has main responsibility for bringing up the children as long as they are regarded as children. It is therefore unproblematic for the father to accept that the children be returned to the mother to grow up with her. Once they are grown up, however, they will still belong to their father\u2019s family. They will be considered \u2018adult\u2019 long before the Norwegian age of majority; age of sexual maturity is a more relevant criterion than chronological age.","For a family that is concerned with the honour code, the actions of an adult daughter have a bearing on the whole family\u2019s honour. If she leads a life in conflict with the family\u2019s norms, particularly as regards her sexual life, this affects the whole family, which will lose all prestige in the eyes of the surrounding world. In extreme cases, the family may feel forced to track down the woman and kill her to restore the family\u2019s honour and prestige. This does not necessarily diminish with time and distance. Nor does this only apply in conservative religious families; it is more a question of culture than of religion. There are several examples of relatives tracking down women living in Western countries and committing so-called honour killings despite the family having lived in the West for many years and appearing to be modern and well-integrated.","If such mechanisms are at play in the father\u2019s family, the father\u2019s whereabouts are less important in relation to the risk. Nor will the risk diminish with time. The opposite may even be true. A and B are young children, and children are not in a position to disgrace their family. As they become older, keeping them under control may become much more important for the family than it is today. Preferably, they should be \u2018saved\u2019 before they have the opportunity to do anything wrong. The family could achieve this by organising another abduction and taking them to Iraq. If the children were nevertheless to bring dishonour on the family, or if the family assumed that to be the case because they lived outside the family\u2019s control, there is a possibility that A and B would risk being hunted for years and maybe even killed if their family found them.","On the basis of the above, [I am] of the opinion that the risk associated with disclosing A and B\u2019s whereabouts has not decreased, even though the father is abroad. This means that returning them to their mother would still entail a serious threat to their care situation, even if the mother, seen in isolation, may be able to provide proper care. Based on what is known about the mother from before, [I am] highly uncertain whether the mother would keep her and her children\u2019s identities secret from the father\u2019s family in the event that she was given a new identity and a secret address. In order for such an arrangement to be safe, the mother would probably have to break off all contact with her own family as well. It is neither realistic nor ethically justifiable to make this a condition.\u201d","54.In the Child Welfare Expert\u2019s Commission\u2019s statement of 11February 2014 (see paragraph 50 above), one of the two commission members had pointed out that the expert\u2019s conclusions as quoted above were not based on concrete knowledge about the situation in this family. The member had also stated that, when so much time was devoted to considerations on the family and situation in Iraq, this could easily give a wrong impression, even if doubts were also included in the report. This could easily lead to incorrect or false premises being established for the assessment of the risk associated with the mother\u2019s contact with the children in a situation where their biological father was not in the country. The other commission member had had no comments on the expert\u2019s report.","55.The Board agreed that assessing the risk with a sufficient degree of certainty would require extensive investigation. This had not been done in this case, and the Board had no option but to base its assessment on the known facts. Based on the presentation of evidence, the Board agreed with the expert that his concerns regarding the risk had not been assuaged during the hearing before the Board.","56.Firstly, the police still considered the children to be at high risk of being kidnapped. The police had not testified about this before the Board, but the Board had no reason to doubt the police\u2019s assessment. The Board had been informed that the foster families had to clear all visits outside the municipality with the police. At a time when the police\u2019s use of resources was under continuous evaluation, the Board saw no reason to believe that the level of protection was seen as excessive.","57.Secondly, C had tracked down and raped the applicant in March 2012, and had also approached her later that month. In the summer of 2013 the applicant had received death threats from her half-brother, among other things, and she herself had stated that the threats had been made because C had paid her half-brother to do this. The applicant had informed the Board that she had been kept under surveillance for a prolonged period by her half-brother, who had come to Norway under an alias. She had reported this to the police, and the police had allegedly told her that her brother might possibly be expelled from Norway. However, she did not know his whereabouts. Since C had on two occasions and until quite recently used accomplices to put the applicant and\/or the children in great danger, the Board considered C\u2019s actual location of less importance. There was also good reason to question whether he would stay away from Norway, given that he had appealed against the District Court\u2019s judgment in the criminal case (see paragraph 42 above). An appeal on the question of his guilt would be dismissed if he did not appear.","58.Thirdly, C\u2019s mother in Iraq had stated that she would come to Norway if the children were not returned to the applicant. She had also said that her husband, A and B\u2019s paternal grandfather, was very ill and had been hospitalised as a result of the stress of the children being takenaway from the family. These statements showed that the stress on the family as a result of the case did not seem to have diminished, but in fact still seemed to have a strong presence. The paternal grandmother\u2019s statement gave the impression that the children\u2019s fate was the family\u2019s responsibility, and not a matter that just concerned C.","59.Fourthly, the Board considered it unlikely (\u201clite sannsynlig\u201d) that the applicant would be able to protect the children from their father if they were returned to her. When the children were younger, the applicant had repeatedly demonstrated that she was unable to protect herself and the children from C. She had moved back to C several times, despite having reported him to the police for violence against both herself and the children. He could not be prosecuted for these offences because the applicant either withdrew her previous statements or refused to make statements to the police. Since the abduction in 2011, C had contacted the applicant several times, and he had also been violent again. Despite knowing that C was behind the death threats and surveillance of her in the summer of 2013, she now believed that he did not represent a risk. It was difficult to say whether this was what the applicant actually believed or whether it had to do with her wish for the children to be returned to her. In any case, the applicant\u2019s statement indicated that she failed to realise how serious the situation was.","60.The expert\u2019s assessment was that if the applicant were to have care and control of the children then she would probably have to break off all contact with her own family. The Board concurred with the expert\u2019s view. The applicant and C had reportedly grown up in the same neighbourhood, and the families knew each other. At least one member of the applicant\u2019s family had demonstrated that he was willing to carry out unlawful acts on behalf of C. The applicant\u2019s contact with her own family would therefore entail a significant risk of her and the children\u2019s whereabouts becoming known to C. The applicant had stated that she would be willing to break off all contact with her family if the children were returned to her. However, when at the same time she said that C was no longer a threat, it was difficult for the Board to envisage that she would be sufficiently motivated to make such a sacrifice. In the Board\u2019s assessment, C represented such a significant threat that the children would probably be at risk, even if the applicant managed to break off contact with her family. The Board referred to how C had over a period of several years demonstrated that he had both the means and the will to carry out his wishes. His rape of the applicant in March 2012, and the surveillance and death threats against her via an accomplice in the summer of 2013 showed that he had learnt nothing from the abduction in 2011. On the basis of the factors set out above, the Board assumed that, for the foreseeable future, C appeared to be prepared to use unlawful means to gain control over the applicant and the children.","61.It had been argued before the Board, particularly by C\u2019s counsel, that the risk to the children would be lesser if they were with their applicant rather than placed in a foster family. The reasons given for this were that C and his family wanted the children to be returned to the applicant, and they would then be satisfied with the situation. The Board did not rule out the possibility that C and his family would be satisfied for a while and thus not represent any immediate threat if the children were returned. However, this had to be regarded as highly uncertain, and it would in any case depend entirely on how the applicant chose to live her life with the children. If she were to deviate from what was expected of her regarding how the children were raised, the children would again be at risk. Reference was made to the comment in the expert report that the children in a Kurdish family belonged to the father\u2019s family, and that, for example, the actions of an adult or sexually mature daughter would have a bearing on the whole family\u2019s honour.","62.Overall, the Board found that it had been substantiated that the risk of the children and\/or the applicant being subjected to criminal offences by C had remained virtually unchanged since the High Court had considered this issue in October 2012 (see paragraph 38 above). This meant that the risk associated with disclosing A and B\u2019s whereabouts had not decreased, even if C was currently in Iraq. The parents had argued that no attempts to abduct the children had been made since 2011, and this showed that the risk was significantly reduced. The Board did not share this view. According to the Board\u2019s assessment, this was because the children\u2019s whereabouts had not been disclosed and there had been a comprehensive security regime in place since July 2011.","63.On the basis of the above, the Board concluded that the applicant had to be deemed permanently unable to provide the children with proper care, and falling within the scope of section 4-20 of the Child Welfare Act (see paragraph 114 below). This assessment also meant that her application for revocation of the care order pursuant to section 4-21 could not be granted.","64.Since the Board concluded that the applicant was unable to provide proper care, it was not necessary to discuss whether the attachment criterion in section 4-20 of the Child Welfare Act (see paragraph 114 below) was also satisfied. Considering how serious the case was and its profound importance to the parties involved, the Board nevertheless found grounds to discuss this issue, and started its assessment by seeking to clarify the children\u2019s functioning and care needs.","65.The Board noted that A, the oldest daughter, had shown a lot of anger and had acted out during her initial period in foster care. She had been insecure, had not wanted her foster parents to leave her, and had slept next to her foster mother at night. She had wanted constant reassurance that she was to live in the foster home forever. This had improved considerably from approximately March 2013. Most of the anxiety had now gone, and the foster home interpreted this to mean that A now felt certain that she would not have to leave the foster home. A disliked events involving big crowds, such as end-of-term events. She had taken part in a leisure activity, but had stopped because she preferred to stay at home. The appointed psychologist, B.S., had stated before the Board that A had spontaneously told him during his visits that thieves had tried to steal her. The foster parents had told him later that A had not talked about this for a long time, and that they never talked about the abduction with A. The expert\u2019s interpretation was that A still appeared to have memories of her abduction. He also assumed that she had memories of her parents\u2019 turbulent marriage, since she was nearly three years old at the time of her emergency placement.","66.Furthermore, the Board took into account that A had had several temporary placements, and psychologist B.S. had found her to be highly vulnerable with regard to new broken relationships. In his opinion, losing her foster parents would be a traumatic experience for A.","67.The other daughter, B, had been six months old when placed in emergency care. She had arrived in the foster home when she was about a year old. The foster parents described her as a timid girl who only wanted to sit on her foster mother\u2019s lap. She would not let anyone get close to her except her foster mother, who could never leave a room without B following her. Gradually, the foster father had been allowed to get closer to her, first by sitting next to them while B sat on her foster mother\u2019s lap. Even at the time of the Board\u2019s decision, B had an extreme fear of losing her foster parents. In the autumn of 2013 the foster parents had gone away for the weekend. B had been to stay with an aunt who had children of the same age and whom B knew well and was fond of. The foster parents had prepared her thoroughly, telling her that they were going away for a few days, but that they would come back. When they had come to collect her, B had reacted with hysterical laughter that had turned into sobbing and crying. She had clung to her foster mother and repeated over and over again that they must never leave her again. Even now, four months later, B was still back at the stage where both the foster parents could not leave the room at once. She woke up two or three times during the night and said \u201cmummy\u201d, quietly at first. If she did not get a response immediately, she would stand up and shout \u201cmummy\u201d in a frightened voice.","68.In his report, B.S. had concluded that A and B basically had normal abilities and were resourceful children who had developed well cognitively, socially and in terms of their motor skills. However, the children\u2019s previous experiences of their violent father, their dramatic abduction and broken relationships had made them particularly vulnerable with regard to new broken relationships.","69.The expert had described to the Board a strong, secure and good attachment between the children and their foster parents. B had been living in the foster home since she was one year old, and she saw the foster parents as her mother and father. The same applied to A, even though she was three years old when placed in the foster home. She knew that she had another mother who loved her, but her strong attachment was to her foster home. The Board concurred with the expert\u2019s assessment, and found that the children had become strongly attached to the people with whom they were living and the environment in which they were living. In the Board\u2019s view, removing the children from their foster homes would constitute a serious trauma with the potential to do great harm. Both alternative conditions in the third paragraph of section 4-20 of the Child Welfare Act (see paragraph114 below) were thus deemed to be fulfilled.","2.The Board\u2019s decision on adoption","70.As to adoption, the Board initially observed that the central question in the case was whether adoption would be in the children\u2019s best interests. Adoption was a highly invasive measure and, pursuant to case-law, particularly compelling reasons were required for consent to adoption to be granted against the biological parents\u2019 wishes. The decision had to be based on a concrete assessment, but also on general experience, as set out by the Supreme Court in a judgment reported in Norsk Retstidende (Rt.) 2007 page561 (later brought before the Court, see Aune v. Norway, no.52502\/07, 28October 2010 and paragraph 117 below):","\u201cIn my opinion, a clear distinction cannot be drawn between general experience and individual considerations; general experience can be expressed with varying degrees of nuance, for example, based on the child\u2019s age when it was placed in the foster home and how long the placement has lasted and will last. The expert witness in this case has stated that, in his general experience, a foster home relationship is not the preferable option for the long-term placement of children who go to the foster home before forming an attachment to a biological parent; in such cases, adoption is in the child\u2019s best interests. In my opinion, considerable importance must be attached to such general, but nuanced experience. However, individual circumstances \u2013 which could weigh for or against adoption \u2013 must also be assessed in relation to general experience.\u201d","71.The Board found the strict conditions set out by the Supreme Court fulfilled in this case.","72.Research showed that adoption would generally give a stronger sense of security and belonging in a family situation than a foster placement. An adoption removed all doubts about where a child would grow up, and normally strengthened the attachment between the child and the adoptive parents. It was the Board\u2019s assessment that this general experience also applied in the present case.","73.It was normally beneficial for children to have contact with their parents, even in cases where children had to live outside the home for various reasons. In principle, an adoption broke all legal ties between a child and his or her parents, and any continued contact with the biological family would normally be dependent on the adoptive parents\u2019 ability and wish to maintain such contact.","74.Since the abduction, and following the Board\u2019s decision of 24June 2011 (see paragraph 31 above), there had been no contact sessions between A and B and their parents for nearly three years at the time of the Board\u2019s decision of 25 February 2014. The Board therefore found that it had to be deemed that there was little attachment between the applicant and the children. This was particularly so in B\u2019s case, who was only six months old at the time of her placement in care on an emergency basis. After the emergency placement, B had had contact sessions with the applicant for about six months, but they had ended following the abduction. Therefore, no attachment could be said to exist between the applicant and B in a psychological sense. A, who had lived with the applicant for nearly three years, would probably have an attachment to her. However, this attachment also had to be deemed considerably weakened as a result of the prolonged interruption of contact. In addition, the attachment between the applicant and A probably had to be deemed tinged by a certain amount of insecurity as a result of the family situation with the violent father.","75.In addition to the significantly weakened attachment, authorities that had previously considered the case had concluded that the high risk involved meant that contact between the children and their parents was not an option. The Board concurred with this assessment and found that it still applied. Stopping contact would therefore not have any major immediate consequences for the children, and such consequences, seen in isolation, did not constitute a strong argument against adoption. The security situation meant that the children\u2019s cultural background could not be maintained without a risk of their identities being exposed, and therefore cultural considerations could not be a strong argument against adoption either.","76.The Board also found that the general arguments in favour of adoption applied to both A and B. In the Board\u2019s opinion, the extraordinary circumstances of their placement and the security situation gave added weight to these arguments. Adoption had clear advantages with regard to security. The children would be able to use their new names, which would mean that the risk of their identities being exposed would be significantly reduced. The foster families currently lived under a fairly strict security regime under which, for example, they could not leave the municipality without informing the police. The police\u2019s assessment was that the risk of another kidnapping remained high, and it was unavoidable that this would have a big impact on A and B\u2019s lives. Although adoption would not remove the risk entirely, the reduced risk of the children\u2019s identities being exposed would be highly beneficial.","77.Based on the above factors, the Board found that adoption would be in A and B\u2019s best interests and that consent for adoption should be granted.","78.The foster parents\u2019 identities were not known to the Board, and owing to security concerns they had not testified before it. This was largely why the Board had appointed expert B.S. to assess the foster parents\u2019 suitability.","79.The foster parents had had daily care and control of A and B for nearly three years, which had to be considered a sufficient period in terms of assessing their suitability.","80.B.S., the psychologist, had spoken very highly of the way the foster parents cared for A and B. He had described both foster homes of the two daughters as characterised by warmth, generosity and sensitivity to the children\u2019s needs. A\u2019s foster parents\u2019 counsellor had told B.S. that she considered the foster parents well suited as adoptive parents. Both children had developed a strong and secure attachment to their foster parents. They received the daily care, personal contact and security that they needed. The foster parents\u2019 suitability for the task had not been contested either \u2013 either by the applicant or by C. The Board saw no reason to doubt that the foster parents would also continue to take good care of A and B in the future, and that they were fit to bring up the children as their own. Owing to the children\u2019s age and development, obtaining their opinion was not an option.","81.Based on the above, the Board found that the conditions set out in the Child Welfare Act were satisfied.","82.In order to grant consent to the children\u2019s adoption, the Board also had to make a formal decision to remove the parents\u2019 parental responsibility. The Board endorsed the municipal child welfare authorities\u2019 proposal on this point, since removal of parental responsibility was necessary and in the children\u2019s best interests. On this basis, the Board consented to adoption in the parents\u2019 stead.","3.The Board\u2019s decision on contact visits","83.The Board observed that the child welfare authorities had not proposed that there be an order on contact visits following the children\u2019s adoption, because of the security situation, and the applicant had argued that failing to ask the foster parents whether they would consent to her having contact constituted a procedural error.","84.However, the Board found that even if the foster parents had given their consent for contact visits, that would be irrelevant, because such contact would entail too great a security risk. It had been clearly substantiated that there was a risk that C would try to find the children if there was provision for contact visits. Even if the applicant was prepared not to disclose information, the children could easily disclose information that would reveal their whereabouts and new names during contact with the mother. In the Board\u2019s opinion, the applicant would be at great risk of violence and threats from the father, in order for her to disclose such information. Contact visits could therefore not be considered in the children\u2019s best interests.","4.The City Court\u2019s judgment","85.Both parents requested that the case be reviewed by the City Court.","86.The City Court reappointed B.S. as an expert. He delivered an updated report on 14 August 2014. Composed of one professional judge, one psychologist and one layperson, in accordance with section 36-4 of the Dispute Act (see paragraph 121 below), the City Court heard the case on 26 and 27 August 2014. The applicant attended with her legal aid counsel and testified. C\u2019s counsel attended, whilst C gave evidence by telephone from Iraq. The court-appointed expert was present on the second day of the hearing, and gave evidence.","87.In its judgment of 9 September 2014, the City Court stated that removal of parental responsibility and adoption against the parents\u2019 wishes under section 4-20 of the Child Welfare Act were very serious and invasive measures that required compelling reasons. The best interests of the children were the most important aspect, and the decision had to take account of this.","88.The City Court agreed with the Board that removal of parental responsibility and adoption was nevertheless necessary in this case, and referred to the thorough grounds given by the Board for its decision.","89.In addition, the City Court noted that the applicant\u2019s situation had improved since the Board\u2019s hearing. She had shown steady positive development and established an independent life for herself after the final breakdown of her relationship with C. The applicant was taking Norwegian language classes and undergoing training in order to improve her employment prospects. There was general agreement that, with assistance measures, she had the ability to care for children, but not two children with so traumatic a background as A and B.","90.The girls had had many traumatic experiences. There was no doubt that C had committed serious violence against the applicant in the presence of the girls on a number of occasions. They had had to flee to different crisis centres together with the applicant. They had also moved back to a violent father with her. This had clearly been frightening for them and they were both marked by the experience, even today.","91.The girls had been abducted by masked men during a contact session with the applicant. The men had injured the applicant, who had been hospitalised. The abduction had been planned by C, and the girls had been found with him in a flat in H. The plan had been to take the girls to Iraq. The abduction that their own father had put them through must have been a very frightening experience for them, one whose after-effects they were still struggling with.","92.The abduction had resulted in broken relationships with their emergency foster parents when the girls had been placed in new emergency foster homes. That had necessarily been followed by another rupture when they had been placed in foster homes. As a result of their background, both girls had suffered from separation anxiety but had now become strongly attached to their foster parents. They clung to them and were afraid of losing their foster parents.","93.The City Court reiterated the following from B.S.\u2019s report of 14August 2014:","\u201cThe ability to provide care must always be assessed in relation to the children\u2019s care needs. A and B have a history and display behaviour that means that they can no longer be assumed to just have the same ordinary care needs as other children their age. If the mother were to have care and control of the children, she would have to deal with the extensive additional challenges that returning them [to her] would entail. The mother\u2019s ability to reflect on the children\u2019s history and special needs seems to be limited. The expert has strong doubts as to whether the mother\u2019s ability to provide care is sufficient to meet A and B\u2019s needs in the short and long term. Returning them [to her] is therefore not assumed to be a realistic alternative if consideration for the children\u2019s best interests is to be the deciding factor.\u201d","94.Before the City Court, expert B.S. upheld the recommendations he had made to the Board in his report of 31 January 2014 (see paragraphs43 and 53 above).","95.After visiting the children in their foster homes in January 2014, he had made the following statement in that respect about the children\u2019s attachment to their foster parents:","\u201cWhen [I] last visited the foster homes, the children had started to form an attachment to their foster parents. This process has now progressed much further. [My] observations, the foster parents\u2019 statements and the foster home counsellor\u2019s assessments all point in the same direction: A and B have established strong attachments to their foster parents and perceive them as their psychological parents [(\u201csine psykologiske foreldre\u201d)].","The interaction between A and her foster parents was characterised by a calm, warm and intimate atmosphere. [She] related to the foster parents in the way you would expect of a child with a secure attachment to her parents. The foster parents were attentive and responded to her input, but were also clear about their expectations of her.","B primarily related to the foster mother as her secure base for exploration. She was verbally active and spoke well, using varied language. She gave clear signals of what she wanted. The atmosphere in B\u2019s home and the interaction between her and her foster parents were the same as for A: calm, pleasant and characterised by warmth and closeness.","The children basically have normal abilities and are resourceful children who have developed well cognitively, linguistically, socially and with regard to their motor skills. At the same time, they have had experiences of an unusually frightening nature. They have experienced violence committed by the father against the mother, which is today considered to be as harmful to children as their being victims of violence themselves. The children may also have suffered violence at the hands of their father. Then came the broken relationship when they were taken into care, the dramatic abduction, the emergency foster home placement, and finally the foster home placement. Although the children do not have memories of these events that enable them to tell a coherent story, many observations show that they both have fragmentary memories. A\u2019s story about thieves who wanted to steal her in the other country and B\u2019s fear of a bad man can be assumed to be rooted in such memories.","These experiences have left the children particularly vulnerable to new broken relationships. They both display intense separation anxiety and cling to their foster parents. A has begun to relax more and seems to have achieved a sense of security that \u201cmummy\u201d and \u201cdaddy\u201d will always be there. B is in a new clingy period, triggered by the foster parents being away from her for a few nights some months ago.","In [my] opinion, there is no doubt that the children have a strong attachment to the people with whom they are living and the environment in which they are living. Being removed from them would constitute a serious trauma with the potential to do great harm, not least because of the vulnerability they have developed as a result of their experiences before the placement.\u201d","96.The City Court deemed it out of the question to expose the children to the risk that returning them to the applicant would entail, and found that the conditions for this were not satisfied. They had not had any contact with their mother since the abduction on 21 June 2011. At the time of the court\u2019s examination, they had no attachment to her. The City Court had no doubt that the children had such an attachment to their foster parents that it would be harmful to them to be removed.","97.Agreeing with the court-appointed expert, the City Court found it completely improbable (\u201chelt usannsynlig\u201d) that the parents would at any point in the future be in a position to make use of or exercise their parental responsibility. The situation was permanent, and it was in the children\u2019s best interests that the foster parents be given parental responsibility for them.","98.It was sufficient for the removal of parental responsibility that the alternative requirement regarding attachment (as referred to in section 4-21 of the Child Welfare Act, see paragraph 114 below) was satisfied. The City Court nevertheless commented that there was still a risk with respect to C and his family. C had stated that the children meant everything to him, and the City Court did not rule out the possibility that he might make another attempt to take them to the Kurdistan-area if he found out about their whereabouts. The risk of this would increase significantly if the applicant were granted contact with her daughters again.","99.The police had carried out a new threat assessment before the main hearing in August 2014. The following was stated in their report:","\u201cThere is little doubt that the mother in particular, but possibly also the father, will continue to fight for parental responsibility in respect of their children. However, the police consider it improbable that they will find out where the children are under the current circumstances. The children are young and cannot make contact with the mother or father themselves.","However, one should not underestimate the will the father has demonstrated to get his children back. The abduction on 21 June 2011 probably required a lot of planning, and he put considerable resources into executing the plan. In addition, the abduction showed a willingness to use violent means to achieve his goals.","The father himself stated to the police that he hired people to carry out the abduction. It is unclear what role the mother played in this, but given that she brought a large sum of money and a lot of clothes and other equipment to the meeting on 21 June 2011, it is not inconceivable that she might have known more than she told the police.\u201d","100.The police had concluded that the threat level was moderate at that time because the parents did not know the children\u2019s whereabouts, but that this could change. The following had been stated in the conclusion:","\u201cWhen applications are lodged for contact with the children, the threat situation could change significantly. The children have now reached an age where they could easily reveal the names of their foster parents and where they live. This applies regardless of where and how contact sessions are held. In addition, it is highly probable that the father, if he finds out that the mother has been granted contact with the children, may become active again. It is known that, in certain cultures, the father has a \u2018right\u2019 to the children when a marriage breaks down or similar situations arise. It was also an issue that he wanted to send the children back to his home country.\u201d","101.The City Court found that it had been proved that a threat still existed which made it imperative to protect the children. It did not trust the applicant to be able to protect them against C if he were to become aware that she had contact with them. Nor did it trust C to accept that the children should remain in their foster homes. He had previously used accomplices and could do so again. Members of his own family could help him to take the children to the Kurdistan-area. In return for payment from C, the applicant\u2019s half-brother had also tried to threaten her into returning to their home country.","102.The children could not be subjected to the risk of being abducted and taken to Iraq by people who were strangers to them. The City Court therefore also agreed to their identities remaining secret. This meant that there could be no contact with the applicant for fear that someone could reveal where they were living. If contact sessions were to take place, it would not be difficult to follow them home, regardless of what security measures were put in place.","103.The City Court also agreed with the child welfare authorities that adoption offered many advantages compared with placement in a permanent foster home (see paragraph 76 above). Adoption provided a higher degree of stability (\u201ctrygghet\u201d), both for the foster parents and for the children. This was true in general, but it was particularly important to A and B, considering their history (\u201cbakgrunn\u201d). In this connection, it also had to be taken into consideration that the strict security measures that had been put in place to prevent another abduction had to be maintained. The children had changed their names and lived at secret addresses.","104.The foster parents had a strong wish to adopt the girls. According to the court-appointed psychologist, B.S., both girls had been particularly lucky with their foster home placements.","5.Leave-to-appeal proceedings","105.Both parents appealed to the High Court against the City Court\u2019s judgment. The applicant\u2019s appeal was not directed against the decision not to discontinue public care. In her declaration of appeal, she stated that she accepted that it had been a long time since her two children had been placed in their foster homes and that, having regard to their attachment at the time, she would not maintain the claim that they be returned to her. She appealed against the decision to remove her parental authority and authorise the children\u2019s adoption, and requested that the High Court grant her visiting rights.","106.In a decision of 8 December 2014, the High Court unanimously refused to give the parents leave to appeal.","107.The High Court noted that the reasons given for the City Court\u2019s judgment were relatively brief, but this was because that court had concurred with the reasons given by the Board. When looking at the Board\u2019s decision and the City Court\u2019s judgment jointly, there was no doubt (\u201cutvilsomt\u201d) that the children\u2019s best interests had been considered in a satisfactory and adequate manner.","108.On the basis of the concrete circumstances of the case, the High Court considered that the decision was not flawed because the significance of the children\u2019s cultural background and identity had not been considered separately in the decision regarding what would be in their best interests. The same went for the question of sibling identity. The High Court found it clear that deciding to remove the parents\u2019 parental responsibility and granting consent to the children\u2019s adoption in this case was not in breach of Article8 of the Convention or Articles 3 and 9 of the UN Convention on the Rights of the Child.","109.As regards the assessment of the children\u2019s future situation with regard to security, the outcome was not central to the question of removal of parental responsibility and consent to adoption. As stated by the City Court, it was sufficient for the alternative requirement regarding attachment to be satisfied (see paragraph 98 above). This was not considered to be in dispute. Reference was made to the fact that before the High Court the applicant was no longer applying for the care order to be revoked, in view of the children\u2019s attachment to their foster homes.","110.In any event, the High Court was of the view that there were no serious flaws in the City Court\u2019s assessment of the security situation. It did not constitute a procedural error that this question had not been examined further and that no expert witnesses with particular expertise in the foreign culture aspects of the case had been appointed.","111.Based on the concrete circumstances of the case, in particular the fact that the children had been violently abducted in 2011 and the applicant had been subjected to serious threats initiated by C as recently as 2013, there was, in the High Court\u2019s opinion, nothing to indicate that a further examination of the children\u2019s security situation would have led to a different conclusion. The City Court had based its assessment on the police\u2019s assessment that the level of threat against the children was currently moderate, since the parents did not know their whereabouts, but that the situation could change. The City Court had then carried out a concrete assessment of whether contact with the applicant could entail a risk of C initiating an abduction. In the High Court\u2019s view, this assessment had not been flawed, either in terms of the assessment of the evidence or the application of the law.","112.The applicant appealed against the High Court\u2019s refusal to grant her leave to appeal to the Supreme Court.","113.On 5 February 2015 the Supreme Court\u2019s Committee on Leave to Appeal, composed of three Supreme Court Justices, rejected the appeal, unanimously finding that it had no prospects of success."],"78":["5.The applicant was born in 1977 and lives in Kranj.","A.The investigation","6.In 2006 the Swiss law-enforcement authorities of the Canton of Valais conducted a monitoring exercise of users of the so-called \u201cRazorback\u201d network. The Swiss police established that some of the users owned and exchanged child pornography in the form of pictures or videos. Files containing illegal content were exchanged through the so-called \u201cp2p\u201d (peer-to-peer) file-sharing network in which each of the connected computers acted as both a client and a server. Hence, each user could access all files made available for sharing by other users of the network and download them for his or her use. Among the dynamic Internet Protocol (\u201cIP\u201d) addresses recorded by the Swiss police was also a certain dynamic IP address, which was later linked to the applicant.","7.Based on the data obtained by the Swiss police, on 7 August 2006 the Slovenian police, without obtaining a court order, requested company S., a Slovenian Internet service provider (hereinafter \u201cthe ISP\u201d), to disclose data regarding the user to whom the above-mentioned IPaddress had been assigned at 1.28 p.m. on 20February 2006. The police based their request on section 149b(3) of the Criminal Procedure Act (hereinafter \u201cthe CPA\u201d, see paragraph 36 below), which required the operators of electronic communication networks to disclose to the police information on the owners or users of certain means of electronic communication whose details were not available in the relevant directory. In response, on 10August2006 the ISP gave the police the name and address of the applicant\u2019s father, who was a subscriber to the Internet service relating to the respective IP address.","8.On 12 December 2006 the police proposed that the Kranj District State Prosecutor\u2019s Office request the investigating judge of the Kranj District Court to issue an order demanding that the ISP disclose both the personal data of the subscriber and traffic data linked to the IP address in question. On 14 December 2006 such a court order was obtained on the basis of section 149b(1) of the CPA and the ISP gave the police the required data.","9.On 12 January 2007 the investigating judge of the Kranj District Court issued an order to carry out a house search of the applicant\u2019s family home. The order indicated the applicant\u2019s father as the suspect. During the house search the police and the investigating judge of the Kranj District Court seized four computers and later made copies of their hard disks.","10.Based on a conversation with the applicant\u2019s family members, of which no record is available, the police changed the suspect to the applicant.","11.Reviewing the hard disks, the police found that one of them contained files with pornographic material involving minors. The police established that the applicant had installed eMule, a file-sharing program, on one of the computers by means of which he had been able to download different files from other users of the program and had also automatically offered and distributed his own files to them. Among the files downloaded by the applicant, a small percentage had contained child pornography.","12.On 26 November 2007 the Kranj District prosecutor requested that a judicial investigation be opened against the applicant.","13.In his defence before the investigating judge, the applicant argued, inter alia, that he had not been aware of the content of the files in question. He also argued that the ISP had unlawfully, without a judicial warrant, passed his data, including his address, to the police.","14.On 5 March 2008 the investigating judge of the Kranj District Court, opened a judicial investigation against the applicant on the basis of a reasonable suspicion that he had committed the criminal offence of displaying, manufacturing, possessing and distributing pornographic material under section 187(3) of the Criminal Code. The judge noted, among other things, that the applicant\u2019s father had been the holder of the identified IP address and that the applicant had allegedly been logging into the respective program under the name of \u201cBenet\u201d.","15.On 17 March 2008 the applicant\u2019s counsel lodged an appeal against the decision to open a judicial investigation. He argued, inter alia, that the evidence concerning the identity of the user of the respective IP address had been obtained unlawfully. That information concerned the traffic data and should therefore not have been obtained without a judicial warrant.","16.On 21 March 2008 an interlocutory panel of the court rejected the appeal finding that, although counsel had argued that the identity of the user of the IP address had been obtained unlawfully, he had not requested that certain documents be excluded from the file.","B.The trial","17.On 29 May 2008, the Kranj District State Prosecutor\u2019s Office lodged an indictment against the applicant for the above-mentioned criminal offence.","18.At the hearing of 8 October 2008 the applicant lodged a written request for exclusion of evidence obtained unlawfully, including the information concerning the user of the respective IP address obtained without a court order.","19.On 5 December 2008 the court rejected the applicant\u2019s request, finding that the data concerning the user of the respective IP address had been obtained in compliance with section 149b(3) of the CPA.","20.On 5 December 2008 the Kranj District Court found the applicant guilty of the criminal offence with which he had been charged. Based on the opinion of an expert in computer science, the District Court held that the applicant must have been aware of the 630 pornographic pictures and 199 videos involving minors which he had downloaded through p2p networks and made available for sharing with other users. The applicant was sentenced to a suspended prison term of eight months with a probation period of two years.","C.Proceedings before the Ljubljana Higher Court","21.Both the applicant and the district state prosecutor appealed against the first-instance judgment. The applicant challenged the facts as established by the District Court. He also alleged that the subscriber information the Slovenian police had acquired without a court order, and thus unlawfully, should have been excluded as evidence. Consequently, all the evidence based on such unlawfully acquired data should also have been excluded.","22.On 4 November 2009 the Ljubljana Higher Court granted the appeal of the district state prosecutor in part, converting the applicant\u2019s suspended sentence into a prison term of six months. The applicant\u2019s appeal was dismissed as unfounded. The Higher Court confirmed that the first-instance court had correctly established the facts of the case; moreover, it held that the data concerning the user of the IP address had been obtained lawfully, as no court order was required for such a purpose.","D.Proceedings before the Supreme Court","23.The applicant lodged an appeal on points of law before the Supreme Court, reiterating that a dynamic IP address could not be compared to a telephone number which was not entered in a telephone directory, as a new IP address was assigned to a computer each time the user logged on. Accordingly, such data should be considered as traffic data constituting circumstances and facts connected to the electronic communication and attracting the protection of privacy of communication. The applicant argued that the Swiss police should not have obtained the respective dynamic IP address without a court order, and nor should the Slovenian police have obtained the data on the identity of the subscriber associated with the IP address without such an order.","24.On 20 January 2011 the Supreme Court dismissed the applicant\u2019s appeal on points of law, reasoning that given the general accessibility of websites and the fact that the Swiss police could check the exchanges in the p2p network simply by monitoring the users sharing certain contents, that is without any particular intervention in internet traffic, such communication could not be considered private and thus protected by Article 37 of the Constitution. Moreover, in the Supreme Court\u2019s view, the Slovenian police had not acquired traffic data about the applicant\u2019s electronic communication, but only data regarding the user of a particular computer through which the Internet had been accessed.","E.Proceedings before the Constitutional Court","25.The applicant lodged a constitutional complaint before the Constitutional Court, reiterating the complaints adduced before the lower courts.","26.The Constitutional Court asked the Information Commissioner to express her position on the issue. The Information Commissioner was of the view that the reason for obtaining the identity of an individual user of electronic communication was precisely that he or she communicated by means of more or less publicly accessible websites. In the Information Commissioner\u2019s view, it was impossible to separate traffic data from subscriber data, as traffic data alone did not make any sense if one did not ascertain who the person behind those data was \u2013 this latter information was thus considered to be an extremely important element of communication privacy. The Information Commissioner also highlighted that the provisions of the Electronic Communications Act in force at the material time required a court order regarding all data related to electronic communications, irrespective of whether they related to traffic or identification data. In the Information Commissioner\u2019s view, section 149b (3) of the CPA, which required only a written request from the police to obtain data on who was communicating, was constitutionally problematic.","27.On 13 February 2014 the Constitutional Court dismissed the applicant\u2019s complaint, holding that his constitutional rights had not been violated. The Constitutional Court\u2019s decision was adopted by seven votes to two. Judge J. Sovdat and Judge D. Jadek Pensa wrote dissenting opinions. The decision was served on the applicant on 11 March 2014.","1.The Constitutional Court\u2019s decision","28.The Constitutional Court pointed out, at the outset, that in addition to the content of communications, Article 37 of the Constitution also protected traffic data, that is any data processed for the transmission of communications in an electronic communications network. It considered that IP addresses were included in such traffic data. The Constitutional Court, however, concluded that the applicant, who had not hidden in any way the IP address through which he had accessed the Internet, had consciously exposed himself to the public and could not legitimately have expected privacy. As a result, the data concerning the identity of the user of the IP address were not protected as communication privacy under Article 37 of the Constitution, but only as information privacy under Article 38 of the Constitution, and no court order was required in order to disclose them in the applicant\u2019s case.","29.The most relevant parts of the Constitutional Court\u2019s decision are as follows (as translated into English on the Constitutional Court\u2019s website):","\u201cReview of the objections regarding access to the complainant\u2019s IP address by the Swiss police","11. The second paragraph of Article 37 of the Constitution provides a higher level of protection than Article 8 of the ECHR as it requires a court order for any interference with the right to communication privacy ... The right to communication privacy determined by the first paragraph of Article 37 of the Constitution primarily protects the content of the communicated message. ... In addition to the message content, the circumstances and facts related to the communication are also protected. In accordance with this view, in Decision No.Up-106\/05, dated 2 October 2008 (Official Gazette RS, No. 100\/08, and OdlUS XVII, 84) the Constitutional Court extended the protection provided by Article 37 of the Constitution also to such data regarding telephone calls that by their nature constitute an integral part of communication so that such data cannot be obtained without a court order. The mentioned Decision refers otherwise to telephone communication, but the same conclusion can be applied mutatis mutandis to other types of communication at a distance. The crucial constitutional review test for the review of the Constitutional Court whether a particular communication is protected under Article 37 of the Constitution is the test of the legitimate expectation of privacy.","12. Communication via the internet takes place, in principle, in an anonymous form, which is essential for the free development of personality, freedom of speech, and the expression of ideas, and, consequently, for the development of a free and democratic society. The privacy of communication protected by the strict conditions determined by the second paragraph of Article 37 of the Constitution is therefore a very important human right that is becoming increasingly important due to technological advances and the related growing possibilities of monitoring. It entails individuals\u2019 legitimate expectation that the state will leave them alone also in their communication through modern communication channels and that they do not necessary have to defend themselves for what they do, say, write or think. If there is a suspicion of a criminal offense the Police must have the ability to identify the individuals who have participated in a certain communication related to an alleged criminal offense, because the perpetrators are harder to trace due to this principle of anonymity on the internet. The conditions under which the Police can carry out investigative actions and whether they need a court order, however, depend on whether such entail an interference with the right to communication privacy.","13. As was pointed out above, in addition to the content of communications, Article 37 of the Constitution also protects traffic data. Traffic data signifies any data processed for the transmission of communications in an electronic communications network or for the billing thereof. Such entails that the IP address is a traffic datum. The Constitutional Court must therefore answer the question whether the complainant legitimately expected privacy regarding this datum.","14. Two factors must be weighed in relation to this review: the expectation of privacy regarding the IP address and the legitimacy of this expectation, where the latter must be of such nature that the society is willing to accept it as legitimate. The complainant in the case at issue communicated with other users of the Razorback network by using the eMule application to exchange various files, including those that contained child pornography. With regard to the general anonymity of internet users and also the content of the files, the Constitutional Court has no doubt that the complainant expected that his communications would remain private, and he also certainly expected that his identity would not be disclosed. The question therefore is whether such expectation of privacy was legitimate. The complainant has not established that the IP address through which he accessed the internet was hidden in any way, and thus invisible to other users, or that access to the Razorback network (and thus to the content of the files) was in any way restricted, for example by passwords or other means. ... In contrast, in the complainant\u2019s case anyone interested in exchanging such data could have accessed the contested files, and the complainant has not demonstrated that his IP address was in any way concealed or inaccessible by other users of this network. This leads to the conclusion that this entailed an open line of communication with a previously undetermined circle of strangers using the internet worldwide who have shown interest in sharing certain files, while at the same time access to the IP addresses of other users was not limited to users of this network. Therefore, in the view of the Constitutional Court, the complainant\u2019s expectation of privacy was not legitimate; that which a person knowingly exposes to the public, even if from a home computer and the shelter of his or her own home, cannot be a subject of the protection afforded by Article 37 of the Constitution. In view of the foregoing, the contested standpoint of the Supreme Court does not raise concerns regarding constitutional law. Obtaining the data regarding the complainant\u2019s dynamic IP address does not interfere with his right to communication privacy determined by the first paragraph of Article 37 of the Constitution taking into account all the circumstances of the case, therefore a court order was not necessary to access it. By his conduct the complainant himself waived his right to privacy and therefore could not have a legitimate expectation of privacy therewith.","...","Review of the objections regarding access to data on the user of a certain IP address","16. The complainant also challenges the standpoint of the Supreme Court that by its request to the service provider under the third paragraph of Article 149.b of the CPA the Police did not acquire traffic data, but only data regarding a particular user of a determined means of communication ...","17. In the case at issue, on 7 June 2006, on the basis of the third paragraph of Article 149.b of the CPA, the Police sent a request to the service provider for data regarding the user to whom IP address 195.210.223.200 was assigned on 20 February 2006 at 13:28. In the response, they received data regarding the user\u2019s name, surname, and address, while the time of the communication set to the nearest second was already known. Then on 14 December 2006 the Police also obtained an order issued by the investigating judge on the basis of the first paragraph 149.b of the CPA and the service provider also provided the traffic data on the basis of this order. The main issue for the Constitutional Court at this point is therefore whether obtaining the data regarding the identity of the user of a determined IP address falls within the framework of communication privacy.","18. In accordance with the position of the Constitutional Court in Decision No. Up-106\/05, Article 37 of the Constitution also protects traffic data, i.e. data regarding, for example, who, when, with whom, and how often someone communicated. The identity of the communicating individual is one of the important aspects of communication privacy, therefore it is necessary to obtain a court order for its disclosure in accordance with the second paragraph of Article 37 of the Constitution. Despite this standpoint, the Constitutional Court decided that the complainant\u2019s allegation of a violation of Article 37 of the Constitution is unfounded in the case at issue. By his conduct, the complainant has himself waived protection of his privacy by publicly revealing both his own IP address as well as the content of his communications, and therefore can no longer rely on it as regards the disclosure of his identity. Since by such he also waived the legitimate expectation of privacy, the data regarding the identity of the IP address user no longer enjoyed protection in terms of communication privacy, but only in terms of information privacy determined by Article 38 of the Constitution. Therefore, by obtaining the data on the name, surname, and address of the user of the dynamic IP address through which the complainant communicated the Police did not interfere with his communication privacy and therefore did not require a court order to disclose his identity. In view of the foregoing, the contested position of the Supreme Court is not inconsistent with Article 37 of the Constitution, and the complainant\u2019s complaints in this part are unfounded.\u201d","2.Dissenting opinion by Judge J. Sovdat","30.Judge J. Sovdat welcomed the Constitutional Court\u2019s departure from the Supreme Court\u2019s view that the information concerned had not amounted to traffic data. However, in her view, the police wishing to obtain identification of the subscriber should have requested a court order. She pointed out that the Constitutional Court\u2019s conclusion implied that the protection of privacy of traffic data was always dependent on the protection of the content of communication. Accordingly, traffic data concerning certain communication were protected as long as the content of that communication was protected. Consequently, an individual could not enjoy separate and independent protection of traffic data. Judge Sovdat disagreed with this view, pointing out that the applicant had not appeared in public under his own name, but only through the digits of his dynamic IP address.","31.Judge Sovdat agreed with the Information Commissioner that the police had been interested not in the ownership of the device but in \u201cthe identity of the person communicating and precisely because he had been communicating\u201d. She endorsed the Commissioner\u2019s view that \u201cthe content of communication alone did not have any particular weight in the absence of identification of those communicating\u201d. She also pointed out that under sections 166 and 168 of the new Electronic Communications Act (\u201cECA-1\u201d, see paragraph 39 below), the Internet provider was not allowed to transfer the stored information without a court order. Compared with section 149b(3) of the CPA, the ECA was definitely more recent and therefore the decision of the majority ran contrary to the level of rights protection already achieved.","3.Dissenting opinion by Judge D. Jadek Pensa","32.Judge D. Jadek Pensa argued that the constitutional guarantees set out in Article 37 of the Constitution were aimed at strengthening the expectation of privacy in this area of life and preventing disproportionate interferences and an abuse of power by the executive.","33.As regards the applicant\u2019s expectation of online anonymity, Judge Jadek Pensa argued that none of the data publicly disclosed by the complainant revealed his identity. In her view, anonymity was what prevented the police from linking a particular communication with a particular person \u2013 that is, linking a dynamic IP address and an individual with his or her name and address. She further argued that the question whether the applicant\u2019s manner of communication could lead to the conclusion that his expectation of privacy had not been objectively justified had to be approached by taking all the circumstances into account, including the law that had been in force at the relevant time. She explained that the ECA (sections 103(1(2)), 104(1) and 107 \u2013 see paragraphs 37 below) required Internet providers to delete traffic data as soon as they were no longer needed for the transfer of messages. Moreover, section 107 of the ECA provided that the secrecy of communication could be interfered with only on the basis of a decision by a competent authority. A letter from the police to an Internet provider could not be considered to amount to such a decision. Thus, even if section 149b(3) of the CPA could be interpreted as allowing the police to ask for information on an Internet subscriber, it should not apply in the situations covered by the ECA, which explicitly concerned the \u201cprotection of secrecy and confidentiality of electronic communications\u201d. Otherwise, the legislation would be contradictory. The judge concluded that the applicable legal framework could not therefore have led to the conclusion that the applicant, as a reasonably and sufficiently informed individual, could not have expected privacy; that is, he could not have expected that his anonymity would be protected.","34.Judge Jadek Pensa went on to elaborate on the neutrality of traffic data, such as data on the user of a certain dynamic IP address:","\u201c9. The traffic datum \u2013 the dynamic IP address that was assigned randomly at a given moment \u2013 as I understand it, reveals how the internet was used on some computer, because it is inextricably attached to a specific connection. ... This is because only the two data jointly communicate how the internet was used in a non-anonymised way, i.e. regarding internet use in connection with an identified person. This essential circumstance in my opinion negates the notion of the neutrality of the datum regarding a specific user of services for a certain (known) dynamic IP address that the police sought through the service provider - namely, the neutrality of the datum in terms of denying its ability to communicate anything more than the name and address of a certain person (who has a subscription contract with the service provider). Precisely because this datum is inseparably linked to a specific communication, the traffic datum falls within the scope of protected communication privacy.","10. Even if the service provider communicated to the police \u2018only\u2019 the data identifying a person who had a subscription contract with it, by doing so, as I understand it, the service provider in fact communicated (to put it simply) traffic data in an electronic communications network regarding this person. The police also, as I have already explained, wanted to determine more than just the name and surname of a certain person who had concluded a contract. Since, as I understand it, they asked for traffic data associated with a particular person they would have to proceed according to the first paragraph of Article 149.b of the CPA and obtain an order from the investigating judge.\u201d"],"79":["A.Criminal proceedings against the applicant","5.The applicant was born in 1984 and lives in Berehove.","6.In the early hours of 22 August 2004 M. was robbed and killed in Berehove, where the applicant was also living. On the same date the applicant and two other people, K.A. and St., were arrested on suspicion of robbing and killing M.","7.According to the applicant, he was apprehended by the police task force at about 10 a.m. on 22 August 2004 in the apartment of his girlfriend and taken to the police station, where he was beaten up and threatened in an attempt to force him to confess to the robbery and murder of M.","8.The case file contains two arrest warrants \u2013 one issued by a police officer and another one by the prosecutor investigating the murder (hereinafter \u201cthe investigator\u201d), both indicating that the applicant had been arrested by the above-mentioned officials on 22 August 2004 at 6.30 p.m. at their offices. The arrest warrant issued by the investigator indicates that the applicant acknowledged his guilt, had no observations regarding his arrest and that he wished to be legally represented. It bears the applicant\u2019s signature, with no comments. The lower part of the last page of the record contains a printed statement (\u201c\u0434\u043e\u0432\u0456\u0434\u043a\u0430\u201d) that was added later (it was dated 2007); this additional statement is signed by the investigator only and asserts that the applicant\u2019s relatives were informed of his arrest. The applicant alleged that his family had been informed of his arrest on the evening of the following day (that is to say 23 August 2004).","9.After his arrest, the applicant signed a record, bearing no time, explaining his rights as a suspect, including the right to remain silent and to consult a lawyer before he was first questioned. The relevant entry in the record indicates that the applicant expressed his wish to be represented by S., a lawyer who lived in Uzhhorod, some 70 kilometres from Berehove, and noted the address of the latter.","10.At about 4 p.m. on 22 August 2004, according to the applicant, and from 9 until 10 a.m. on that day, according to the official record, the applicant was questioned as a suspect by the investigator in the presence of B., a lawyer. The record of the questioning noted that the applicant had been informed of his rights as a suspect from 6.30 until 6.45 p.m. on that day and that a separate procedural document existed in this respect evidencing that he had wished to be legally represented. The handwritten entry in the record furthermore stated that the applicant wanted to have B. as his lawyer and that he acknowledged in full his guilt in respect of the robbery and murder. During the questioning, the applicant provided details regarding the robbery and admitted that he had hit M. in the head with a bat during the robbery but that he had done so instinctively, in self-defence. The applicant did not state what had become of the bat \u2013 namely where or in what circumstances he had hidden the bat after the murder. The applicant and B. signed the verbatim record, making no objections as to its contents. B. then left.","11.Later that day, from 8 until 8.30 p.m., the applicant took part in a videotaped reconstruction of the crime in the presence of a forensic expert, an investigator from the local police, two attesting witnesses and the investigator in the case. According to the Government, B. was apparently busy and was not able to participate in the reconstruction. No other lawyer was instructed to assist the applicant during this investigative step. According to the applicant, he repeated his request for S. to be called, but this was not done and he was forced by means of threats to testify.","12.During the reconstruction, which commenced near the place where the bat used for the murder had been hidden, the applicant pointed to the exact place where the bat was; the bat was then uncovered and retained as evidence. A copy of the verbatim record of the reconstruction provided to the Court by the applicant indicates that he was informed of his constitutional right not to incriminate himself. The verbatim record bears a handwritten \u201cnot\u201d next to the following printed \u201cagreed to testify\u201d. The relevant part of the text is not visible on the copy of the record provided by the Government. The record furthermore contains the applicant\u2019s statement that he had not been forced to testify by means of any psychological or physical violence. The applicant signed the record without indicating any objections as to its contents next to his signature.","13.At an unspecified time on the same date St. and K.A were questioned as suspects. St., being represented by B. (the same lawyer who represented the applicant), acknowledged his guilt in respect of the robbery. He stated, inter alia, that he had seen the applicant carrying a bat when they had been entering the victim\u2019s house. K.A., having waived his right to legal assistance, admitted that he had taken part in the robbery. He furthermore participated, still unrepresented, in a videotaped reconstruction of the crime during which he stated, inter alia, that he had seen the applicant with a bat in his hands but had not seen who had murdered M.","14.On 23 August 2004 the investigator appointed B. to represent the applicant, and St., and admitted him to the proceedings.","15.On the same day the applicant, in the presence of B., participated in another videotaped reconstruction of the crime in the victim\u2019s house. Theapplicant admitted his guilt and gave further details about the robbery and murder. He reiterated that he had hit M. on the head with the bat and stated that another suspect in the case had helped him to hide the bat afterwards.","16.On 26 August 2004 the applicant\u2019s mother signed a contract with the lawyer S. concerning her son\u2019s legal representation. On the same date S. contacted the prosecutor, who allowed S. to represent the applicant instead of B. The applicant furthermore made a written statement declaring that he was refusing the services of B. and wanted S. to act as his lawyer.","17.On 8 October 2004 medical experts examined the applicant following his complaint that he had been ill-treated by the police. Noinjuries were discovered on the applicant\u2019s body.","18.On 14 October 2004 the video recording of the reconstruction of the crime of 23 August 2004 was played to the applicant in the presence of S.The applicant retracted his earlier confession and explained that he had only given it because he had been threatened and beaten up by the police on 22 August 2004.","19.On 2 September 2004, and 20 and 28 January and 17 February 2005 the applicant was questioned in the presence of his defence lawyer but refused to give any evidence.","20.On 19 January 2005 the prosecutors refused to institute a criminal investigation into the applicant\u2019s allegation that he had been beaten up by the police, having found the police officers\u2019 actions to be lawful.","21.On 18 February 2005 the pre-trial investigation was completed and the applicant \u2013 together with St. and K.A. \u2013 was charged with robbery and murder. It was established that another person, I.K., had also participated in the robbery, but as he had absconded, he would have to be tried separately.","22.During the trial the applicant denied having participated in the robbery and the murder and refused to give any evidence. He stated that his earlier confessions to the crimes should not be admitted as evidence as they had been made under duress and in breach of his defence rights, including his right to be represented by a lawyer of his own choosing. He also argued that the bat which had been retained as evidence and examined by experts during the investigation had not been the same bat as that which he had pointed out during the reconstruction. He supported his allegation by referring to the fact that in the verbatim record, the prosecutor had described the bat as blue, while the experts who had subsequently examined it had described it as grey.","23.In April 2005 the police detained I.K. In the course of the trial St., A.K. and I.K all pleaded guilty to robbery but denied killing M.","24.On 29 August 2006 the Zakarpattya Regional Court of Appeal, acting as the first-instance court, convicted the applicant of murder and robbery and sentenced him to fifteen years\u2019 imprisonment. St., A.K. and I.K. were also found guilty of robbery but acquitted of murder. The hearing was held in the presence of the applicant\u2019s new lawyer, D., who had replaced the lawyer S. on an unspecified date.","25.The court based the applicant\u2019s conviction, among other evidence, on the confessions he had made during his questioning by the investigator on 22 August 2004, the reconstructions of the crime on 22 and 23 August 2004, the statements of his co-defendants that they had seen him with a bat in M.\u2019s house, and physical evidence, including an expert\u2019s report suggesting that the traces of blood found on the bat (the location of which had been pointed out by the applicant during the reconstruction of the crime on 22 August 2004) could have belonged to M.","26.By the same judgment, the court rejected as unsubstantiated the applicant\u2019s submissions that he had made his self-incriminating statements under duress, referring to the results of the medical examination of 8October 2004 (see paragraph 17 above) and the prosecutors\u2019 decision of 19 January 2005 (see paragraph 20 above).","27.The court also found no violation of the applicant\u2019s defence rights. Itnoted, inter alia, that on 22 August 2004 the prosecutor\u2019s decision to appoint B. as the applicant\u2019s lawyer had been lawful, because at the material time the applicant had not had a contract with S. for legal representation. It also observed that on 22 August 2004 the applicant had raised no objections to the questioning record. The court also suggested, without giving details, that there had been some technical errors in the procedural documents, in particular as regards the time of the applicant\u2019s arrest and questioning, but that they did not affect the fairness of the respective investigative actions.","28.The court refuted the applicant\u2019s allegation that the bat retained as evidence had been switched with another (see paragraph 22 above), noting that the disparity in the bat\u2019s description by the experts and the prosecutor could have been explained by the fact that the latter was colour blind.","29.The applicant lodged an appeal with the Supreme Court on points of law, reiterating his complaints. He stated, in particular, that he had not been represented by the lawyer of his choice, S., on 22 and 23 August 2004, but by B., who had been appointed by the investigator against the applicant\u2019s will. He further stated that he had not been assisted by any lawyer when he had been forced to confess during the crime reconstruction of 22 August 2004. He also complained about the fact that B. had represented him and his co-accused St. at the same time (see paragraph 13 above) \u2013 a conflict of interest (as there had been important discrepancies in their respective statements) that should have prevented him from being allowed to do so.","30.On 12 April 2007 the Supreme Court, acting as the second-instance court, upheld the applicant\u2019s conviction and sentence in his presence. The applicant was not represented by a lawyer during the hearing, but he did not provide any further details in this regard.","31.The Supreme Court found that the applicant\u2019s guilt was proved, inter alia, by the statements he had made during his questioning of 22 August 2004 and during the reconstructions of the crime. It noted in this respect that those statements had been corroborated by other evidence, including the testimony of his co-accused, and concluded that the lower court had correctly admitted the applicant\u2019s self-incriminating statements as evidence. The court also noted that the details of the crime which the applicant had revealed in his statements could not have been known to him unless he had been the direct perpetrator.","32.Without mentioning the applicant\u2019s arguments regarding the alleged breach of his defence rights, the Supreme Court found no procedural violations during the proceedings serious enough to necessitate it quashing the judgment.","33.On an unspecified date the applicant was released from prison."],"80":["1. The applicant in the first case, Mr Bilal Gulamhussein, is a British, Yemeni national, who was born in 1967 and lives in London.","2. The applicant in the second case, Mr Kashif Tariq, is a British national, who was born in 1979 and lives in London. Both applicants were represented before the Court by Slater & Gordon Lawyers, a law firm based in London.","3. The United Kingdom Government (\u201cthe Government\u201d) were represented by their Agents, Mr Paul McKell and Ms Yasmine Ahmed of the Foreign and Commonwealth Office.","A. The circumstances of the cases","4. The facts of the cases, as submitted by the parties, may be summarised as follows.","1. Mr Gulamhussein","5. Mr Gulamhussein was employed by the Home Office as an administrative assistant in the immigration service from 15 November 1999. On 17 January 2000 he obtained the security clearance required for the post. On 1 February 2005 his security clearance was suspended and he was suspended from duty. He was informed that this was because of:","\u201cAssociation with individuals suspected of involvement and support for terrorism overseas, in particular the insurgency in Iraq.\u201d","6. On 21 March 2005 Mr Gulamhussein was informed that the Home Office was minded to withdraw all levels of security clearance. On 4 May 2005 a decision was taken to withdraw all levels of security clearance. On 11 August 2005 his internal appeal was refused. He subsequently appealed to the Security Vetting Appeal Panel (\u201cSVAP\u201d).","7. On 3 August 2005 Mr Gulamhussein also commenced proceedings in the Employment Tribunal. Those proceedings were stayed awaiting the outcome of his appeal to SVAP and then consolidated with a second set of proceedings (see paragraph 17, below).","8. On 3 February 2006 the Home Office submitted its statement of case to the SVAP. It stated that Mr Gulamhussein:","\u201c... had been identified as a close associate of a network of suspected Islamic extremists who were assessed to be supporting the insurgency in Iraq.\u201d","9. The proceedings before the SVAP comprised an open stage, in which Mr Gulamhussein and his legal representatives could participate, and a closed stage, from which they were excluded. A special advocate was appointed to represent his interests as regards the closed material submitted in the case. However, he could only take instructions from Mr Gulamhussein before he had seen the closed material. After this point, the special advocate was precluded from meeting the applicant and taking instructions from him in relation to it.","10. At a hearing on 20 November 2009 the SVAP heard submissions from Mr Gulamhussein in which he argued that Article 6 applied to proceedings before the SVAP and challenged the procedures before the SVAP as being contrary to Article 6 of the Convention, relying on this Court \u2019 s judgment in A. and Others v. the United Kingdom [GC], no. 3455\/05, ECHR 2009.","11. On 16 February 2010 the SVAP sent its ruling to Mr Gulamhussein \u2019 s solicitors. It held that Article 6 did not apply to proceedings before it because it was only able to make recommendations and not decisions, so the proceedings did not determine Mr Gulamhussein \u2019 s rights. It further considered that developments which had taken place in the Court \u2019 s case-law as regards the rights of civil servants (see Vilho Eskelinen and Others v. Finland [GC], no. 63235\/00, ECHR 2007 \u2011 II) were not directly applicable as the present case concerned a special category of employment which required specific security clearance. It referred to the Commission decision in Leander v. Sweden, (no. 9248\/81, Commission decision of 10 October 1983, Decisions and Reports 34, p. 78), which dealt specifically with a security vetting procedure, in which the complaint under Article 6 \u00a7 1 was found to be inadmissible. In the circumstances it was not strictly necessary to consider whether the requirements of fairness demanded the approach to disclosure set out by this Court in A. and Others. However, the SVAP indicated that even if, contrary to what it had decided, Article 6 did apply to the proceedings, the approach to disclosure set out in A. and Others, cited above, was not required to comply with that Article.","12. On 12 October 2010 the SVAP heard Mr Gulamhussein \u2019 s appeal. The proceedings began with an open hearing at which he was legally represented by counsel and by a solicitor. A special advocate was present. No information about the case against Mr Gulamhussein was provided at the open hearing. It is understood that following the open hearing, a closed hearing took place.","13. On 25 January 2011 the SVAP sent its decision to the solicitors for Mr Gulamhussein. It rejected Mr Gulamhussein \u2019 s appeal and recommended that the refusal of security clearance should stand. It stated that:","\u201cThe Panel has had the opportunity to review in depth the sensitive information on which the decision to withdraw security clearance was based. It is satisfied that the information is reliable and was properly assessed by those involved in the vetting process and provides a sufficient basis for the reasons given to the appellant. In light of this, and with regard to the sensitivity of the post occupied by the appellant, the Panel is satisfied that the decision to withdraw SC clearance was a proper one ...\u201d","14. On 21 April 2011 Mr Gulamhussein lodged judicial review proceedings in respect of the decisions of the SVAP, arguing that they violated Article 6 of the Convention. On 7 July 2011 the judicial review proceedings were stayed pending a judgment of the Supreme Court in Mr Tariq \u2019 s case (see paragraph 35 below).","15. On 13 May 2011 the Home Office terminated Mr Gulamhussein \u2019 s employment as he did not have security clearance.","16. On 13 July 2011 the Supreme Court dismissed Mr Tariq \u2019 s appeal. Mr Gulamhussein \u2019 s subsequently withdrew his claim for judicial review.","17. On 4 August 2011 Mr Gulamhussein brought proceedings in the Employment Tribunals claiming direct and indirect race and religious discrimination, and unfair dismissal. These claims are the subject of a separate application to this Court, (see Gulamhussein v. the United Kingdom [dec.] no.18509\/13, 3 April 2018 ).","2. Mr Tariq","18. Mr Tariq started employment with the Home Office as an immigration officer on 21 April 2003, having received the necessary security clearance on 18 February 2003.","19. On 10 August 2006 Mr Tariq \u2019 s brother and cousin were arrested during a major counter-terrorism investigation into a suspected plot to mount a terrorist attack on transatlantic flights. On 11 August 2006 inquiries were made to establish whether Mr Tariq was involved with the plot in any way. It was concluded that there was no information to suggest that Mr Tariq had himself been involved in any terrorism plot.","20. On 19 August 2006 Mr Tariq was suspended from duty on basic pay while consideration was given to the withdrawal of his security clearance on national security grounds. On 24 August 2006 Mr Tariq \u2019 s brother was released without charge; his cousin was later convicted, in September 2008, of conspiracy to murder.","21. On 30 August 2006 Mr Tariq was advised that the review of his security clearance had been prompted by national security concerns and that these related to his vulnerability. On 20 December 2006 the applicant was advised by letter that his security clearance had been withdrawn. The letter stated:","\u201cThe reason for the withdrawal of your security clearance is your close association with individuals suspected of involvement in plans to mount terrorist attacks. Association with such individuals may put you at risk of their attempting to exert undue influence to abuse your position.\u201d","22. Mr Tariq lodged an internal appeal against the decision on 16 January 2007. Mr Tariq was informed by letter dated 9 August 2007 that his appeal had been dismissed.","23. On 4 September 2007 Mr Tariq submitted a further appeal to the SVAP. It was eventually heard and dismissed on 24 November 2010.","24. Meanwhile, on 15 March 2007, Mr Tariq commenced Employment Tribunal proceedings claiming discrimination on grounds of race and\/or religion, contrary to the Race Relations Act 1976 and the Employment Equality (Religion and Belief) Regulations 2003.","25. On 10 July 2007 Mr Tariq supplied further particulars of the discrimination alleged. He contended, inter alia, that the Home Office had relied upon stereotypical assumptions about him and\/or Muslims and\/or individuals of Pakistani origin such as susceptibility to undue influence, coercion or \u201cbrainwashing\u201d and had indirectly discriminatory security policies, procedures and methods of investigation. The Home Office in its grounds of resistance dated 6 August 2007 denied this and maintained that it acted throughout to protect national security. It explained that there were concerns in August 2006:","\u201cthat [Mr Tariq] could be vulnerable to an approach to determine if terrorist suspects had been flagged to the authorities or to smuggle prohibited items airside.\u201d","26. Mr Tariq was supplied with a bundle of papers (\u201cthe open bundle\u201d). The Home Office indicated that a further bundle of papers (\u201cthe closed bundle\u201d) would be made available only to the Employment Tribunal and any special advocate appointed.","27. Mr Tariq subsequently sought further disclosure from the Home Office regarding the basis of its security concerns. For the most part, the Home Office responded that for national security reasons it could provide no further information than that contained in the open bundle.","28. The Home Office subsequently made an application to the Employment Tribunal, asking it to order a closed material procedure with a special advocate under the discretionary power conferred by rule 54(2) of the Employment Tribunals Rules of Procedure (see \u201cRelevant domestic law and practice\u201d, below). Representations were heard from both parties on 10 January 2008. The Employment Tribunal concluded, in an order dated 15 February 2008, that it was expedient in the interest of national security to make orders under rule 54 that the whole of the proceedings be in private; that Mr Tariq and his representative be excluded from part of the proceedings when closed evidence and\/or documents were being considered; and that the Employment Tribunal consider both open and closed documents and that the Home Office would make available the appropriate closed material to any special advocate appointed.","29. A special advocate was subsequently appointed by the Attorney General.","30. The reasons for the Tribunal \u2019 s decision of 15 February 2008 were submitted to the minister in the first instance, in accordance with rule 10 of the ET National Security Rules (see \u201cRelevant domestic law and practice\u201d, below). He directed that one paragraph be abridged and another omitted. As a result, an edited version of the reasons was initially issued to Mr Tariq and his representatives on 15 October 2008. However, on 9 December 2008 the full reasons were released.","31. A full hearing on the merits of the claim was listed for 12 \u2011 20 January 2009. At the beginning of the hearing before the Employment Tribunal, Mr Tariq \u2019 s counsel submitted that the Tribunal should not consider any document which Mr Tariq had not seen nor hear any witnesses in his absence. On 19 January 2009 the Employment Tribunal ruled, unanimously, that it had the power to admit closed evidence and that it would hear the closed evidence before hearing the open evidence. The reasons for the decision were sent to the parties on 5 March 2009.","32. Mr Tariq appealed against the decision to the Employment Appeals Tribunal (\u201cEAT\u201d). On 16 October 2009 the EAT handed down its judgment. Referring to this Court \u2019 s judgment in A. and Others, cited above, the EAT concluded that the rule 54 procedure was not in itself incompatible with Article 6 of the Convention, but it considered that disclosure was required to enable a person to be provided with adequate details of the allegations against him to enable him to give effective instructions to his special advocate (\u201cgisting\u201d).","33. The Home Office and Mr Tariq appealed to the Court of Appeal. The Home Office argued that Article 6 did not require \u201cgisting\u201d in a case of this nature. Mr Tariq challenged the finding that the closed material procedure was compatible with Article 6. The court handed down its judgment on the appeal on 4 May 2010. It held that there was no inherent incompatibility between the closed material procedure and Article 6 of the Convention. However, it upheld the decision of the EAT on the need for disclosure of relevant documents for Mr Tariq to know the case against him. It therefore dismissed both appeals.","34. In the meantime, on 28 April 2011 Mr Tariq was dismissed from his employment on the basis he did not have the security clearance to work anywhere in the Home Office.","35. Both parties appealed to the Supreme Court. The case was heard by a panel of nine judges in January 2011 and judgment was handed down on 13 July 2011. The House, by a majority, upheld the appeal by the Home Office (Lord Kerr dissenting) and dismissed Mr Tariq \u2019 s cross-appeal.","36. Lord Mance, with whom the other majority judges broadly agreed, considered that the cases relied on by Mr Tariq, including A. and Others, cited above, in which more stringent disclosure requirements had been found to apply could be distinguished from the present case. He explained that those cases involved detention, control orders and freezing orders, which directly impinged on personal freedom and liberty in a way to which Mr Tariq could not be said to be exposed. In his view the balancing exercise between the public interest in counter terrorism efforts and the right to procedural fairness under Article 5 \u00a7 4 of the Convention discussed in A. and Others, cited above, \u00a7 217, depended on the nature and weight of the circumstances on each side. He continued:","\u201c... [C]ases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present, where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself.\u201d","37. He referred to the decisions in Leander, cited above; Esbester v. the United Kingdom, no. 18601\/91, Commission decision of 2 April 1993, unpublished; and Kennedy v. the United Kingdom, no. 26839\/05, 18 May 2010 to support his view that the outcome of the balancing exercise could differ depending on the circumstances. He considered that these three decisions established that the demands of national security could necessitate and justify a system for handling and determining complaints under which an applicant was, for reasons of national security, unable to know the secret material by reference to which his complaint was determined. The critical questions under the Convention were whether the system was necessary and whether it contained sufficient safeguards. He was satisfied that in the civil, as opposed to the criminal, context, a balance might have to be struck between the interests of claimant and defendant if a defendant could only defend itself by relying on material the disclosure of which would damage national security. He therefore found that the closed material procedure, including the role of the special advocate, was lawful.","38. On the question of \u201cgisting\u201d, Lord Mance noted at the outset that the general nature of the Home Office \u2019 s case was communicated to Mr Tariq, namely his close association with suspected terrorists and his vulnerability. He continued:","\u201c... Mr Tariq must be able to meet this case on a general basis, in particular, by disclosing and describing his relationship and the nature and extent of his association with those of his relatives suspected and his cousin who was ultimately convicted of terrorist activity; and he has, further, on the basis of, in particular, his questioning in interview also been able to mount a sufficiently arguable case of discrimination to avoid any application to strike out his claim ...\u201d","39. On the closed material procedure, Lord Hope added:","\u201cAs for the procedure that the 2004 Regulations provide for, several features indicate that the balance has been struck in the right place. First, there is the fact that, under the procedure provided for by rule 54(2) of Schedule 1 to the Regulations, the decision as to whether closed procedure should be resorted to rests with the tribunal or the employment judge. The fact that the decision is taken by a judicial officer is important. It ensures that it is taken by someone who is both impartial and independent of the executive. Second, there is the fact that, as this is a judicial decision, it will not be taken without hearing argument in open court from both sides. It will be an informed decision, not one taken without proper regard to the interests of the individual. Third, it opens the door to the use of the special advocate. Fourth, it is a decision that can and should be kept under review as the case proceeds: see the last sentence of rule 54(2). Fifth, the special advocate can and should be heard as the process of keeping it under review proceeds.\u201d","40. He emphasised that this had to be balanced against the consequences for national security if this procedure were not to be available to the Tribunal, noting:","\u201cWithout it, there would be a stark choice: to conduct the entire defence in open proceedings however damaging that might be to the system of security vetting, and in particular to those who contributed to it in this case; or to concede the case and accept the consequences...\u201d","41. Following the judgment of the Supreme Court, Mr Tariq pursued his claim before the Employment Tribunal. In light of the judgment of the Supreme Court, additional evidence was moved into the open proceedings before the Tribunal, including documents setting out the full reasons for withdrawal of security clearance.","42. After hearing open and closed evidence, the Employment Tribunal gave its reserved judgment on 17 July 2014; reasons were sent to the parties on 6 November 2014. It unanimously dismissed the applicant \u2019 s claims.","B. Relevant domestic law and practice","1. The Employment Tribunal and the closed material procedure","43. Employment Tribunals are established under the Employment Tribunals Act 1996 (\u201cthe 1996 Act\u201d). Section 7 of the 1996 Act entitles the Secretary of State to make by regulations such provision as appears to him to be necessary or expedient with respect to proceedings before Employment Tribunals. Section 10 of the Act specifically authorises the making, in the interests of national security, of regulations providing for a closed material procedure, either by direction of a minister or by order of the Employment Tribunal, and for the appointment by the Attorney General in that context of a special advocate.","44. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 contain rules made under sections 7 and 10 of the 1996 Act.","45. Schedule 1 contains the Employment Tribunals Rules of Procedure (\u201cthe ET Procedure Rules\u201d).","46. Rule 31 of the ET Procedure Rules allows the ET to order any person in its jurisdiction to disclose documents or information to a party (by providing copies or otherwise) or to allow a party to inspect such material as might be ordered by a County Court. Rule 32 permits the Tribunal to order any person in its jurisdiction to give evidence, produce documents or information","47. Rule 54(1) permits a minister to direct an Employment Tribunal, if he considers it expedient in the interests of national security, to:","\u201c(a) conduct proceedings in private for all or part of particular Crown employment proceedings;","(b) exclude the claimant from all or part of particular Crown employment proceedings;","(c) exclude the claimant \u2019 s representatives from all or part of particular Crown employment proceedings;","(d) take steps to conceal the identity of a particular witness in particular Crown employment proceedings.\u201d","48. Rule 54(2)(a) empowers an Employment Tribunal, by order, if it considers it in the interests of national security, to do anything which can be required by direction to be done under Rule 54(1). Pursuant to Rule 54(2)(b) and (c), an Employment Tribunal may order that any documents not be disclosed to an excluded person; and may take steps to keep secret all or part of the reasons for its judgment. The Employment Tribunal is required to keep under review any order it has made under Rule 54(2).","49. Rule 54(4) provides:","\u201cWhen exercising its or his functions, a tribunal or Employment Judge shall ensure that information is not disclosed contrary to the interests of national security.\u201d","50. Schedule 2 of the Regulations contains the Employment Tribunals (National Security) Rules of Procedure (\u201cthe ET National Security Rules\u201d). Rule 8 provides for the appointment of a special advocate to represent the interests of a claimant excluded from any part of the proceedings. Pursuant to Rule 8(4) the special advocate is not permitted to communicate directly or indirectly with any person (including the excluded person) regarding the written grounds on which the claim is resisted or any proceedings in respect of which the judge sat in secret. However, Rule 8(5) and (6) permits a special advocate to apply to the Tribunal in writing for an order authorising him to seek instructions or otherwise communicate with an excluded person on these matters.","51. Rule 10 of the ET National Security Rules addresses the giving of reasons in national security proceedings. It provides that prior to reasons being sent to any party, a full copy of the reasons shall be sent to the minister. The minister may direct the Employment Tribunal that the full reasons should not be disclosed, in the interests of national security.","2. The role of the special advocate","52. The general role of the special advocate was described by Sedley LJ in Murungaru v. Secretary of State for the Home Department [2008] EWCA 1015 (Civ) as follows:","\u201cThe ways in which a special advocate will seek to represent the interests of an appellant are, first, to test by cross-examination, evidence and argument the strength of the case for non-disclosure. Secondly, to the extent that non-disclosure is maintained, the special advocate is to do what he or she can to protect the interests of the appellant, a task which has to be carried out without taking instructions on any aspect of the closed material ... [T]he special advocate represents no-one. A special advocate system is thus not a substitute for the common law principle that everyone facing an accusation made by the State is entitled to a fair chance to know the evidence in support of it and to test and answer it in a public hearing. But it is the best procedure so far devised to mitigate the effect of trial without disclosure if such a trial is unavoidable.\u201d","3. The Security Vetting Appeals Panel","53. The Security Vetting Appeals Panel (SVAP) was established by the then Prime Minister in July 1997. It is a non-departmental public body, ultimately accountable to the Prime Minister and operating under the scrutiny and oversight of the Cabinet Office.","54. It is usually chaired by a senior serving or retired member of the judiciary, and is empowered to hear appeals against refusal or withdrawal of security vetting clearance. All those in the public and private sectors and in the Armed Forces who are subject to security vetting and have exhausted existing appeals mechanisms within their own organisations can appeal to the SVAP.","55. The SVAP may review the merits of the security vetting decision and the procedures which were followed in making that decision, and make recommendations to the relevant Head of Department in light of its findings. It can recommend:","(i) that the decision to refuse or withdraw security clearance should stand;","or","(ii) that security clearance should be granted or restored."],"81":["4.The applicant was born in 1992 and lives in Bukhara, Uzbekistan.","5.The facts of the case, as submitted by the parties, may be summarised as follows.","6.The applicant was born in Uzbekistan. In 2003 his father, mother, brother and sister moved to Vladivostok in Russia and subsequently acquired Russian nationality, while he continued to live with his grandfather in Bukhara, visiting them in the summer months. After his grandfather had died and the applicant had finished the secondary school, in June 2011 hejoined his family in Russia.","7.The applicant took a mandatory blood test with a view to obtaining a health certificate to support his application for a temporary residence permit. He was found to be HIV-positive.","8.On 23 September 2011 the Consumer Protection Authority declared the applicant\u2019s presence in Russian undesirable (the \u201cexclusion order\u201d) on the ground that he was HIV-positive.","9.By judgment of 19 December 2011, the Sovetskiy District Court in Vladivostok rejected the applicant\u2019s challenge to the exclusion order, finding that it was issued in full compliance with Russian law.","10.On 13 February 2012 the Primorskiy Regional Court upheld the judgment on appeal.","11.On 22 February 2012 the applicant left Russia to comply with the exclusion order."],"82":["5.The first applicant, Unifaun Theatre Productions Limited, is a limited liability company which produces theatrical performances in Maltese theatres. The second and third applicants are the two directors of the company. The fourth applicant is the artistic director of the theatrical production known as \u201cStitching\u201d, a play written by the Scottish playwright Anthony Neilson, originally published in 2002 in the United Kingdom by the publishing house Metheun Drama. The fifth as well as the third applicants are two actors engaged to perform in the mentioned production (as Stu and Abby, the main characters).","A.Background to the case","6.In October 2008, the first applicant, via the second applicant, decided to produce the play Stitching for the theatre audiences in Malta, and proceeded to obtain the necessary performance licence from the author and his agent. The relevant authorisation was granted to the first applicant by the author and agent of the production following the payment of a fee.","7.On 23 December 2008 the first applicant lodged an application with the Board for Film and Stage Classification (\u201cthe Board\u201d), in order for a rating certificate to be issued in terms of the Stage Regulations (see Relevant domestic law). The relevant fee was paid and a clean copy of the script submitted.","8.At the same time, the first applicant entered into a reservation agreement with a theatre for eight dates between 13 February and 1March 2009 and hired the third, fourth and fifth applicants in connection with the services for such play.","9.On 20 January 2009 the Board issued a certificate (no. 0000043), which was received by the applicants on an unspecified date, stating that the play had been examined by its chairperson (T.F.) and that it was decided that it was \u201cBanned \u2013 Banned and disallowed\u201d. No reasons were provided for the decision. Before this Court the Government submitted a further classification certificate with the same conclusion, also dated 20 January 2009, which stated that the classifier was T.F., as well as C.X., A.M. and D.M. (the latter names added by means of an asterisk). The applicants submitted that they had never received the certificate submitted by the Government. The Government explained that the latter certificate was an internal document.","10.On 23 January 2009 the first applicant, via the second applicant, sent an email, followed by a telephone call, to the chairperson of the Board enquiring about the decision. No reasons were provided by the chairperson.","11.On 25 January 2009 the first applicant, via its legal counsel, sent a letter to the chairperson requesting a reconsideration of the decision in terms of Regulation47(1) of the Stage Regulations.","12.By means of a letter of 29 January 2009 the Board informed the first applicant, via the latter\u2019s legal counsel, that the original decision was reconfirmed. The letter contained no reasons and did not list the names of the persons who had been involved in the review.","13.On 31 January 2009 another letter was sent to the first applicant by the chairperson. It enclosed a document dated 30January 2009 addressed \u201cto whom it may concern\u201d, which had been deposited with the Commissioner of Police, containing the reasons why the production was banned, namely:","\u201c1.Blasphemy against the State Religion \u2013 pages 10 and 17","2.Obscene contempt for the victims of Auschwitz \u2013 page 29","3.An encyclopaedic review of dangerous sexual perversions leading to sexual servitude \u2013 pages 33, 34 and several others","4.Abby\u2019s eulogy to the child murderers Fred and Rosemary West \u2013 page 35","5.Reference to the abduction, sexual assault and murder of children \u2013 page 36","In conclusion, the play is a sinister tapestry of violence and perversion where the sum of the parts is greater than the whole. The Board feels that in this case the envelope has been pushed beyond the limits of public decency.\u201d","14.On 2 February 2009 the applicants filed a judicial protest against the chairperson, in her personal capacity and as Chairperson of the Board, the Commissioner of Police and the Attorney General claiming that the actions of the Board were illegal in so far as they constituted a violation of Article39 of the Maltese Constitution and Article10 of the Convention. They considered the defendants responsible for any damage suffered.","15.By 14 February 2009 (the day following what had to be the first performance date), no reply was received to the mentioned judicial protest. In consequence, the applicants called a press conference explaining the situation, noting that they were adhering to the law but that they were determined to perform the play at some stage.","16.In the evening of the same day, the applicants and their legal counsel were summoned for questioning at the Police Headquarters. The applicants were sternly warned by a police inspector that they would face immediate arrest if they attempted to stage the play.","17.Rehearsals for the production carried on unabated. According to the applicants around two hundred persons watched the rehearsals and none of them found the play objectionable.","18.The Board\u2019s decision was not revoked and an invitation to the Chairperson to attend a rehearsal (as members of the Board sometimes did in connection with other performances) remained unanswered.","B.Constitutional redress proceedings","19.On 3 March 2009 the applicants instituted constitutional redress proceedings complaining that they had suffered a breach of Article 10 of the Convention. They also claimed damage and redress. Complaining under Article 6 they claimed that they did not have a fair hearing before the Board for Film and Stage Classification in so far as they had no hearing and no possibility to make submissions, nor were any reasons for the decision ever communicated to them. They also relied on the relevant provisions of the Maltese Constitution.","20.By a decree of 20 October 2009 the court rejected a request for the production to be shown behind closed doors to the court and the defendants.","21.During these proceedings the court heard several witnesses which it classified as (i) those who acted in the play and had thus read the script and performed it in rehearsals, (ii) persons who watched the rehearsals but did not read the script and (iii) the defendants who read the script but did not watch the rehearsal.","22.The court heard the applicants, four witnesses (who had watched the rehearsals) produced by the applicants, namely, P.M. a consultant psychiatrist, J.S. an educator, child psychologist and actress, K.D. a tourism marketing executive and actor, a priest who was a former film classifier for the Archdiocese of Malta, as well as the author of the play. The latter testified that the play had been performed uninterruptedly in all parts of the world and extensively in Europe, during which time it had collected a number of awards.","23.The author described the play as follows:","\u201cA couple called Stewart and Abby, a very normal couple but however a couple who find themselves in relationship difficulties, there have been betrayals, they\u2019re wondering whether to continue with their relationship. Abby discovers that she is pregnant by Stewart and so a large part of the play is concerned with them discussing whether or not to have the child. Ultimately they decide to have the child but they decide to do so in order to save their relationship, one might say for somewhat impure motives, they feel that having this child will keep them together. However their relationship continues to disintegrate and at one point during a fight they are having between themselves when their attention is diverted elsewhere, the child is involved in an accident and then dies. Obviously this is a huge trauma for them and they are driven apart. They come back together again sometime later, maybe a year later and meet and for them their relationship is not quite finished and they come back together in their grief because they are the only other people who understand the depths of their grief. When they come together they can only do so in a perverted fashion, where Abby actually poses as a prostitute. She wants to make their sexual relationship a matter of commerce in order to distance herself from the emotions.","What then ensues is a very violent and dark relationship, a kind of a punishment of themselves, confessions of their guilt. Eventually Abby is tipped into clinical mental illness and performs an act of self-mutilation which she believes will restore her to a virginal state, and that is what finally blows apart their relationship. In a final coda Stewart meets Abby sometime later when she has obviously received treatment for her mental illness and has in fact converted to Christianity and both of them decide to go their separate ways.\u201d","24.He further testified as follows:","\u201c(Concerning pornographic references) I would not for instance have used real pornographic pictures. I felt that that would be needlessly offensive for people however another director might chose to do so. ...","(Concerning women in Auschwitz walking towards death) it should not be an unfamiliar concept that in their grief that couple confess to thoughts, to feelings that they feel guilty about. The play to some extent is about life and about death. When he talks about masturbating and using as his material pictures of women from Auschwitz, this is something that occurs when he is a small child, this occurs when he is a very young child. He says that it is the first time that he masturbated which would imply that it is reasonably early. At that time of life a young man is completely concerned with procreation, with the creation of life and he understands nothing of death, of mortality. So in fact that is what actually that phrase is about, the fact that he is confessing, he is saying I knew nothing about death, I did not look at the atrocity of life, I saw only the nudity. So it\u2019s actually nothing to do with Auschwitz, it\u2019s to do with sexual urges and it\u2019s to do with him, you know small children don\u2019t understand Auschwitz.","(In reply to a court\u2019s question concerning the swearing\/blasphemy (daag\u0127a)) well that\u2019s not a concept that ever crossed my mind. I\u2019m not a religious person.","(Domestic court\u2019s question - Does the script allow the director to put aside certain references to things that could be described by people as hard? Will the text lose by the director leaving it out? ) I dare say that a director could remove one or two swear words but that would all have to be taken on the case by case basis, but largely speaking I would say they would suffer yes because there is a reason why every line is in every one of my plays. There\u2019s a reason for it and I\u2019m happy to stand here and justify them all day.","(Domestic court\u2019s question - As far as Stitching is concerned an omission by the director could affect the whole performance?) Yes absolutely.\u201d","25.P.M., a consultant psychiatrist, stated that in his opinion the play was a love story which unfortunately turned very badly. He explained that following the death of their son through their own negligence, the main characters had a relationship based on various fantasies, until the female character became mentally ill. It was a sad story, with however a redeeming feature, in that the two finally manage to get back a balance in their life. He testified that there was nothing pornographic in the story and the bad language was in the context of the emotions being felt by the couple.","26.J.S., a child psychologist, stated that in her opinion the play concerned a tragedy of a couple going through a crisis, which reached its peak when their son had died in an accident. She explained that the couple tried to connect in ways which were not necessarily conventional. She considered that it was a sensitive play that called for a mature audience. In reply to a court\u2019s question concerning a specific part of the text, J.S. replied that she was not shocked because she could not dissociate her female gender from her being a psychologist.","27.The priest (who saw the rehearsal but did not read the script) considered that he would have classified it for wise adults (bil-g\u0127aqal). He explained that when a person was suffering she or he \u201cmay lose it\u201d and enter into areas which decent people may object to. However, in his view that was the human reality. When one was ready to study illnesses and the suffering of people who were going through pain one must be democratic and tolerant and give society the chance to understand those not living normally.","28.K.D. (who saw the rehearsal but did not read the script) testified that most of the dialogue was between two people who had certain hang-ups and inter personal problems, and who in a quest to get closer, nearly started a competition between them as to who was the more outrageous. Nevertheless, in his view, at some point one could tell that they were flirting with each other despite them being outrageous.","29.The third applicant who was performing as Abby stated that she did not find the play offensive in any way, noting that the emotions were very real and that she felt that it was a love story. She also testified that no pornography was used as props.","30.The applicants also submitted that the script could be purchased and read by any person in Malta, without hindrance.","31.The defendants produced the witness testimony of the members of the Board and other individuals, as explained below.","32.Another priest (who read the script but did not see the play) felt that the script was offensive in various parts and dehumanising. He was annoyed by the blasphemous words and the reference to the Moors murderer, and very annoyed at the reference to the Holocaust. Further, he considered that the woman was being put forward as an object, and while it was possible that it was her choice, he thought she was totally subordinate to the man.","33.T.M. (a member of the Board who only read the script) had no doubt that it would have been better had they watched the theatrical production. He, however, explained that there were instances, such as the one in the present case, where the script was so objectionable, that he did not feel the need to watch it, since the two elements which he objected to (the words concerning Auschwitz and the passage about Fred and Rose Mary West) would always remain objectionable, no matter the way in which they were presented, be it a tragedy or a comedy. They would nonetheless remain offensive to certain sectors of Maltese society or indeed society anywhere. While shock was a legitimate theatrical weapon and may be used repeatedly, one could not offend other people\u2019s sensibilities. Both in the case of the holocaust and that of child murders, humanity was at stake, and the relevant passages offended the sense of decency one individual should have towards another.","34.D.M. (a psychologist and member of the Board) found the script barely credible in so far as it was unlikely that a person would go through so many situations one after the other. While perversions did exist, this couple was being put forward as a normal couple. In his view a normal couple, a couple who went through a normal life experience such as the death of a child, would not react like the characters in the play, who for example, re\u2011enacted a killing which had greatly marked England. Further the scene concerning Auschwitz desecrated the memory of the persons who suffered.","35.Another witness, a retired Chief Justice and professor of law (who only read the script), examined the play from the point of view of public morals. He considered that certain parts of the play were disgusting, such as that describing Auschwitz, and the blasphemous words. He explained that the word \u201cfuck\u201d combined with the word \u201cGod\u201d was unacceptable because it offended public morals, not only that of Catholics, but that of half the world. Thus, in his view those parts had to be deleted from the play. The parts concerning sex and sexual perversions, such as the part where the male figure wanted to pay the female figure to allow him to do certain things, disgusted him, but he considered that certain people could accept that.","36.J.C., the member of the board who confirmed on appeal that the play should be banned considered that, apart from other concerns mentioned by other members of the board, it was not justifiable for a couple to do certain things in public just because they were going through a bad patch. It was not acceptable that a woman had to give her vagina to a man to show him she loved him. In his view, if one were to make the appropriate deletions to the script, there would be nearly nothing left, and he could not find anything positive about it.","37.The Chairperson of the Board testified that there were entire scenes which she considered went against morality and were an affront and atrocious attack on human rights and the dignity of the individual. She was shocked and very annoyed by what she considered to be unadulterated pornography where the woman was becoming the man\u2019s absolute slave. She considered that the play in its entirety, and not one scene here and there, was objectionable and offensive. The fact that the play ended with the couple possibly deciding to have a baby, did not suffice to hold that the play had a positive message, given the preceding eighty (sic) pages.","1.First-instance judgment","38.In an eighty-two-page judgment of 28 June 2010, the Civil Court (First Hall) in its constitutional competence rejected the applicants\u2019 claims.","39.The court considered that the second applicant had no further interest than that of the director of the company, thus it sufficed that the company was an applicant, and he, thus, had no victim status in his own capacity. Nevertheless, the artistic directors as well as the actors were victims of the alleged violation, as persons who were giving life to a script by means of their artistic representation - a theatrical performance which was a form of expression for the purposes of Article10.","40.It rejected the Government\u2019s objection as to non-exhaustion of ordinary remedies since the applicants\u2019 complaints concerned mainly issues of a constitutional and conventional nature, and thus were best dealt with by the courts of constitutional jurisdiction. For the purposes of the present case, the applicants were complaining of a human rights violation, and therefore an action for judicial review could not be an effective remedy in so far as it could not award the relevant damage, and could not order that the performance go ahead irrespective of the ban.","41.As to the merits, the court made extensive reference to the Court\u2019s case-law, in particular Handyside v. theUnited Kingdom (7December 1976, Series A no. 24), Otto-Preminger-Institut v.Austria (20September 1994, Series A no. 295\u2011A) and Wingrove v.theUnitedKingdom (25November 1996, Reports of Judgments and Decisions 1996\u2011V) as well as prominent authors in the field of human rights. It considered that the decision of the Board to ban the play had been correct and in accordance with the law and established guidelines. The court, having read the entire script, could not tie the plot which the author wanted to transmit with the means employed to do so. In the court\u2019s view the author did not need to make use of such perversions in order to show the troubled reality of the characters.","42.It considered that the Board was correct to conclude that the play in its entirety was offensive to Maltese society. Indeed the specific scenes referred to, as well as other parts of the play, were an affront to the dignity of the individual, which was an integral part of the civil and moral fabric (tessut) of the country. Even in a pluralistic and democratic society, such as the Maltese one, human dignity could not be trampled on, even if the aim was \u201cpresumably\u201d a genuine one. As problematic as the relationship of the couple might have been, one could not make extensive use of vulgar, obscene and blasphemous language to highlight perversions, vilify (ikasbar) the right to life and the right to freedom from inhuman and degrading treatment, and vilify the respect towards a woman\u2019s dignity. It was not acceptable to publicise uncivil behaviour, which broke the law, debased the suffering of women during the holocaust, portrayed women as the object of sexual satisfaction, as well as ridiculed family life and the responsibilities parents have towards their children. A democratic society, while being tolerant, could not permit its values to be turned on their head in the name of freedom of expression. In the court\u2019s view, the stitching of a vagina as an act of sexual pleasure, bestiality, the depravity arising from the thought of a woman eating another woman\u2019s excrement, the pleasure obtained in raping children, the murder of children and sexual intercourse with parents of violated and murdered children, were unacceptable even in a democratic society. The court noted that under Maltese law, blasphemy was a contravention, and a person could not be immune from punishment simply because he or she was acting on stage. The Shoah, the court went on, \u201cwas a historical fact where innocent victims underwent unprecedented suffering. Instead of treating this sensitive and delicate subject...with due respect to the dignity of the victims, the character Stu shows only sexual depravity...the author permits the demeaning and humiliation of that tragedy totally out of context and for no other reason than for perversions. No matter how the text of the play is looked at, it runs aground on the reef of the inalienable dignity of the human person, and the court understands that this was the underlying reason for the Board\u2019s decision.\u201d","43.The court rejected their complaint under Article 6 on the basis that the proper procedure had been undertaken, the applicants had been free to put forward their views in their request for reconsideration, which was carried out by another person [not present at first-instance] and no bias had been shown.","2.Appeal judgment","44.The applicants appealed the first-instance judgment only in so far as it concerned the merits of their complaints, and asked the Constitutional Court to confirm the judgment in so far as it related to the second applicant\u2019s victim status. By a judgment of 29November 2012, the Constitutional Court confirmed the first-instance judgment and ordered the applicants to pay all costs.","45.The Constitutional Court noted that the first-court had chosen to exercise its jurisdiction and rejected the defendants\u2019 objection of non\u2011exhaustion of ordinary remedies, which in the absence of an appeal on the matter had become final. Nevertheless, it noted that the applicants had not instituted judicial review proceedings of the administrative action in question (the Board\u2019s decision); thus they were not complaining that the Board\u2019s decision was based on improper motives or irrelevant considerations. Moreover, the ordinary court, in judicial review proceedings, could have also examined the reasonableness of the decision, taking into account all the circumstances of the case. Thus, the applicants could no longer complain about the Board\u2019s decision ut sic, and people\u2019s opinions on the play were irrelevant given that the applicants considered the decision to be reasonable.","46.As to the constitutional and conventional complaint raised by the applicants, the Constitutional Court held that the existence of the Board did not breach any of the applicants\u2019 rights, and indeed the applicants had not impugned the law establishing the Board. It further considered that freedom of expression had limits and that it was accompanied by duties and responsibilities. Both the Convention and the Constitution provided for interalia the protection of morals and the reputation and rights of others, and the Maltese Constitution also included public decency, in the relevant provision.","47.The Constitutional Court, having read the script, shared the first\u2011instance court\u2019s view about various scenes of the play. It considered that such scenes all throughout the play affected the morality and decency of the entire production, and it was within the Board\u2019s competence to assess that in line with the Regulations. The Constitutional Court had no doubt that there were phrases which constituted disparaging and insolent remarks towards more than one belief, towards women and towards the suffering of the Jews in the Second World War.","48.Referring to the Court\u2019s case-law, in particular, Otto\u2011Preminger\u2011Institut v. Austria (\u00a7 47) it recalled that those who chose to exercise the freedom to manifest their religion, \u201cmust tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article9 to the holders of those beliefs and doctrines.\u201d","49.In its view the limits of decency had been breached due to the blasphemy which was an offence under Maltese law and to the vilification of the dignity of a people, of a woman, of children, and of the human being, as well as the extreme glorification of sexual perversion. These instances were so strong that they affected the play in its entirety and prevailed over any genuine aim presumably intended by the play. The court emphasized that the production despised the dignity of the individual, in particular sectors, such as women and children, whether because of their nationality or religion, and opined that even though the main characters were acting in this way because of tension, pressure and depression, such contempt could not be justified as art. In the court\u2019s view while art was a wide concept covering any type of manifestation of expression, it could not include language which was obscene and despised the trauma of a genocide, and which, in itself, was against the laws of the country. For a strong moral message to be portrayed it was possible to cause discomfort and annoy other persons, but not to the extent of insulting them because of their beliefs, their people, or simply because they were a woman or a child.","50.Recalling that it was the duty of the State to protect the morality of the country, the Constitutional Court considered that the Board had fulfilled its duty. What was morally correct depended on the State and the relevant religion, and could not be determined universally. Thus, the fact that the production was performed elsewhere did not mean that it had to also be produced in Malta, particularly in the light of the laws in force in each country. This was precisely why states had latitude in applying certain restrictions on freedom of expression.","51.It further noted that under the laws in force, the Board could ban the play, as opposed to classifying it for a mature audience. In any event it considered that adults, who could chose to watch the play in such a case, would also be deserving of protection, and thus limitations could also be necessary in such cases. It highlighted the states\u2019 duty to preserve the sensitivities of the silent citizen (as opposed to the vociferous ones, who inundated media forums) and considered that no remedy after the performance could heal any harm already done to society. Thus, in the Constitutional Court\u2019s view the Board\u2019s decision was correct, was not capricious or exaggerated, and it corresponded to the need to protect public morality in Maltese society and the rights of others.","52.The Constitutional Court concluded that it was not necessary to watch the play as the script was enough. In the absence of an Article14 complaint, it was also unnecessary to compare the performance to other performances which had been allowed by the Board. The applicants having refused to make any changes to the text, despite its invitation to do so, the Constitutional Court confirmed that it would remain banned and that there was no breach of Article 10.","53.In connection with their Article 6 complaint, the Constitutional Court held that the applicants did not institute judicial review proceedings and in any event there had been no breach of their rights. Furthermore, in their view there had been no determination of any civil right."],"83":["6.The first applicant was born in 1947 and lives in Dolyna, a city in the Ivano-Frankivsk Region.","In December 1996 her mother obtained a share of land in the village of Kopytkove in the Zdolbunivsky district of the Rivne region (see paragraphs11 to 14 below concerning the nature of shares of land and their subsequent conversion into plots). Following her mother\u2019s death in November 1999, the first applicant inherited that share and obtained a certificate confirming that she had become its new owner on 25 May 2000. On 10 January 2006 the Zdolbuniv District State Administration allocated a plot of land to her measuring 2.5917 hectares, zoned for use as an individual smallholding (\u043e\u0441\u043e\u0431\u0438\u0441\u0442\u0435 \u0441\u0435\u043b\u044f\u043d\u0441\u044c\u043a\u0435 \u0433\u043e\u0441\u043f\u043e\u0434\u0430\u0440\u0441\u0442\u0432\u043e, see paragraph 18 below for a description of zoning categories of agricultural land under Ukrainian law).","The applicant obtained a property certificate in respect of that land on 13August 2007. She rented out 2.0917 hectares to a company under a lease registered on 30 May 2015 and due to expire on 10 November 2021, and 0.5hectares to another company under a fifteen-year lease registered on 10August 2016. According to the applicant, she receives rent in kind, either in grain or sunflower oil, depending on the crops grown on the land in a given year.","7.The second applicant was born in 1939 and lives in Ternopil.","On an unspecified date his mother obtained the right to a share of land in the village of Rakovets in the Zbarazh district of the Ternopil region. In November 2004 he inherited it from her. On 27 March 2008 the Zbarazh District State Administration allocated 3.41 hectares of agricultural land to him, zoned for commercial agricultural production (\u0442\u043e\u0432\u0430\u0440\u043d\u0435 \u0441\u0456\u043b\u0441\u044c\u043a\u043e\u0433\u043e\u0441\u043f\u043e\u0434\u0430\u0440\u0441\u044c\u043a\u0435 \u0432\u0438\u0440\u043e\u0431\u043d\u0438\u0446\u0442\u0432\u043e). He obtained a property certificate on 22July 2008.","The land is rented by a limited liability company. Since 2010 the second applicant has received rent in the following amounts:","Year","UAH","(in total)","UAH","(per hectare)","Approximate equivalent in EUR","(per hectare)","2010","729.29","213.87","20","2011","749.44","219.78","20","2012","1316.02","385.93","36","2013","1316.02","385.93","33","2014","1316.02","385.93","19","2015","2191.73","642.74","24","2016","2191.73","642.74","22","8.The applicants\u2019 land is subject to legislative restrictions on alienation and change of designated use, which are described in \u201cRelevant domestic material\u201d and, as regards their current state, in paragraph 22 below.","A.Background to the legal situation of land ownership in Ukraine","9.Under the laws of the Ukrainian Soviet Socialist Republic, prior to the enactment of the Land Code of 18 December 1990 (hereinafter \u201cthe Land Code\u201d), individuals and non-State entities could not own land and all land was owned by the State.","10.Under Article 17 of the Land Code, local councils were authorised to transfer land to individuals and non-State entities. However, for a period of six years, those who acquired land could not sell or otherwise dispose of it (except in cases of inheritance). They could only transfer the property back to their local council. The courts could shorten this period if there was a valid reason for such a decision.","11.In the 1990s a large proportion of the country\u2019s agricultural land was held by the former Soviet collective and State-owned farms which, under the Law of 14 February 1992 were renamed \u201ccollective agricultural enterprises\u201d (hereinafter \u201cCAEs\u201d or \u201ccollective farms\u201d).","12.Presidential Decree no. 720\/95 of 8 August 1995 provided for a programme of gradual reform of the CAEs through the issuance to their current and former members of shares of land, that is to say land entitlements in the form of shares of the whole land mass of the CAE expressed as a number of hectares but without a specific physical location or defined boundaries. The decree provided that the shares were to be distributed to current and former members of CAEs as well as to certain categories of workers employed in the social sector (education, medicine and so forth) in rural areas. While the decree gave members of the CAEs the ability to withdraw from their CAEs with their shares, the large-scale process of dissolving the CAEs through the issuance of shares did not actually start until 1999 (see next paragraph).","13.Presidential Decree no. 1529\/99 of 3 December 1999 accelerated the land reform by requiring the dissolution of all CAEs by April 2000, through the distribution of shares of land and other assets to their members. In the process of dissolving the CAEs, a large proportion of the rural population acquired shares of land.","14.A large-scale process of converting the shares into physical plots of land (defined on the ground) was then organised. As a result of this process, millions of new owners were issued with ownership certificates relating to specific plots of land.[1] The land owned by the applicants underwent this process (see paragraphs 6 and 7 above).","15.According to Parliamentary Resolution no. 882-IV of 22 May 2003 summarising the provisional results of the land reform, during the process 6.87million Ukrainians obtained shares of land and 3.17 million had them converted into plots of land. Parliament noted some difficulties in the issuance of shares of land and their conversion into plots of land, with some regions falling behind: only 13% of share owners obtained property certificates to plots of land in the Zhytomyr Region, while this figure stood at 96% in the Kirovograd Region. Some 107,000 shares were sold or otherwise disposed of by their new owners, which, according to Parliament, showed that they had not been adequately informed about the land reform and their rights and duties.[2]","Parliament observed that, due to a lack of funding, the Cabinet of Ministers was only planning to complete the share conversion and titling work by 2006, which made it impossible to introduce the land sales market from 1 January 2005, as the Land Code provided at the time (see paragraph19 below).","B.The initial \u201cland moratorium\u201d","16.Law no. 2242-III of 18 January 2001 prohibited, until the enactment of a new Land Code, the alienation of shares of land, except in cases of inheritance and expropriation for public needs.","17.On 25 October 2001 a new Land Code was enacted. It entered into force on 1 January 2002.","18.Article 22 \u00a7 3 of the new Land Code defines the following categories of designated use for agricultural land: (i) individual smallholdings; (ii) land for fruit and vegetable growing; (iii) land for pasture and hay harvesting; (iv) land for commercial agricultural production; and (v)individual farming enterprises, that is to say commercial entities owned by individual farmers engaged in commercial agricultural production.","19.Article 15 of the Transitional Provisions of the new Land Code provided that until 1 January 2005 individuals and non-State entities could not sell or otherwise transfer title to two categories of land in their ownership: (i) plots zoned for individual farming enterprises or for other commercial agricultural production and (ii) shares of land. Swap transactions, inheritance cases and expropriation for public needs were exempt from the ban. The ban, which has been subsequently extended and modified (see the Table in paragraph 21 below) is commonly referred to in Ukraine as the \u201cthe land moratorium\u201d (\u0437\u0435\u043c\u0435\u043b\u044c\u043d\u0438\u0439 \u043c\u043e\u0440\u0430\u0442\u043e\u0440\u0456\u0439).","20.According to the Government, the transcript of the parliamentary session at which the new Code was passed shows that the moratorium was introduced in view of the need for additional time to form a land market with \u201cadequate\u201d prices and enact legislation necessary for the creation of such a market. In particular, according to the transcript, at the opening of the debate Member of Parliament V. Asadchev expressed his concern that, if rules of the Code concerning the transfer of land into private hands were to be adopted, this would create a few large landowners (\u0434\u0435\u0441\u044f\u0442\u044c \u043b\u0430\u0442\u0438\u0444\u0443\u043d\u0434\u0438\u0441\u0442\u0456\u0432) and transform the rest of the population into hired agricultural labour (\u0431\u0430\u0442\u0440\u0430\u043a\u0438). In presenting the draft Code for the vote, MsK. Vashchuk, Chairwoman of the Parliamentary Committee for Land Affairs and Agriculture, stated that, in order to address concerns such as those expressed by the MP, the draft suspended the operation of all provisions concerning the sale of land until 2005, until laws on the creation of a land cadastre, land registration and others were passed and a State land bank was established.[3]","C.Changes in the moratorium and its current form","21.The Land Code was amended on a number of occasions as to both the duration and scope of the original ban, as summarised in the Table below:","Table Key legislative developments concerning the land moratorium","No.","Date of the law ","End date of the ban","Changes in the scope of the moratorium and other related changes","Summary of the reasons given in the explanatory note to the draft law","1","06\/10\/2004","01\/01\/2007","Swap transactions involving land, including swaps of land for equity in companies, prohibited","Legislation governing the land market had not yet been developed by the Cabinet of Ministers; technical work was needed to prepare the administrations for processing land transactions. The \u201cextension\u201d was needed to prevent \u201c impoverishment of the Ukrainian people\u201d and the buying up of land by Ukrainian and foreign tycoons (\u043c\u0430\u0433\u043d\u0430\u0442\u0438)","2","09\/02\/2006 ","Contracts and powers of attorney envisaging future (after expiry of the moratorium) transfers of land subject to the moratorium declared invalid","Legislation aimed at preventing circumvention of the moratorium through the issuance of powers of attorney by land owners to third parties authorising them to dispose of the land subject to the moratorium[4]","3","19\/12\/2006","01\/01\/2008","Moratorium extended, in addition to land for commercial agricultural production, to individual smallholdings (see paragraph 18 above); any change of designated use of the land subject to the moratorium forbidden; swap transactions involving a swap of one land plot for another allowed again","Develop private land ownership, ensure the unrestricted exercise of owners\u2019 rights, and ensure free circulation of land except in the cases provided for by law. The creation of a land market would allow transfers of land to more efficient users but in order to do so the market had to be subject to reasonable regulation. Such regulation should include: limits on changing the designated use, the imposition of criteria to qualify as a buyer of land, limiting the maximum plot sizes of certain land and the concentration of land in the hands of a single person and family etc.","4","28\/12\/2007 and 03\/06\/2008[5]","Until entry into force of the Land Cadastre Act and Land Market Act","No notable changes","The amendments were incorporated in omnibus bills covering mostly budgetary matters and containing a wide range of changes; there were apparently no specific comments made on the moratorium issue[6]","5","19\/01\/2010","Until entry into force of the Land Cadastre Act and Land Market Act, but not before 01\/01\/2012 ","No notable changes","Legislation regulating land relations had not yet been developed; technical work was needed to prepare administrations for processing land transactions. The \u201cextension\u201d was needed to prevent \u201cimpoverishment of the Ukrainian people\u201d and the buying up of land by Ukrainian and foreign tycoons","6","07\/07\/2011","and 01\/01\/2013","Land Cadastre Act was enacted and entered into force ","7","09\/12\/2011","Parliament approved the draft Land Market Act at the first reading (see paragraph 40 below). It appears that no further progress on the bill was made","In the course of the parliamentary debate it was proposed to rename the Land Market Act the Circulation of Agricultural Land Act (\u201cthe CALA\u201d).[7]","8","20\/12\/2011","Until entry into force of the Land Market Act, but not before 01\/01\/2013","No notable changes","The Land Cadastre Act would enter into force on 1 January 2013 and the end of moratorium should be set for that specific date","9","02\/10\/2012","Change of designated use was allowed where land was allocated to an investor under a production-sharing agreement","Encourage investment under production-sharing agreements, particularly in the field of the exploration and extraction of hydrocarbons","10","20\/11\/2012","Until entry into force of the CALA, but not before 01\/01\/2016","The law extending the moratorium instructed the Cabinet of Ministers to produce the draft CALA and submit it to Parliament within six months. ","Even though the draft Land Market Act had been approved at the first reading on 9 December 2011, it had not yet been passed into law. A change to the concept of that bill was envisaged, with the name changing to the CALA. An \u201cextension\u201d of the moratorium was needed to develop an effective mechanism for sales and overseeing sales of land and to prevent possible abuses","11","10\/11\/2015","The same as in row 10, but not before 01\/01\/2017","The law extending the moratorium instructed the Cabinet of Ministers to produce the draft CALA and submit it to Parliament by 01\/03\/2016","Lifting the moratorium in times of war and economic crisis would be a threat to national and food security and the threat of a loss of land, as an important national resource. A step-by-step roadmap for introducing agricultural land into circulation, which would be clear to the public, needed to be developed. The moratorium created difficulties in obtaining finance for agricultural production, and led to depopulation of the countryside. In order to solve these and other problems created by the moratorium, the CALA had to be passed and the land eventually introduced into circulation ","12","06\/10\/2016","The same as in row 10, but not before 01\/01\/2018","Draft CALA to be submitted by 01\/07\/2017 Apparently no such draft was submitted by the Cabinet of Ministers by this or the previously set deadlines, although two drafts of the CALA were submitted in 2016 by certain MPs (see paragraph 43 below)","While the creation of a land market was a necessary element of the development of a market economy, the market had to be transparent and fair, competitive and efficient, and be able to prevent shadow transactions. Therefore the \u201cextension\u201d was needed to develop legislation regulating the land market[8]","13","07\/12\/2017","The same as in row 10, but not before 01\/01\/2019","Draft CALA to be submitted by 01\/07\/2018","Abolition of the moratorium in times of war and economic crisis without having in place legislation regulating the circulation of agricultural land would create risks for national and food security. A lifting of the moratorium had to be preceded by legislative work to encourage the creation of a network of strong farmers\u2019 enterprises and cooperatives. The prohibition on the sale of agricultural land was a barrier for attracting investment in the agricultural sector since land could not be used as security for loans, but its lifting could not be the end in itself and needed to be thought of as a measure to encourage investment in the agricultural sector without, at the same time, leading to landlessness among the rural population[9]","22.As at today\u2019s date, the Transitional Provisions of the Land Code prohibit alienation in any form of most agricultural land, including of the categories owned by the applicants, except in cases of inheritance, swap transactions and expropriation for public use. They also prohibit any change in the designated use of such land, except where it has been allocated to an investor under a production-sharing agreement. Currently the Transitional Provisions state that those restrictions are to remain effective until the entry into force of the Circulation of Agricultural Land Act (\u201cthe CALA\u201d), but in any case at least until 1 January 2019.","D.Constitutional matters","23.Article 13 \u00a7 1 of the Constitution of 1996 provides that land, its subsoil, air, water and other resources are the property of the Ukrainian people (\u0454 \u043e\u0431\u2019\u0454\u043a\u0442\u0430\u043c\u0438 \u043f\u0440\u0430\u0432\u0430 \u0432\u043b\u0430\u0441\u043d\u043e\u0441\u0442\u0456 \u0423\u043a\u0440\u0430\u0457\u043d\u0441\u044c\u043a\u043e\u0433\u043e \u043d\u0430\u0440\u043e\u0434\u0443). Article13\u00a74 requires the State to ensure protection of the rights of all property owners and economic players and social orientation of the economy. Article 14 \u00a7 1 provides that land is the main national asset, and is under the special protection of the State. Article 14 \u00a7 2 guarantees the right to land ownership and provides that land ownership may be acquired and exercised by citizens, legal entities and the State in accordance with the law.","24.Article 22 provides that human and citizens\u2019 rights and freedoms are guaranteed and may not be diminished by the enactment of new laws or the amendment of laws that are already in force.","25.Article 41 of the Constitution reads:"," \u201cEveryone shall have the right to own, use, or dispose of his or her property and the results of his or her intellectual or creative activities.","...","No one shall be unlawfully deprived of the right to property. The right to private property shall be inviolable...\u201d","26.On 17 February 2017 fifty-five Members of Parliament lodged an application with the Constitutional Court seeking to have the Law of 6October 2016 reaffirming the moratorium declared unconstitutional.[10] They invoked Articles 13, 14, and 41 of the Constitution set out above as well as Articles 8 (the principle of the rule of law), 24 (non-discrimination), 42(the right to enterprise), 48 (the right to a sufficient standard of living), and 64 (general provision concerning the restriction of constitutional rights) of the Constitution.","On 14 February 2018 the Constitutional Court rejected the application without examining it on the merits. It found the arguments presented in support of that application for abstract review insufficiently developed to permit the opening of the constitutional review proceedings and its substantive examination. It concluded that the application failed to meet the requirements of section 51\u00a7 3 of the Constitutional Court Act which sets out the details an application must contain, namely the reasoning as to why the applicant considered a given provision unconstitutional.","According to the information on the Constitutional Court\u2019s web site, as of 6 April 2018, which appears to be the most recent information publicly available on the date of examination of the case by the Court, there was no new application for constitutional review of the matter in question pending.[11]","E.Taxation and rules governing land ownership","27.Article 281.3 of the Tax Code of 2010 exempts from property tax land rented to commercial agricultural producers benefitting from the simplified taxation regime.[12] Article 281.1.3 exempts old-age pensioners from the payment of land tax.","28.Article 78 \u00a7 1 defines ownership as the right to possess, use and dispose of land.","29.Article 81 \u00a7 2 and Article 82 \u00a7\u00a7 2 and 3 provide that foreign nationals, stateless persons, foreign legal entities and legal entities with foreign capital can only own non-agricultural land of certain categories.","30.Article 91 requires land owners to use land according to its designated use category, respect environmental rules, improve land fertility, respect neighbours\u2019 rights, and so forth. Article 143 provides that a court may order expropriation of land without compensation in cases of failure to respect the designated use of the land or rectify a serious breach of land protection rules despite a warning from the land protection authorities.","31.Article 130 provides that land zoned for commercial agricultural production can only be acquired by a Ukrainian national with sufficient educational qualifications or experience to engage in agricultural production or by a Ukrainian legal entity which has agriculture listed in its articles of association among the types of business it can engage in. The municipality where the land is located, as well as its permanent residents, have a right of first refusal in respect of the land sold.","32.Item 13 of the Transitional Provisions of the Code, as in force in 2001, provided that a single person or entity could not acquire more than 100hectares of agricultural land. The Law of 6 October 2004 (the first extension of the moratorium \u2013 see row 1 of the Table in paragraph 21 above) extended that limitation to 1 January 2015. It expired on that date. However, given that most agricultural land could not be sold throughout the period, it would appear that the restriction never had much practical application.","F.Rules and statistics concerning the land lease market","33.The Land Lease Act (section 21) provides that rent is set by agreement of the parties. However, Presidential Decree no. 92\/2002 of 2February 2002 instructed the Cabinet of Ministers and local executive authorities to take operational measures to ensure that the level of rent under land leases would be at least 3% of the land\u2019s estimated value. According to the statistics published by the State Land Cadastre Agency, in 2013 74.4% of leases provided for rent of at least 3% of the value.[13]","34.Section 19 of the Land Lease Act provides that for the main categories of agricultural land, the term of lease cannot be less than seven years and, for any lease, cannot exceed fifty years.","35.The State Land Cadastre Agency published certain statistics concerning the land lease market in Ukraine on which the parties relied in their submissions:","(i)as at 2013 there were 4,741,400 leases concerning shares of land in former CAEs or plots converted from former shares, covering 17.5 million hectares. Of them 35.5% were with entities which were successors of former collective farms, 14.2% with individual farming enterprises (see paragraph18 above) and 50.3% with other entities. The national average rent was UAH 563.50 (around EUR 48 at the time). 52.2% of landlords were pensioners;[14]","(ii)as at April 2015 the number of leases rose to 4.8 million, the national average annual rent was UAH 727.6 per hectare (about EUR 29 at the time) and the average rent for the Rivne and Ternopil regions, where the first and the second applicant\u2019s land was located, were UAH 1068.80 and 546.10per hectare (EUR42 and 21 respectively).[15]","G.Policy statements and plans, legislative proposals and public attitudes towards the moratorium","36.On 31 May 2002, in his annual address to Parliament on the state of the nation, the President of Ukraine stressed the need to create the structure for an efficient and transparent land market by 2005, when the moratorium would expire. Important aspects were the creation of a transparent property registration system, introduction of the ability to use land as security for mortgage financing and completion of the conversion of shares of land into plots and the issuance of property certificates.[16]","37.Coalition Agreements of 22 June 2006 and 29 November 2007[17] and an action programme of the Cabinet of Ministers of 16 January 2008[18] stated, in nearly identical terms, that the coalition and government had the following priorities: creation of the conditions for the functioning of the land market (issuance of ownership certificates, demarcation of boundaries of plots of land, putting the land cadastre into operation, land valuations, introduction of the mechanism for land market regulation) and then revocation of the moratorium.","38.On 17 June 2009 the Cabinet of Ministers approved the outline of a State programme for the development of land relations until 2020. It noted a number of problems in land relations and listed a number of measures to resolve them, including the gradual introduction into circulation of land and rights to it and the creation and development of a land market.","39.On 7 April 2011, in his annual address to Parliament on the state of the nation, the President of Ukraine stated that the moratorium was preventing the transfer of land to efficient owners, thus slowing down the development of the agricultural sector. Steps in order to introduce a regulated land market had to be taken urgently.[19]","40.On 9 December 2011 Parliament approved the draft Land Market Act at the first reading (see paragraph 21 above).[20] The draft law provided that only citizens of Ukraine, municipalities and the State could acquire agricultural land. A single citizen would not be permitted to own more than 100hectares of land zoned for commercial agricultural production or rent more than 6,000 hectares of such land in any one district or more than 5% of the land in any one region. The caps would also apply to those associated with the individual. The bill provided that owners of neighbouring land would have a right of first refusal in the event of alienation of agricultural land and that such land could not be sold for less than the price determined by an expert, a procedure to be regulated by law. Rezoning of formerly publicly owned agricultural land would be prohibited for ten years after acquisition. The bill also contained a number of other rules aimed at safeguarding the efficient use of agricultural land.","41.On 3 July 2012, in his annual address to Parliament on the state of the nation, the President of Ukraine stated that that year, before revocation of the moratorium, a mechanism for the effective protection of the interests of agricultural producers and of food security of the country needed to be created and their effective functioning secured.[21]","42.In his annual addresses to Parliament on the state of the nation in 2016 and 2017, the President of Ukraine made the following remarks concerning the land moratorium.","On 6 September 2016 he said:","\u201cThe inability to freely sell and buy agricultural land unquestionably inhibits investment in agriculture, reduces and breaches the rights of the rural population, among other things, lease rights, taking the last remaining kopeks out of their pockets. This is axiomatic. However, I am also aware of public opinion on this matter and the position of the majority of parliamentary groups. I value and respect that. But how can we resolve this problem, my dear legislators? This is within your purview. Either to stick your head in the sand and change nothing or to work to create a land market in Ukraine with all the possible safeguards against any possible negative impact.\u201d[22]","On 7 September 2017 he said:","\u201c.. In Estonia they have privatised everything: ports, telecommunications, aviation and even the railways. In Poland out of 8,500 State companies the State has kept only 41. And, by the way, their land has not been bought up by foreigners, despite the fact that the residents of those countries can easily buy and sell agricultural land.","Until now, Ukrainians have been deprived of that right. Millions of people formally own land but it has been decided for them that they are unable to handle it and an unconstitutional moratorium was introduced. Why then do we allow people to sell their flats? Because you know, by this logic, someone could come along and buy them all up.","As a statesman, in making decisions I must have regard to public opinion. For now, unfortunately, it has been formed by the populists. I am not going to put pressure on Parliament to adopt the land reform, I will not do it. But I am asking you to make a resolution, for now at least a silent one, in your minds, in favour of such a reform. Enact such laws which would assuage the phobias, which would remove all the objections, introduce all the necessary safeguards, introduce minimum prices, make registers transparent, protect the rural population but also give them freedom. I am asking you to set, I invite you to set, a specific date when all of this could be launched, even if not today.\u201d[23]","43.On 3 April 2017 the Cabinet of Ministers approved its mid-term action plan for up until 2020 and its priority action plan for 2017. The 2020 plan describes the continuing maintenance of the moratorium as one of the main problems in the agricultural sector that deprives a large number of Ukrainian citizens of the opportunity to exercise their constitutional right to property and obstructs the development of the agricultural market. The plan provides that the problem created by the moratorium could be resolved through nationwide discussion and the introduction of a land market based on a model acceptable to the population. The 2017 plan stated that the draft CALA would be submitted to Parliament in the second quarter of 2017. However, it appears that no such bill has been introduced.[24]","44.The Government submitted information about protest actions led by farmers in early October 2016 in a number of regions, including highway blockades. The farmers called for the restoration of tax benefits for the agricultural sector. One of their demands was also to reaffirm the land moratorium."],"84":["1. The case originated in seventeen applications (43928\/13, 43934\/13, 44107\/13, 44132\/13, 44136\/13, 44140\/13, 44147\/13, 44150\/13, 44152\/13, 44153\/13, 44522\/13, 44526\/13, 44535\/13, 44542\/13, 44548\/13, 44611\/13 and 44632\/13) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by thirty-five Albanian nationals on 30 April 2013.","2. The applicants were represented by Mr D. Matlija and Mr T. Alexandridis, two lawyers practising in Tirana. The Albanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms A. Hicka of the State Advocate \u2019 s Office.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. The applicants, whose personal details are set out in the appended table, are Albanian nationals. They have been grouped according to the family they are part of.","1. Relevant background","5. During the communist period, families lived in State-owned housing in accordance with lease agreements. Private dwellings which passed into State ownership through legislation on nationalisation were given by the communist government to other families, who as a rule worked for State institutions at the time. In such cases, the local authorities issued occupancy authorisations, which had the effect of granting the right to a tenancy of a flat (\u201csecure tenancy\u201d). A secure tenancy agreement was concluded between tenants and the State-owned Housing Maintenance Company ( Nd\u00ebrmarrja Komunale Banesa \u2013 \u201cthe Housing Company\u201d).","6. In 1992, following the end of communist rule, the Privatisation of State-Owned Housing Units Act provided for the privatisation of all State \u2011 owned housing in favour of occupying families. No provision was made for the privatisation of private dwellings which had been nationalised and were occupied by tenants (see \u201cPrivatisation of the State-Owned Housing Units Act\u201d below for detailed information).","7. In 1993 the Property Restitution and Compensation Act was enacted. Former owners or their heirs were entitled to claim restitution of expropriated or nationalised properties as well as compensation. The restitution of dwellings occupied by tenants did not affect the secure tenancy agreements concluded in the meantime, which remained controlled by law (see the \u201cProperty Act 1993\u201d section below for detailed information).","8. In 2004 and 2006 the legislature introduced a time-limit within which tenants had to vacate the dwellings restored to former owners. The said provisions were struck down by the Constitutional Court in 2005 and 2007, respectively (see Constitutional Court \u2019 s decisions nos. 26\/05 and 11\/07 below for detailed information).","2. Circumstances of the applications","9. The applicants had been living as tenants for many years (between twenty-one and sixty-seven years) in housing units that, following the fall of communism, were restored to the former owners. The applicants had been paying State-controlled rent in accordance with domestic law (see \u201cRelevant domestic law\u201d below).","10. On 1 August 2012 the Government introduced a Normative Act ordering tenants to vacate dwellings which had been restored to the former owners (\u201cthe Normative Act 2012\u201d).","11. On 13 September 2012 Parliament enacted a law endorsing the Normative Act 2012.","12. On 20 August 2012 the Association of Tenants living in Expropriated Properties ( Shoqata e Qiramarr\u00ebsve n\u00eb Sht\u00ebpit\u00eb Shtet\u00ebrore Ish Pron\u00eb Private \u2013 \u201cthe Association\u201d) challenged the constitutionality of the Normative Act 2012.","13. On 31 October 2012 the Constitutional Court rejected the Association \u2019 s constitutional complaint and declared the Normative Act 2012 constitutional. The reasoned decision became public on 6 February 2013 (see \u201cDomestic proceedings\u201d in the \u201cNormative Act 2012\u201d section below for detailed information).","14. Pursuant to the Normative Act 2012, eviction orders as well as enforcement writs were issued against the applicants.","15. On 12 December 2012 the Association and 638 tenants, including all the applicants, addressed a petition to the Council of Ministers, claiming that the Normative Act 2012 did not provide effective measures for provision of housing for them. They further called upon the authorities to postpone their eviction until after the Christmas holidays. The end of the letter read as follows: \u201cthe appellants, some members of the Association\u201d (k\u00ebrkuesit, disa an\u00ebtar\u00eb t\u00eb Shoqat\u00ebs s\u00eb Qiramarr\u00ebsve n\u00eb Banesat Shtet\u00ebrore Ish Pron\u00eb Private). No reply was given by the Council of Ministers.","16. None of the applicants possessed any real estate or other alternative housing at the time the eviction orders and the enforcement writs were issued against them. The applicants \u2019 economic status is briefly described in Appendix 1 hereto.","17. In 2013 and 2014 the National Commercial Bank (\u201cthe Bank\u201d) (see \u201cNormative Act 2012\u201d section below for more information) concluded agreements for zero-interest loans with seven families, namely Bakiu (application no. 43928\/13), Toqi (application no. 43934\/13), Kovaci (application no. 44132\/13), Ilirjan Subashi (application no. 44153\/13), Paja (application no. 44535\/15), Vladimir Dhimitri (application no. 44611\/13) and Kadareja (application no. 44632\/13), respectively on 11 September 2013, 28 June 2013, 20 March 2013, 2 August 2013, 25 March 2014, 24 June 2013 and 23 May 2013, disbursing loans in the amounts of 37,000 euros (EUR), EUR 40,700; EUR 28,260; EUR 31,500; EUR 25,440; EUR 40,700; and EUR 18,000, respectively.","18. The applications for a zero-interest loan submitted by the Batku (application no. 44107\/13), Xhillari (application no. 44147\/13), Vincani (application no. 44150\/13), Spahiu (application no. 44522\/13) and Fikaj (application no. 44548\/13) families were refused by the Bank on the grounds that they did not meet its requirements to obtain a loan.","19. The Reci (application no. 44526\/13) and Lulzim Dhimitri (application no. 44542\/13) families were classified as \u201chomeless\u201d ( i pastreh\u00eb ) but failed to complete the documentation necessary to obtain a loan. The authorities did not have any other information in respect of the three remaining families, namely Meta (application no. 44136\/13), Nikolla (application no. 44140\/13) and Bujar Subashi (application no. 44152\/13).","3. Individual situations of the applicants","20. As the file was lacking some information concerning the individual situations of the applicants at the time of the communication of the case to the Government, the Court asked the applicants to submit factual information as regards: the size of the dwelling, the estimated value of the dwelling, the location of the dwelling, the monthly rent paid, the average monthly rent and their monthly earnings. They were further asked to inform the Court whether the eviction orders had been enforced. They were also asked to provide information about their housing situation at that time and how they intended to find long-term accommodation.","21. Only some of the applicants replied in writing, giving some of the information requested by the Court. Detailed information is set out in Appendix 2 hereto.","In reply to the Court \u2019 s question whether the eviction orders had been enforced, only the Bakiu (application no. 4 3928\/13), Reci (application no. 44526\/13) and Paja (application no. 44535\/13) families submitted bailiff records according to which the first two families were evicted on 30 January 2013, whereas the Paja family was evicted on 12 February 2013. The remaining applicants did not submit bailiff \u2019 s records indicating the exact date of their eviction.","The applicants submitted to the Court, amongst other information, the following.","The applicants constituting the Bakiu family (application no. 43928\/13) submitted that a 0% loan had been taken by their niece, who was not a member of the family, since they had not met the Bank \u2019 s requirements for obtaining a loan. They had subsequently bought an apartment, where they were living at the time of the submission.","The applicants constituting the Bujar Subashi family (application no. 44152\/13) submitted that a 0% loan had been granted but they had not been able to use it. Instead, some of the members were renting a flat; the remaining members were accommodated by their relatives.","The applicants constituting the Ilirjan Subashi family (application no. 44153\/13) had received a 3% loan from Tirana Municipality. Since the loan was not adequate they were obliged to solicit the help of another person to obtain another loan from a bank. It would appear that the applicants bought an apartment, where they were living at the time of the submission.","The applicant Mr Reci (application no. 44526\/13) was renting an apartment as he was unable to take a loan from the Bank for failure to meet the relevant requirements.","The applicant Paja (application no. 44535\/13) was granted a 0% loan. It would appear that she bought an apartment where she was living at the time of the submission.","The applicants constituting the Lulzim Dhimitri family (application no. 44542\/13) were renting an apartment at the time of the submission as they did not meet the Bank \u2019 s requirements to obtain a loan.","The applicants constituting the Fikaj family (application no. 44548\/13) were renting an apartment at the time of the submission. Their applications for a 0% loan and social housing had been rejected by the authorities for failure to meet the relevant requirements.","The applicants constituting the Kadareja family (application no. 44632\/13) had received a 0% loan. They had subsequently bought an apartment, where they were living at the time of the submission.","22. The remaining applicants informed their legal representatives that they had been accommodated by relatives, often under cramped conditions. They noted that due to their indigence, they did not have any possibilities of securing alternative housing for themselves and their families other than being provided with social housing.","B. Relevant domestic law and practice","1. Constitution of Albania","23. Article 59 of the Constitution provides, amongst other things, that the State, within its constitutional powers and the means available to it, and with the aim of helping private industry and entrepreneurship, aims to fulfil the housing needs of its citizens. It further provides that the fulfilment of social objectives cannot be claimed directly through the courts. It is the law which defines the conditions under which and the extent to which a person may claim the realisation of this objective.","24. Article 101 of the Constitution empowers the Council of Ministers to introduce Normative Acts in cases of necessity and urgency. Normative Acts contain provisional measures. They have to be endorsed by Parliament in order to have the force of law.","25. Other relevant provisions at the material time read, as follows:","Article 17","\u201c1. The limitation of the rights and freedoms provided for in this Constitution may be established only by law for a public interest or for the protection of the rights of others. A limitation shall be in proportion with the situation that has dictated it.","2. These limitations may not infringe the essence of the rights and freedoms and in no case may exceed the limitations provided for in the European Convention on Human Rights.\u201d","Article 122","\u201c1. Any international agreement that has been ratified constitutes part of the domestic legal system after it is published in the Official Gazette of the Republic of Albania. It is directly applicable, except when it is not self-executing and its application requires the adoption of a law. The amendment and repeal of laws approved by a majority of all members of the Assembly is done by the same majority for the purposes of the ratification of an international agreement.","2. An international agreement ratified by law has priority over the laws of the country that are incompatible with it.","3. The norms issued by an international organization have priority, in case of conflict, over the law of the country when the direct application of the norms issued by the organization is expressly contemplated in the agreement ratified by the Republic of Albania for participation therein.\u201d","Article 131","\u201cThe Constitutional Court shall decide on:","(a) the compatibility of a law with the Constitution or international agreements as provided for under Article 122","...","(c) the compatibility of Normative Acts introduced by central and local authorities with the Constitution or international agreements","...","(f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.\u201d","Article 134 \u00a7\u00a7 1 (f) and 2","1. The Constitutional Court may initiate proceedings only at the request of:","...","(f) political parties and other organisations;","(g) individuals.","2. The entities designated in the first paragraph, letters ... (f) and (g), may lodge applications only on issues connected with their interests.\u201d","2. The Code of Civil Procedure (\u201cthe CCP\u201d)","26. Under Article 609 of the CCP a debtor may seek before the domestic courts to have an executable decision ( titull ekzekutiv ) declared invalid or to have it declared that the obligation does not exist or that it exists in a smaller amount or that it has later ceased to exist.","27. Under Article 610 of the CCP parties may complain to a court of an act or failure to act by a bailiff within five days of the said act or omission.","28. Article 611 of the CCP at the material provided that the appeal before the court against the bailiff \u2019 s acts or omissions had no suspensive effect on the execution. There was a right of appeal against the court decision.","3. Privatisation of State-Owned Housing Units Act (Law no. 7652 of 23 December 1992, as amended)","29. The Act was intended to privatise State-owned housing units and to create a free market for housing, thus enabling tenants to become owners. Families living in State-owned flats, pursuant to a lease agreement, could purchase those flats and become owners subject to completion of a set of actions, such as payment of the full privatisation price and registration of the property at the relevant land registry office.","30. Section 16 of the Act provided that homeless citizens were entitled to receive loans from financial institutions to resolve their housing needs. The interest payments would be borne by the State through the National Housing Agency (Enti Komb\u00ebtar i Banesave \u2013 \u201cthe NHA\u201d).","Section 19 stated that rents for housing units which had previously been private property would be liberalised from December 1995.","Section 21 provided that State-owned housing units which had previously been private property were not privatised under the Act.","Section 25 stated that the State would provide rental housing, which would be constructed in the future, to, inter alia, tenants [who should vacate the housing unit as a result of its return to the former owner] living in dwellings belonging to former owners.","Constitutional Court \u2019 s decision no. 11\/93","31. In decision no. 11 of 27 August 1993 the Constitutional Court held, inter alia, that no discrimination had resulted from the existence of two categories of tenants, as provided for under domestic laws. The decision, in so far as relevant, reads:","\u201cThe [Constitutional] Court observes that [the Privatisation of State-Owned Housing Units Act] and [the Property Restitution and Compensation Act] govern the problems of the privatisation of State-owned housing units and of the restitution of properties to former owners or compensation for them.","Under both laws, tenants of State-owned housing units have the right to take them into private ownership in compliance with the conditions prescribed by the law. In order to resolve their housing needs, tenants of dwellings that have been restored to former owners have been granted the right to receive loans from financial institutions, the interest payments on which ... are to be borne by the State, as expressly provided for in section 16 of the Act, or, alternatively, are to be accommodated as tenants in housing units to be constructed by the State under section 25 of the said Act.","The different solutions to the housing problems that concern these categories of tenants do not arise from any type of discrimination between them, but are a result of the different statuses they enjoy: the first are tenants of State-owned housing units, the second are tenants of dwellings that have been restored to former owners.\u201d","4. Property Restitution and Compensation Act (Law no. 7698 of 15 April 1993, as amended by Laws nos. 7736 and 7765 of 1993, Laws nos. 7808 and 7879 of 1994, Law no. 7916 of 1995 and Law no. 8084 of 1996 and abrogated by Law no. 9235 of 29 July 2004, and amended by Law. no. 9388 of 2005 and Law no. 9583 of 2006) (\u201cthe Property Act\u201d)","32. According to the Property Act the former owners of properties expropriated by the relevant regime and their legal heirs had the right to claim their ownership over the original properties. Upon ownership being determined they were entitled either to have allocated the original immovable property or to be awarded compensation in one of the forms provided for in law.","Other relevant provisions of the Property Act are set out below.","(a) Property Act 1993","33. The relevant provision of the Property Act 1993 provided:","Section 14","\u201cThe relationship between tenants and former owners who become owners\/landlords pursuant to this law shall be governed by [the Privatisation of State-Owned Housing Units Act].","If ... the former owner provides the tenant with housing within the same local \u2011 government area, consisting of a surface area in accordance with the housing norms in force, ... the tenant shall be obliged to vacate the dwelling.","The State is obliged to resolve the housing needs of current tenants in accordance with the current housing norms, by giving priority to families with limited financial means.","At their request former owners may be compensated in one of the forms determined by this law.\u201d","(b) Property Act 2004","34. In so far as relevant, the Property Act 2004, replacing the Property Act 1993, provided:","Section 9","\u201c1. Properties which are the property of former owners shall be vacated by tenant(s) within three years. The tenants shall continue to pay the rent set by the Council of Ministers for two years after the entry into force of this Act. The Council of Ministers shall be responsible for housing homeless tenants by providing a dwelling at a low rent, a low-interest loan or a dwelling whose rent is borne by the State.\u201d","The Constitutional Court \u2019 s decision no. 26\/05","35. In its decision no. 26 of 2 November 2005, the Constitutional Court struck down section 9(1) of the Property Act 2004. It attached importance to the fact that the relevant provision had worsened the status of tenants compared to the provisions that had existed before the Property Act 2004 had entered into force. It found therefore that the amendment to the legislation had not respected the principle of legal certainty. It concluded that a limitation on tenants \u2019 right to shelter could not be justified by the public interest in upholding former owners \u2019 property rights.","(c) Property Act 2006","36. Following the above-cited Constitutional Court decision, in 2006 the legislature amended section 9 of the 2004 Act to read as follows:","Section 9","\u201c1. Properties which are the property of former owners and which were leased to tenants by the State before the entry into force of [the State-Owned Housing Units Act], which are used for housing needs, shall be transferred to the possession of the former owner(s) when one of the following conditions is met:","a. The housing needs of the tenants have been met in any other lawful way;","b. The former owner provides the tenants with a dwelling that has a surface area no smaller than the dwelling they already use and which is in an approximately similar condition and within the same local-government area, until such time as the tenants \u2019 housing needs are met in one of the other ways provided by this section.","c. The tenants conclude a loan contract with a financial institution, in accordance with the first and second paragraphs of section 25 of [the Social Programmes for the Housing of Inhabitants of Urban Areas Act];","d. The tenants benefit from housing or a plot of land as provided for by section 25 (3) of [the Social Programmes for the Housing of Inhabitants of Urban Areas Act]\u201d","...","4. Homeless persons who are tenants in dwellings which are the property of former owners and who have not concluded a loan contract in accordance with sub-paragraph (c) of the first paragraph of this section, or have not yet been provided with housing in accordance with subparagraphs (a), (c) and (d) of the first paragraph of this section, shall lose their right to possess the dwelling by 31 December 2008. They shall be offered social housing programmes, in accordance with section 4 of the Social Programmes for the Housing of Inhabitants of Urban Areas Act. The former owner is entitled to take lawful possession of the dwelling under his legal title.","5. The rent for dwellings occupied by homeless persons as provided for in paragraph 1 of this section is indexed according to INSTAT data on the basis of annual price and salary increases. Its aim is to cover the expenses of the owner for the maintenance and good administration of the dwelling ...\u201d","The Constitutional Court \u2019 s decision no.11\/07","37. In decision no. 11 of 4 April 2007 the Constitutional Court struck down section 9 of the Property Act 2006. It followed the same line of reasoning as in its decision no. 26\/05. It recommended that the Council of Ministers introduce new legislative measures to fill the legal vacuum.","5. Normative Act 2012","(a) Introduction of the Act","38. On 1 August 2012 the Government introduced the Normative Act for the vacation of former owners \u2019 properties which were occupied by tenants. Only those tenants whose names had been transferred to the Bank to obtain a zero-interest loan for a period of thirty years to buy a flat would be evicted. The list of homeless tenants in line to obtain a loan would be drawn up by the NHA and submitted to the Bank by 5 September 2012. The deadline to voluntarily vacate the properties was set as 1 November 2012.","39. In the event of a failure to vacate a flat voluntarily within the prescribed time-limit, the NHA, upon written notification of the former owner, would issue an eviction order, which would be considered an executable decision within the meaning of the Code of Civil Procedure. The NHA would then ask the District Court to issue an enforcement writ for the vacation of the flat. Section 3 bars a stay of execution of the enforcement writ.","40. In addition to a zero-interest loan for a period of thirty years, section 4 of the Normative Act also provides for social rental housing provided by municipal councils and placement of old people who are unable to care for themselves or who do not have the means to pay for social rental housing in retirement homes.","(b) Ombudsman \u2019 s (Avokati i Popullit) opinion","41. On 10 September 2012 the Ombudsman issued a public opinion in relation to the Normative Act 2012. He gave the opinion that the legal vacuum resulting from the striking down of section 9 of the Property Act 2006 should have been filled by Parliament instead of by the Government, that there had been no detailed study as regards the status of homeless families, that the time-limits fixed by the Normative Act were extremely short, that no stay of execution was allowed and that no public interest justified a breach of the principle of legal certainty. In the end, he concluded that the Normative Act 2012 was incompatible with the Constitution.","(c) Parliamentary session of 13 September 2012","42. On 13 September 2012 Parliament endorsed the Normative Act. According to the hearing record of the same day, the ruling majority members of parliament (\u201cMPs\u201d) stated that there were 3,157 families living as tenants in dwellings returned to former owners, of these 1,000 had applied for a loan at the Bank, out of whom 285 had already obtained a loan. The programme of granting a zero-interest loan, meaning that interest payments were to be borne by the State, had been in existence since 2009.","43. According to opposition MPs, the passing of the Normative Act was hasty and required specialised and broader discussions. They requested that the Ombudsman \u2019 s opinion be circulated to MPs.","(d) Proceedings before the Constitutional Court","44. On 20 August 2012 the Association lodged a constitutional complaint with the Constitutional Court, challenging the constitutionality of the Normative Act 2012 and the Law of 13 September 2012 endorsing it. The Association submitted that the solutions provided for by the Normative Act 2012 were incompatible with the principle of legal certainty. They were detrimental to tenants by removing the State \u2019 s obligation to provide housing for this category. They were further discriminated against vis- \u00e0 -vis those tenants who had obtained housing under the State Contribution to Homeless Families Act 1995.","45. The Association also averred that the situation should have been governed by an Act of Parliament instead of a Normative Act introduced by the Government. It further took issue with the lack of a possibility to challenge the stay of the enforcement and the fact that tenants had to voluntarily vacate the flats within a short time-limit, specifically by 1 November 2012.","46. In their additional submissions of 23 October 2012 the Association stated that the Normative Act 2012 did not provide effective solutions on the following grounds: local-government units did not possess the necessary funds and means to provide social housing; the Bank did not possess sufficient funds to provide loans to every homeless family; the majority of the applicants, owing to their age, insufficient earnings, previous criminal records and the lack of collateral, would never become eligible for a loan.","47. In their written submissions of 23 October 2012 to the Constitutional Court, the Ministry of Public Works and Transportation submitted that since 2008 the Government had been implementing a financing scheme of zero \u2011 interest loans to homeless families living in housing belonging to former owners. The statistics showed that out of 3,157 registered homeless families, 999 of them had applied for zero-interest loans, out of which only 285 had concluded contracts for disbursement with the Bank. Even though loans had been approved in respect of the remaining homeless families, they had delayed signing the paperwork for their disbursements. Having regard to the delays by homeless families in applying for zero-interest loans and in subsequently signing the paperwork for their disbursement, the Government had introduced the Normative Act as a matter of urgency. The Normative Act had remedied the former owners \u2019 property-rights issues in accordance with Article 1 of Protocol No. 1 to the Convention and avoided making the State liable to payment of high reparation claims. In their view, there had been no breach of the principle of legal certainty, since the problem of homeless families had been the subject of discussions for the previous twenty years. Moreover, the Normative Act provided for social rental housing provided by local-government units or for accommodation at retirement homes for old people who did not meet the requirements to obtain a loan.","Constitutional Court \u2019 s decision no. 1\/13","48. On 31 October 2012 the Constitutional Court informed the Association that it had unanimously dismissed its constitutional complaint. The reasoned decision became available on 6 February 2013 (decision no. 1\/13).","49. The Constitutional Court found that the Association had legal standing having regard to its statute, act of incorporation, the nature of its activity and the nature of the Normative Act which it had challenged. It found that there was a connection between the aim for which the Association had been established and the constitutional issue brought for examination before the Constitutional Court.","50. In respect of the merits of the case the Constitutional Court found that, pursuant to Article 101 of the Constitution, there was a necessity and urgency to introduce the Normative Act 2012. This was dictated by the fact that former owners had been waiting for twenty years to have title to the dwellings returned to them. It had also been conditioned by the implementation of the Strasbourg Court \u2019 s pilot judgment in the case of Manushaqe Puto and Others (cited above ) as regards the enforcement of final decisions recognising former owners \u2019 right of restitution of their properties or compensation in lieu. It further referenced the Strasbourg Court \u2019 s findings in the cases of Beshiri and Others v. Albania (no. 7352\/03, 22 August 20060), Driza (cited above) and Ramadhi and Others (cited above) and noted the systemic failures of the domestic system to respect former owners \u2019 right of peaceful enjoyment of possessions. It therefore considered that the Normative Act had struck the right balance between the tenants \u2019 rights and the former owners \u2019 right of property.","51. As to the proportionality test, the Constitutional Court held that the Normative Act provided for a thirty-year loan at 0% interest, as the payments would be borne by the State. The interest to be paid would exceed the principal to be taken as a loan by a tenant. Furthermore, the Normative Act laid down other positive obligations for the State, such as the provision of social housing to such tenants by local-government units, priority to be given to social rental housing, as well as placement of old people who were not capable of taking care of themselves or had no one else to attend to them in retirement homes. In the court \u2019 s view, this showed that the State had made sufficient provision for vulnerable groups. Housing these individuals was a shared task between the State and the individuals themselves. The proposed measures could not be said to be arbitrary, unfair or based on an unreasonable assessment. Neither could they be considered to be more stringent; on the contrary, they were more favourable. The obligation for tenants to vacate the dwellings was necessary and the interference was justified by the public interest.","52. The Constitutional Court rejected the Association \u2019 s complaint that the courts could not stay the enforcement on the grounds that its powers of constitutional review did not extend to issues concerning the interpretation, implementation and harmonisation of domestic laws.","(e) Ministry of Urban Development \u2019 s order of 23 December 2013","53. On 23 December 2013 the Ministry of Urban Development ( Ministria e Zhvillimit Urban ) issued an order (\u201cthe Ministry \u2019 s order\u201d) pursuant to which the NHA, before the submission of the request to the District Court for the issuing of the enforcement writ, had to check whether the tenants had obtained a loan and\/or housing in accordance with domestic law. It was also decided that such a request could not be submitted during the winter period. It further provided several safeguards in the event of a family including elderly people, children, disabled persons, or if the housing conditions were outside of normal lifestyle standards. In such a case the family was provided with social rental housing or a housing bonus. The NHA, in implementing section 4 of the Normative Act 2012, had to urgently request that the municipal councils make social rental housing available. It appears that following this order, the NHA suspended the enforcement proceedings in respect of eighteen tenant families.","(f) Other relevant domestic proceedings","54. On an unspecified date F.B. and Sh.B., tenants, instituted judicial proceedings under Articles 609, 610 and 611 of the CCP, challenging the NHA \u2019 s eviction order, the District Court \u2019 s enforcement writ and the ensuing bailiff \u2019 s actions carried out following the introduction of the Normative Act 2012. In that case F.B. and Sh.B. and the former owners had concluded a lease agreement on the basis of a final court decision which had obliged the tenants to pay a rent, as set out by the Council of Ministers in favour of the former owners.","55. F.B. and Sh.B. claimed before the domestic courts that they were not obliged to vacate the dwelling as the lease agreement was valid and still in force. Furthermore, the eviction order had been issued by the NHA, which had no jurisdiction to decide on the civil dispute at issue. Subsequently, the bailiff actions had been invalid too. Also the enforcement writ as issued by the District Court was invalid as the NHA had not been the creditor. Only former owners should have asked the district court to issue an enforcement writ. The tenants further claimed that the Normative Act 2012 did not protect in a proportionate manner the right of tenants to respect for their homes. They were further unable to receive a 0% loan due to their lack of financial means (they were unemployed and did not own any immovable property) and age. They also submitted that the bailiff actions carried out were in breach of Article 8 of the Convention as they had not been proportional in that they had not strike a balance between the former owners \u2019 and the tenants \u2019 interests. They finally asked the District Court to stay the enforcement proceedings and to send the case for trial before the Constitutional Court on account of the unconstitutionality of the Normative Act 2012.","56. On 12 April 2013 the Tirana District Court rejected the action reasoning that upon the entry into force of the Normative Act 2012 the lease agreement concluded between the tenants and the former owner no longer had any legal binding effect. Subsequently, the eviction had been lawful and the tenants were obliged to vacate the dwelling in favour of the former owners. The District Court also noted that the tenants had submitted supporting documents to substantiate their claim that they did not own any immovable property or any other financial mean and they were indeed receiving a retirement and disability pension. However, it reasoned that these were not grounds to challenge an executable decision under Article 609 of the CCP.","57. The District Court rejected the appellants \u2019 claim against the enforcement writ on the ground that the NHA was eligible under the Normative Act 2012 to ask a district court the issuance of an enforcement writ.","58. The District Court also rejected the action under Article 610 of the CCP against the bailiff \u2019 s actions on the ground that the execution had already taken place, namely the dwelling had already been vacated in favour of the former owner. Furthermore, it reasoned that since the tenants had challenged the bailiff actions on the ground that the executable decision was invalid, as long as that decision was valid, so were the bailiff actions.","59. As regards the tenants \u2019 application to send the case for trial before the Constitutional Court, the District Court dismissed it as manifestly ill \u2011 founded in that the Constitutional Court had already examined the constitutionality of that Act in its decision no. 1\/13.","60. As regards the stay of the enforcement proceedings the District Court in the first hearing had already rejected the request by way of an interlocutory decision on the grounds that in the meantime the tenants had already been evicted. Moreover, the tenants had not provided any evidence to prove the existence of irreparable harm. In its decision of 12 April 2013 on the merits of the case the District Court reasoned that Article 611 of the CCP as regards the stay of enforcement proceedings had prevalence over section 3 of the Normative Act 2012, which barred any stay of enforcement.","61. The District Court \u2019 s decision was upheld by the Court of Appeal on 7 October 2014. However, the Court of Appeal noted that the District Court \u2019 s assessment concerning the stay of enforcement had been erroneous since the Normative Act 2012, as lex specialis, had prevalence over the provisions of the CCP. The tenants did not lodge an appeal with the Supreme Court on the grounds that the building had in the meantime been demolished.","62. On two other occasions other tenants had instituted judicial proceedings under Articles 609-612 of the CCP challenging the NHA \u2019 s eviction order, the District Court \u2019 s enforcement writ and the ensuing bailiff \u2019 s actions. The tenants \u2019 representative had lodged complaints with the Ombudsman about the unreasonable length of the judicial proceedings. However, one of the cases was discontinued on the ground that the tenants had not been present at the court hearing without any reason whatsoever. On the other case the tenants had not provided the district court with an adequate address. It appears that both decisions had become final."],"85":["1. The applicants are Russian nationals living in various regions of the Russian Federation. Their personal details appear in the appended table.","2. The Russian Government (\u201cthe Government\u201d) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.","3. On 6 March 2014 complaints under Article 6 \u00a7\u00a7 1 and 3 (d) were communicated to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 \u00a7 3 of the Rules of Court.","4. The facts of the cases, as submitted by the parties, may be summarised as follows.","5. On different dates between 2007 and 2012 different trial courts (see the appended table) convicted the applicants, inter alia, of sexual assault of minors ( \u043d\u0430\u0441\u0438\u043b\u044c\u0441\u0442\u0432\u0435\u043d\u043d\u044b\u0435 \u0434\u0435\u0439\u0441\u0442\u0432\u0438\u044f \u0441\u0435\u043a\u0441\u0443\u0430\u043b\u044c\u043d\u043e\u0433\u043e \u0445\u0430\u0440\u0430\u043a\u0442\u0435\u0440\u0430 ), and sentenced them to imprisonment. The victims of their crimes were between 4 and 8 years old at the time of the events.","6. The convictions were based on a multiplicity of evidence, including statements by the applicants, the victims, their legal representatives, and hearsay witnesses, cross-examinations in the court room of the witnesses summoned to the hearings, psychological and psychiatric examinations of the victims, forensic examinations and documentary evidence. Mr Kiba and Mr Mironov \u2019 s convictions were based as well on the statements given by the educational counsellors. Mr Mironov \u2019 s conviction was further based on the read-out pre-trial statements of an eyewitness \u2013 a victim \u2019 s mother, who on several occasions witnessed sexual abuse of her daughter.","7. The victims in the cases of Mr Kiba and Mr Tikhomirov did not appear in court and their pre-trial statements were read out at the trial on the prosecutors \u2019 requests. Allowing the victims \u2019 pre-trial statements as evidence the trial courts relied in their decisions on the victims \u2019 age, findings of their psychological and psychiatric examinations, opinion of the victims \u2019 legal representatives and educational counsellors. The experts concluded that the questioning of the victim in Mr Kiba \u2019 s case was advisable to conduct in \u201csparing conditions\u201d ( \u0449\u0430\u0434\u044f\u0449\u0438\u0435 \u0443\u0441\u043b\u043e\u0432\u0438\u044f ) due to her young age and individual psychological traits; the victim \u2019 s guardian told the trial court that the victim refused to go to the court. In respect of the victim in Mr Tikhomirov \u2019 s case they found that the victim could not adequately perceive the circumstances important for the case and testify as her long \u2011 time memory was not yet developed and that her questioning in court was not advisable \u201cto avoid her neuroticism\u201d ( \u0432\u043e \u0438\u0437\u0431\u0435\u0436\u0430\u043d\u0438\u0435 \u0435\u0435 \u043d\u0435\u0432\u0440\u043e\u0442\u0438\u0447\u0435\u0441\u043a\u043e\u0433\u043e \u0441\u043e\u0441\u0442\u043e\u044f\u043d\u0438\u044f ). The victim in Mr Mironov \u2019 s case attended one of the hearings accompanied by her mother and an educational counsellor. Her rights were explained to her and following her mother \u2019 s request she left the court room before Mr Mironov \u2019 s indictment was read out. When asked to return to the court room the victim refused, started crying, an ambulance was called and the victim was hospitalised with a diagnosis of acute stress reaction ( \u043e\u0441\u0442\u0440\u0430\u044f \u0440\u0435\u0430\u043a\u0446\u0438\u044f \u043d\u0430 \u0441\u0442\u0440\u0435\u0441\u0441 ). The victim \u2019 s mother and an educational counsellor expressed their opinion that the victim should not be questioned in the court. Taking into account the victim \u2019 s age, state of health and hospitalisation the trial court granted the prosecutor \u2019 s request and read out the victim \u2019 s pre-trial statements. The domestic courts in all three cases were of the opinion that the mentioned circumstances justified the victims \u2019 absence from the trials. The domestic courts analysed the victims \u2019 pre-trial statements and established their coherence and consistency with other evidence. Several defence witnesses, including the applicants \u2019 spouses, relatives and friends, were examined at the trials.","8. The judgments of the trial courts were upheld on appeal."],"86":["6.The list of applicants and the relevant details of the applications are set out in the appended table.","A.Application no. 24688\/05, Shakulina v. Russia","1.Incapacitation proceedings in 2003-04","7.On 5 April 2004 the Vyborgskiy District Court of StPetersburg (\u201cthe Vyborgskiy District Court\u201d) declared the applicant legally incapable in her absence. The applicant submitted that she had only learnt about that judgment on 19April 2004. She lodged her appeal twice, accompanied by requests that the court reset the time-limit for lodging the appeals. On 11October 2004 the Vyborgskiy District Court rejected the applicant\u2019s latest request that the court examine her appeal. On 22December 2004 the StPetersburg City Court upheld that decision on appeal.","2.Reopening of the applicant\u2019s case in 2009","8.On 27 February 2009 the Constitutional Court of Russia declared unconstitutional the practice of divesting people of their legal capacity in their absence, unless their absence resulted from specific circumstances.","9.On 8 June 2009 the applicant sought the reopening of her case in view of the judgment of the Constitutional Court of 27February 2009. After an initial refusal, on 24 September 2009 the StPetersburg City Court quashed the judgment of 5 April 2004 and remitted the applicant\u2019s case for a fresh examination.","10.On 26 November 2009 the Vyborgskiy District Court discontinued the incapacitation proceedings, as the plaintiff, the applicant\u2019s daughter, had failed to attend. The applicant thus regained her legal capacity.","3.The applicant\u2019s confinement in a psychiatric hospital in 2008","11.On 7 March 2008 an emergency doctor was called to attend to the applicant and found that she required hospitalisation. A psychiatrist examined the applicant on her admission to the hospital and confirmed that she was in need of in-patient care.","12.On 10 March 2008 the applicant\u2019s brother, who was her legal guardian at the relevant time, consented to her confinement. Four days later his status as a legal guardian was cancelled and transferred to the hospital. On 31March 2008 the hospital, in that capacity, agreed to the applicant\u2019s involuntary confinement.","13.According to the applicant, the hospital dismissed her requests to be discharged, and she was not allowed to use a mobile phone, send correspondence or receive visitors. When the applicant contacted her lawyer allegedly seeking to update her application before the Court and to challenge her involuntary confinement, he attempted to meet her at the hospital on 13March and 1April 2008, but was refused permission to do so.","14.The applicant\u2019s lawyer then lodged a complaint against the hospital, asserting his right to communicate with his client. The lawyer supported his complaint with a copy of the power of attorney that the applicant had issued to him on 21 June 2005 for her application to the Court. On 9February 2009 the Primorskiy District Court of St Petersburg (\u201cthe Primorskiy District Court\u201d) dismissed the complaint, having noted that the applicant lacked legal capacity to appoint a lawyer.","15.On 10 March 2009 an expert commission issued a two-page report diagnosing the applicant with schizophrenia. It relied on the applicant\u2019s medical history since 2001 and her state of health leading to her hospitalisation in 2008. The experts further stated that during her stay at the hospital, the applicant had been avoiding contact; she had been complaining about her confinement; she had remained suspicious and negative and had maintained her delusional ideas about her neighbours, doctors and other patients. They concluded that the applicant required further psychiatric treatment in the hospital.","16.On the same day the Primorskiy District Court held a hearing concerning the applicant\u2019s involuntary treatment in the psychiatric hospital. The applicant\u2019s doctor presented to the court the expert commission\u2019s report of 10March 2009 and her own opinion confirming that the applicant needed compulsory treatment in the hospital. The applicant was absent from the courtroom during that presentation, but her State-appointed lawyer, Ms L., was present. After the presentation the applicant was brought into the courtroom and was informed about her rights. She then said that she wanted to go home and did not wish to continue her treatment. The judge did not ask her any other questions. Ms L.\u2019s only intervention during the whole hearing was to state that she \u201chad no objections\u201d to the applicant\u2019s continued confinement in the psychiatric hospital. The Primorskiy District Court concluded that the applicant required involuntary treatment in the hospital.","17.On 21 April 2009 the St Petersburg City Court quashed the judgment of 9 February 2009, having flagged a violation of counsel\u2019s right to meet with his client. On 25 May 2009 the applicant met her lawyer.","18.On 8 June 2009 the applicant asked the court to reset the time-limit for lodging an appeal against the judgment of 10 March 2009. On 30 June 2009 the District Court rejected the request.","19.On 15 September 2009 the StPetersburg City Court quashed the decision of 30 June 2009 and reset the time-limit for lodging an appeal against the judgment of 10 March 2009. On 30 September 2009 the StPetersburg City Court examined the appeal and found the applicant\u2019s involuntary treatment lawful.","20.Once the applicant had regained her legal status on 26November 2009 (see paragraph 10 above), she refused to continue her treatment in the hospital and was discharged on 31December 2009.","B.Application no. 62679\/11, Delova v. Russia","1.Incapacitation proceedings","21.On 11 November 2010 the Petrodvortsovyy District Court of StPetersburg (\u201cthe Petrodvortsovyy District Court\u201d) declared the applicant legally incapable. It noted that in view of the fact that Russian law did not provide for partial incapacitation to take into account the degree of a person\u2019s mental disorder, it had no alternative but to deprive the applicant of her full legal capacity. On 17 March 2011 the StPetersburg City Court dismissed an appeal lodged by the applicant, having fully endorsed the Petrodvortsovyy District Court\u2019s reasoning.","2.Re-examination of the applicant\u2019s case","22.On 27 June 2012 the Constitutional Court of Russia examined a complaint lodged by the applicant in relation to her incapacitation and invited Parliament to amend the legislation and introduce the possibility of partial incapacitation (see paragraph 39 below). On 30 December 2012 the Russian Civil Code was amended accordingly; the entry into force of the amendment was delayed until 1 March 2015 (see paragraph 40 below).","23.Following the Constitutional Court\u2019s ruling, on 26 March 2013 the Petrodvortsovyy District Court remitted the applicant\u2019s case for a fresh examination. However, on 6August 2013 the Petrodvortsovyy District Court confirmed its previous decision stripping the applicant of her full capacity, having stated that the amendment to the law had not yet entered into force. On 28 November 2013 the StPetersburg City Court upheld the judgment on appeal.","C.Application no. 51907\/13, Stavitskiy v. Russia","24.On 29 June 2009 the Promyshlennyy District Court of Stavropol, acting in the applicant\u2019s absence, stripped him of legal capacity. The judgment of 29June 2009 was not appealed against and it therefore became final.","25.In October 2012 the applicant sought the restoration of his legal capacity. On 6 March 2013 the Kochubeyevskiy District Court of the Stavropol Region (\u201cthe Kochubeyevskiy District Court\u201d) dismissed the applicant\u2019s request. On 4June 2013 the Stavropol Regional Court upheld that decision on appeal.","26.On 25 July 2016 the Kochubeyevskiy District Court granted the applicant\u2019s application to be declared partially capable.","D.Application no. 69488\/13, Lanskikh v. Russia","27.On 27 January 2009 the Koptevskiy District Court of Moscow (the \u201cKoptevskiy District Court\u201d) declared the applicant legally incapable in his absence. The judgment of 27January 2009 was not appealed against and it therefore became final.","28.On 20 January 2013 the applicant appealed against the judgment of 27January 2009, having asked a court to reset the time-limit for lodging the appeal as he had not been informed about the incapacitation proceedings, had not attended them and had not received a copy of the judgment.","29.On 14 February 2013 the Koptevskiy District Court reset the time-limit for lodging an appeal. On 10September 2013 the Moscow City Court quashed that decision and dismissed the applicant\u2019s request to have the time-limit for submitting his appeal reset.","E.Application no. 69523\/13, Lukin v. Russia","1.Incapacitation proceedings in 2003","30.On 7 August 2003 the Dmitrovskiy District Court of the Moscow Region (\u201cthe Dmitrovskiy District Court\u201d) divested the applicant of full legal capacity in his absence. The judgment of 7 August 2003 was not appealed against and it therefore became final.","2.Incapacitation proceedings in 2013","31.The applicant allegedly learnt that he had been stripped of legal capacity only in 2012. On 24 December 2012 he asked the Dmitrovskiy District Court to reset the time-limit for lodging an appeal against the judgment of 7August 2003. On 22 January 2013 the Dmitrovskiy District Court dismissed the request.","32.On 29 May 2013 the Moscow Regional Court examined an appeal lodged by the applicant against the decision of 22 January 2013. It reset the time-limit and at the same hearing examined the merits of an appeal lodged by the applicant against the judgment of 7 August 2003. Having found that in 2003 the Dmitrovskiy District Court had examined the applicant\u2019s case in his absence despite the lack of any information on the applicant\u2019s ability to attend, the Moscow Regional Court quashed the judgment of 7August 2003. It then proceeded to re-examine the merits of the case. After having heard the parties and basing its findings on a medical expert report of 2003, the Moscow Regional Court again declared the applicant legally incapable.","F.Application no. 51480\/14, Berunenko v. Russia","33.On 4 September 2006 the Zyuzinskiy District Court of Moscow (\u201cthe Zyuzinskiy District Court\u201d) declared the applicant legally incapable. The applicant, who was being treated in a psycho-neurological facility at the time, did not attend the hearing.","34.The applicant allegedly only learned about that judgment in 2013. She asked the court to reset the time-limit for lodging an appeal in view of the lack of notification about the proceedings and her absence from the hearing.","35.On 24 October 2013 the Zyuzinskiy District Court refused to reset the time-limit, having also noted that the Russian law in force at the material time had not called for the mandatory presence of the applicant at the court hearing. On 28 January 2014 the Moscow City Court upheld the decision of 24October 2013 on appeal."],"87":["1. The applicants, Mr Mehmet Ercankan and Ms Muazzez Ercankan, are Turkish nationals who were born in 1970 and 1973 respectively and live in Antalya. They were represented before the Court by Mr A. Mat, a lawyer practising in Antalya.","2. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. On the morning of 15 March 2010 the applicants \u2019 fifteen-year-old son Mesut Ercankan, a student at the Metin \u00c7iviler Public High School in Antalya (\u201cthe high school\u201d), left home and went to school. However, after the second class, he decided to skip school with two other students, H.Y. and Z.G., to go swimming at a nearby dam constructed over the D\u00fcden river, which served as an irrigation channel. It appears that once they reached the dam, Mesut and Z.G. climbed over a bridge enclosed by metal railings and jumped into the water, but Mesut never resurfaced. H.Y. and Z.G. notified his family and the police, and a search was immediately initiated to find him. The rescue efforts were impeded by the fast flowing water, and Mesut \u2019 s body could not be found.","5. The Antalya public prosecutor \u2019 s office (\u201cthe prosecutor \u2019 s office\u201d) initiated an investigation into the incident without delay. The scene was examined and photographed the very same day. Photographs were also taken around the dam and along the D\u00fcden river in order to document the safety measures taken by the authorities to prevent people swimming in the water.","6. On 15 and 18 March 2010 the police questioned Z.G. and H.Y., who mainly told them that after Mesut and Z.G. had jumped into the water, Mesut had never come back out. Although they had seen his head and heard him crying out at some point, they had been unable to find him in the water. Their statements were confirmed by an eyewitness, S.K., on 20 March 2010.","7. On 22 March 2010 Mesut \u2019 s body was recovered from the riverbed some 400 metres below the dam barriers. Following that development, the police prepared a detailed incident report. They also photographed the body and prepared a sketch map of the scene. An autopsy performed subsequently on the body confirmed that the cause of death was drowning.","8. In the meantime, on 20 March 2010 the first applicant (the victim \u2019 s father) had filed a criminal complaint against a number of teachers at the high school, accusing them of failing to promptly notify him of his son \u2019 s absence from school. The prosecutor \u2019 s office sought authorisation from the Kepez district governor \u2019 s office to prosecute the deputy head and three other teachers of the high school under the Prosecution of Civil Servants and Public Officials Act (Law no. 4483).","9. On 26 April 2010 the district governor \u2019 s office refused to authorise the prosecution of the deputy head and teachers in question. It held that there was no obligation under the relevant secondary education regulations to immediately inform parents if their children were absent from school, but the deputy head had nevertheless registered the absences of Mesut Ercankan and his friends in an online attendance register.","10. The first applicant objected to that decision. On 3 June 2010 the Antalya Regional Administrative Court accepted his objection and authorised the prosecution of the deputy head and teachers in question.","11. On 31 August 2010 the first applicant also filed a criminal complaint against the Antalya Regional Directorate of the State Water Board ( Devlet Su \u0130\u015fleri \uf02d \u201cDS\u0130 \u201d) and the Antalya Water and Wastewater Authority ( Antalya Su ve At\u0131ksu \u0130daresi \uf02d \u201cASAT\u201d, which is run by the Antalya municipality), arguing that the authorities in question had not taken the necessary safety measures to prevent access to the dam despite its location in a residential area.","12. On the same day the first applicant was invited to the prosecutor \u2019 s office to give a statement in relation to his complaints. He told the public prosecutor that his son had known how to swim, and that according to information provided by his friends he had deliberately climbed up on the iron railings of the footbridge on the dam to jump into the water. Repeating his previous criminal complaint against the school authorities and teachers, the first applicant stated that had he been informed of his son \u2019 s absence from school in a timely manner, he could have prevented him from going swimming in the dam. He added that officials from DS\u0130 and ASAT had also been responsible for the death, as they had failed to put up safety barriers around the dam.","13. On 1 September and 13 October 2010 the public prosecutor took statements from the deputy head of the high school and the three teachers. They all denied any legal responsibility for the death of Mesut Ercankan.","14. The prosecutor \u2019 s office subsequently sought authorisation from the Antalya governor \u2019 s office (\u201cthe governor \u2019 s office\u201d) to prosecute S. \u00d6 ., the regional director of DS\u0130, and F.Y., the general director of ASAT, under Law no. 4483. The Antalya governor \u2019 s office accordingly ordered that an internal investigation be conducted by an in-house inspector into whether the relevant officials had been responsible for the death of the applicants \u2019 son.","15. On 11 January 2011 the governor \u2019 s office decided not to authorise the prosecution of the relevant directors of DS\u0130 and ASAT. According to the findings of the inspector, there were no specific regulations concerning the safety measures to be taken around dams and irrigation channels. It was nevertheless evident that municipalities, in view of their general legal responsibility to ensure public safety, were expected to take reasonable measures to minimise the dangers posed by such dams or irrigation channels in residential areas. Moreover, the information and evidence provided by DS\u0130 suggested that as standard practice, it required the adoption of various safety measures around all the dams it built and transferred to the municipalities for operation, including the D\u00fcden dam.","16. The inspector stressed that having regard to the size of the irrigation channel in question, which was a natural river about thirty kilometres long, the authorities could not be expected to cover its entire length with wire fencing or the like and maintain the upkeep of such fencing. That said, according to the evidence collected on the day of the incident, both DS\u0130 and the Antalya municipality had taken the necessary measures that could have been reasonably expected of them to ensure the safety of the dam and irrigation channel in question. It was evident from the photographic evidence in the case file that the top and sides of the bridge from which Mesut Ercankan had jumped were covered with iron railings that exceeded his height, and there were warning signs on both sides of the bridge, as well as all along the irrigation channel at regular intervals, indicating that it was dangerous and forbidden to go near or jump into the water. According to the evidence provided by ASAT, there had been 175 such warning signs along the banks of the river at the material time. Moreover, the dam itself was completely surrounded by wire fencing to impede entry, and any fencing removed by trespassers was repaired and replaced regularly by ASAT. There were also concrete safety barriers alongside the parts of the channel that adjoined public roads. The inspector emphasised that Mesut Ercankan had not accidentally fallen into the dam, but had willingly jumped into it despite all those safety measures, putting his own life in danger. In these circumstances, the directors of DS\u0130 and ASAT had not been at fault for his drowning and could not be held criminally liable.","17. The first applicant objected to that decision. On 29 April 2011 the Antalya Regional Administrative Court accepted his objection and authorised the prosecution of the directors in question.","18. On 22 June 2011 the public prosecutor decided not to prosecute the teachers and directors for the death of Mesut Ercankan. He based his decision on the following findings:","(i) Mesut Ercankan had skipped school to go swimming in the dam in question but had drowned as he could not swim very well.","(ii) The deputy head and teachers of the high school had not neglected their duties towards the victim or his parents and, in any event, there was no causal link between their alleged failure to inform the victim \u2019 s family of his absence from school and his death.","(iii) It was evident from the evidence in the case file that DS\u0130 and ASAT had taken the necessary safety measures around the dam at issue but that the victim had nevertheless ignored those measures and climbed over iron railings \u2013 that apparently exceeded his height \u2013 to jump into the channel. In these circumstances, the victim \u2019 s death could not be linked to any omissions on the part of the directors of DS\u0130 and ASAT.","19. The first applicant objected to the public prosecutor \u2019 s decision, complaining that he had based his decision entirely on the statements of the accused without even obtaining an expert report on the circumstances of his son \u2019 s death.","20. On 28 September 2011 the Manavgat Assize Court dismissed the first applicant \u2019 s objection. That decision was served on the applicants on 25 November 2011.","B. Relevant domestic law","21. Article 28 \u00a7 2 of the now defunct Ministry of Education Regulations on Secondary Education Institutions (no. 27305) provided as follows:","\u201cUnauthorised absences of students shall be notified to their parents ... at the end of the fifth and tenth days of their absence. Notifications ... regarding absences may be made by standard post or electronically ...\u201d","22. Detailed information regarding Law no. 4483 (the Prosecution of Civil Servants and Public Officials Act) may be found in the cases of M. \u00d6zel and Others v. Turkey (nos. 14350\/05 and 2 others, \u00a7 133, 17 November 2015) and Aydo\u011fdu v. Turkey (no. 40448\/06, \u00a7\u00a7 37-39, 30 August 2016).","C. Relevant international law","23. The Convention on the Rights of the Child of 20 November 1989 provides, as relevant:","Article 1","\u201cFor the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.\u201d","24. In its General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence, the Committee on the Rights of the Child held as follows:","I. Introduction","\u201c1. ... While the Convention recognizes the rights of all persons under 18 years, the implementation of rights should take account of children \u2019 s development and their evolving capacities. Approaches adopted to ensure the realization of the rights of adolescents differ significantly from those adopted for younger children.","...","5. The Committee recognizes that adolescence is not easily defined, and that individual children reach maturity at different ages. Puberty occurs at different ages for boys and girls, and different brain functions mature at different times. The process of transitioning from childhood to adulthood is influenced by context and environment, as reflected in the wide variation in cultural expectations of adolescents in national legislations, which afford different thresholds for entry into adult activities, and across international bodies, which employ a variety of age ranges to define adolescence. The present general comment does not seek, therefore, to define adolescence, but instead focuses on the period of childhood from 10 years until the 18th birthday to facilitate consistency in data collection.","...","III. The case for a focus on adolescents","...","9. Adolescents are on a rapid curve of development. The significance of the developmental changes during adolescence has not yet been as widely understood as that which occurs in early years. Adolescence is a unique defining stage of human development characterized by rapid brain development and physical growth, enhanced cognitive ability, the onset of puberty and sexual awareness and newly emerging abilities, strengths and skills. Adolescents experience greater expectations surrounding their role in society and more significant peer relationships as they transition from a situation of dependency to one of greater autonomy.","...","IV. General principles of the Convention","Respect for evolving capacities","18. Article 5 of the Convention requires that parental direction and guidance be provided in a manner consistent with the evolving capacities of the child. The Committee defines evolving capacities as an enabling principle that addresses the process of maturation and learning through which children progressively acquire competencies, understanding and increasing levels of agency to take responsibility and exercise their rights. The Committee has argued that the more a child knows and understands, the more his or her parents will have to transform direction and guidance into reminders and gradually to an exchange on an equal footing.","19. The Committee emphasizes that the right to exercise increasing levels of responsibility does not obviate States \u2019 obligations to guarantee protection. Gradual emergence from the protection of the family or another care environment, together with relative inexperience and lack of power, can render adolescents vulnerable to violations of their rights. The Committee stresses that engaging adolescents in the identification of potential risks and the development and implementation of programmes to mitigate them will lead to more effective protection. By being guaranteed the right to be heard, to challenge rights violations and to seek redress, adolescents are enabled to exercise agency progressively in their own protection.","20. In seeking to provide an appropriate balance between respect for the evolving capacities of adolescents and appropriate levels of protection, consideration should be given to a range of factors affecting decision-making, including the level of risk involved, the potential for exploitation, understanding of adolescent development, recognition that competence and understanding do not necessarily develop equally across all fields at the same pace and recognition of individual experience and capacity.","VII. Definition of the child","...","39. States should review or introduce legislation recognizing the right of adolescents to take increasing responsibility for decisions affecting their lives.\u201d"],"88":["1. The applicant, Ms Agnieszka Orzechowska, is a Polish national, who was born in 1971 and lives in Gliwice. She is represented before the Court by Ms E. Draga-Buchta, a lawyer practising in Katowice.","2. The Polish Government (\u201cthe Government\u201d) were represented by their Agent, Mr J. Wo\u0142\u0105siewicz, succeeded by Ms J. Chrzanowska.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","1. Background of the case","4. The applicant was born in 1971 and lives in Gliwice.","5. At the material time, the applicant lived in Mszczon\u00f3w with her mother and brothers. She suffered from mental health problems and was incapable of managing her own affairs. She did not attend school and was illiterate. She submitted that she was humiliated and persecuted by her mother and brothers. She was regularly forced out of the house and stayed in many different places.","6. On 29 September 2004 the applicant \u2019 s brothers requested that the Mayor of Mszczon\u00f3w ( Burmistrz Miasta Mszczonowa ) have the applicant \u2019 s name deleted from the register of tenants ( podanie o wymeldowanie ). The relevant administrative proceedings were instituted on 1 October 2004.","7. On 9 October 2004 these proceedings were stayed, because the Mayor had been informed by the police that an investigation was being carried out into the charges of alleged mistreatment of the applicant by her mother and brothers.","8. On 10 October 2004 the applicant was again thrown out of the house by her family. She was four months pregnant at that time. She claimed that the pregnancy was a result of rape committed by her brothers. Her sister, K.K., took her to her house in Gliwice.","9. On 20 October 2004 K.K. applied to have the applicant declared legally incapacitated.","10. On 3 March 2005 the applicant and K.K., in the presence of police officers, tried to enter the house in Mszczon\u00f3w. This attempt proved unsuccessful because the applicant \u2019 s mother refused to open the door and let them in.","11. On 4 March 2005 the applicant gave birth to a daughter.","12. On 20 June 2005 K.K. lodged a request with the Gliwice District Court to appoint her as temporary advisor ( doradca tymczasowy ) to the applicant in connection with the investigation into her alleged mistreatment in which the latter had victim status.","13. On 24 June 2005 K.K. was appointed by the court as temporary advisor in order to protect the interests of the applicant ( dla ochrony osoby uczestniczki post\u0119powania ). The court found that the applicant had been dependent and could not deal with the administrative matters ( sprawy urz\u0119dowe ).","14. On 23 September 2005 the Gliwice Regional Court ruled that the applicant lacked legal capacity.","15. On 18 October 2005 K.K. applied to be appointed the applicant \u2019 s and her daughter \u2019 s guardian ( opiekun ).","16. On 25 January 2006, K.K. was appointed the applicant \u2019 s and her daughter \u2019 s guardian.","17. On 12 June 2006 K.K. applied to the Mayor of Mszczon\u00f3w to have the names of the applicant and her daughter entered in the register of tenants of the applicant \u2019 s apartment in Mszczon\u00f3w.","2. Proceedings for the restitution of possession","18. On 3 July 2006 K.K. lodged a claim on behalf of the applicant against her mother and brothers for the restitution of her de facto possession in respect of the house in Mszczon\u00f3w under Article 478 of the Civil Code of Civil Procedure.","19. On 15 September 2006 the \u017byrard\u00f3w District Court gave judgment and dismissed the claim holding that the applicant \u2019 s claim had expired. According to the court the applicant lost possession probably in 1990s as she had to move to \u017byrard\u00f3w. Even assuming that she left the house on 10 October 2004, her claim expired pursuant to the one-year time-limit provided for by Article 344 \u00a7 2 of the Civil Code (see paragraph 9 ). It was further considered that the time-limit was absolute and its running could not be stayed under Article 122 of the Civil Code, which provided that the limitation period as regards a person deprived of legal capacity could not end earlier than two years after the appointment of a statutory representative in respect of him or her (or from the cessation of the grounds for such an appointment). The court referred to the Supreme Court \u2019 s resolution of 16 September 1993 (III CZP 125\/93) which concerned the running of limitation periods and their relation to the time-limit for lodging claims for recovery of possession. The District Court considered that the same rule should be applied per analogiam to Article 122 of the Civil Code.","20. On 19 November 2006 the applicant, represented by K.K., appealed against that judgment.","21. On 29 August 2007 the P\u0142ock Regional Court dismissed the appeal. It shared the District Court \u2019 s view in its entirety and added that Article 122 of the Civil Code could not be applied in respect of the time-limit for claims concerning the restitution of possession because of the \u201cpurpose and nature of the claim for restitution of possession\u201d.","B. Relevant domestic law and practice","22. Article 344 of the Civil Code reads as follows:","\u201c \u00a7 1. [A] possessor can claim the restoration of his or her previous state and a cessation of infringements by the person who has willfully infringed his or her right to possession as well as against the person for whose benefit the infringement took place ...","\u00a7 2. The claim shall expire if not vindicated within one year of the infringement. \u201d","23. According to Article 121 of the Civil Code:","\u201cA limitations period does not start and, if started, is suspended:","1) for claims by children against parents - for the duration of the parental authority;","2) for claims by persons who do not have full capacity for legal acts against persons exercising guardianship or curatorship - for the time during which the guardianship or curatorship is exercised;","3) for claims made by one spouse against the other - for the duration of the marriage;","4) for any claims if, due to force majeure, the entitled person cannot bring them before a court or other authority set up to hear cases of a given type - for the duration of the obstacle.\u201d","24. According to Article 122 \u00a7 1 of the Civil Code:","\u201c The limitation period for claims against a person who does not have full legal capacity cannot end earlier than two years from the date of the appointment for him or her of a statutory representative or the cessation of the grounds for such an appointment. \u201d","25. Article 478 of the Code of the Civil Procedure reads as follows:","\u201cIn cases concerning infringement of possession the court shall examine only the latest state of possession and the facts of the infringement; the court shall not examine the right nor the good will of the defendant.\u201c","26. On 16 September 1993 the Supreme Court adopted a resolution (III CZP 125\/93) in the matter. It held that Article 121 of the Civil Code, which concerned the running of the limitation periods in the event of, among other things, force majeure, was not applicable to the preclusive time-limit ( termin prekluzyjny ) referred to in Article 344 \u00a7 2 of the Civil Code. The court noted, firstly, that Polish law had never provided for the possibility to stay the running of the limitation period as regards the restitution of de facto possession. It further noted that the legal impossibility of staying the running of the limitation period within which a de facto possessor could seek legal protection before the courts by way of a claim for possession originated in the aim of protecting such possession and the limited opportunity for assessment of facts."],"89":["5.A list of the applicants and the relevant details of the applications are set out in the appended table.","A.Summary","6.The applicants spent a certain number of hours (see the Appendix) in police custody before their arrests were recorded. Their subsequent complaints to the national authorities were dismissed.","B.Particular applications","1.Application no. 7077\/06, Fortalnov v. Russia","7.At about 10 p.m. on 18 July 2005 the applicant was arrested and taken to a police station, where he was subjected to a body search and questioned.","8.At 5.10 a.m. on 19 July 2005 a criminal case was opened against the applicant on suspicion of drugs possession. At 7.10 a.m. an arrest record was drawn up, following which the applicant was questioned as a suspect.","9.On 20 July 2005 the Dzerzhinskiy District Court of St Petersburg (\u201cthe District Court\u201d) ordered that the applicant should be remanded in custody.","10.The applicant challenged the lawfulness of the above-mentioned decision, claiming that in violation of domestic law, the record of his arrest had been drawn up nine hours after he had been brought to the police station instead of three hours. In the applicant\u2019s opinion, this rendered his subsequent remand in custody unlawful.","11.On 9 August 2005 the St Petersburg City Court (\u201cthe City Court\u201d) found the above-mentioned decision lawful. The appellate court held that the custodial measure had been applied in accordance with domestic law and that the belated drawing up of the arrest record as such could not serve as grounds for releasing the applicant from custody.","12.On 15 September 2005 the District Court extended the applicant\u2019s detention until 31 October 2005.","13.On 22 November 2005 the City Court upheld that decision on appeal. The court acknowledged the fact that the record of the applicant\u2019s arrest had been drawn up after the expiry of the three hours permitted by domestic law. It held, however, that that violation could not automatically lead to the refusal of the investigator\u2019s requests for the application of a custodial measure and its further extension.","2.Application no. 35973\/07, Kalayda v. Russia","14.On 28 June 2007 the applicant threatened a taxi driver with a knife. When the car stopped, two acquaintances of the taxi driver seized the applicant and held him until the arrival of the police. Police officers handcuffed the applicant and took him to a police station at about 4a.m.","15.At about 7 a.m. an investigator opened a criminal investigation into robberies carried out against taxi drivers. At around 9.30 a.m. a police officer talked to the applicant, who allegedly confessed to having committed those robberies. As the applicant was in a state of alcohol-induced intoxication, it was allegedly suggested to him that he wait for the investigator in the hall of the police station while he sobered up. In the meantime the investigator interviewed the victims. At 6 p.m. the investigator drew up an arrest record and questioned the applicant as a suspect.","16.On 30 June 2007 the Norilsk District Court of the Krasnoyarsk Region (\u201cthe District Court\u201d) ordered the applicant\u2019s detention.","17.From October 2007 the prosecutor\u2019s office repeatedly terminated the criminal investigation following complaints of unlawful detention lodged by the applicant. The latest relevant decision was taken on 28April 2008. On 30June 2008 the District Court examined an appeal lodged by the applicant against the decision of 28April 2008. The court established that the applicant had been taken to the police station at about 4 a.m. on 28June 2007 and that the arrest record had been drawn up at 6 p.m. the same day. On the basis of the testimonies given by the applicant and police officers, the court found that the applicant had spent a considerable time in the hallway of the police station without attempting to leave it. The District Court concluded as follows:","\u201cIt follows from the [rules of criminal procedure] that detention should be understood as the restriction of movement of a person placed in a special room under the constant control of law-enforcement personnel.","Such restrictions were not applied in respect of [the applicant]. He became a suspect in a criminal investigation only after the investigator Ch. drew up his arrest record at 6p.m. on 28June 2007.","Regard being had to the above and on the basis of the inquiry conducted, the investigator K. has rightfully concluded that [the applicant] when present at [the police station] had not been restricted in movement and that he had been able to leave the premises. However, he had not done so, which should be interpreted as his staying at [the police station] of his own free will.\u201d","3.Application no. 7814\/08, Masyukov v. Russia","18.On 23 September 2004 the applicant was arrested and taken to a police station. On 24 September 2004 he was questioned as a witness in a murder investigation.","19.It appears that on 24 September 2004 the applicant was charged with the administrative offence of disorderly conduct, but administrative proceedings were not pursued.","20.At 9.55 p.m. on 27 September 2004 an arrest record was drawn up in which it was noted that the applicant was suspected of a criminal offence. On 28 September 2004 the Tsentralnyy District Court of Omsk (\u201cthe District Court\u201d) ordered the applicant\u2019s detention.","21.On 1 November 2006 the Omsk Regional Court (\u201cthe Regional Court\u201d) convicted the applicant of theft, robbery and murder, and sentenced him to twenty years\u2019 imprisonment, running from 23 September 2007, the date of his actual arrest. On 19 December 2007 the Supreme Court of Russia upheld the conviction on appeal.","22.On 27 June 2005 the applicant had sought the criminal prosecution of the police for unlawful detention, alleging ill-treatment from 23 to 27September 2004. His request had been refused on 7 July 2005 and the applicant had challenged the refusal before a court. On 28 January and 22April 2010 the District Court and the Regional Court respectively dismissed his court action. Both courts considered the police officers\u2019 actions as lawful and the allegations of ill-treatment as unsubstantiated.","23.The applicant sought damages for his unlawful detention. On 24February and 27 July 2011 the Pervomayskiy District Court of Omsk and the Regional Court acting on appeal respectively dismissed his claims. The courts found no evidence of unlawful actions against the applicant.","4.Application no. 25724\/08, Chebanu v. Russia","24.On 10 April 2007 an unidentified person broke into the flat of MrI.K., a police officer, threatened him with a scalpel, took a few valuables and absconded. On the same date a criminal investigation was initiated into the matter.","25.At about 5.50 a.m. on 11 April 2007 two police officers took the applicant from his flat to a police station. He was questioned about his whereabouts the previous day. At 11.40 a.m. the applicant participated in an identification parade as a result of which he was identified by the victim, MrI.K.","26.At 2.05 p.m. the police drew up an arrest record, according to which the applicant had been detained at 2 p.m. on 11April 2007 on suspicion of armed robbery. According to the applicant, he was only then informed of the reasons for his arrest.","27.On 12 April 2007 the Avtozavodskiy District Court of Nizhniy Novgorod ordered that the applicant should be remanded in custody.","28.On 11 October 2007 the applicant was found guilty of armed robbery and sentenced to ten years\u2019 imprisonment. He appealed against his sentence, pointing out, in particular, that he had been unlawfully detained at the police station for eight hours on 11 April 2007 and had not been promptly informed of the charges against him.","29.On 1 February 2008 the Nizhniy Novgorod Regional Court upheld the sentence on appeal, stating, amongst other things, that \u201c... no violations of criminal procedure took place during the applicant\u2019s arrest\u201d.","5.Application no. 49087\/08, Chulukov v. Russia","30.At 7.25 p.m. on 16 March 2007 the applicant was arrested during a test purchase of drugs. At 11.30 p.m. on 18 March 2007 an arrest record was drawn up.","31.On 10 January 2008 the Tsentralnyy District Court of Orenburg convicted the applicant and sentenced him to a term of imprisonment running from 16 March 2007. The applicant appealed against the judgment, complaining of, among other things, his unrecorded detention for two days, ill-treatment by police officers during those two days and the inadmissibility of evidence collected during those days. On 21February 2008 the Orenburg Regional Court dismissed those complaints as unsubstantiated and upheld the judgment of 10January 2008.","6.Application no. 61400\/11, Shipanov v. Russia","32.The police arrested the applicant at about 12 noon on 8 July 2011. His arrest record was drawn up at 9.25 p.m.","33.On 10 July 2011 the Zasviyazhskiy District Court of the Ulyanovsk Region (\u201cthe District Court\u201d) ordered the applicant\u2019s detention. The District Court rejected the argument about the actual time of arrest on the grounds that at 12 noon the applicant had been \u201cconveyed\u201d to a police station rather than arrested. On 14 July 2011 the Ulyanovsk Regional Court upheld the detention order on appeal.","7.Application no. 70401\/11, Abbasov v. Russia","34.The applicant was arrested at about 5.10 p.m. on 11 October 2010. An arrest record was drawn up at 2.25 a.m. on 12 October 2010. On 13October 2010 a justice of the peace found the applicant guilty of taking drugs without a medical prescription and sentenced him to one day\u2019s administrative detention, running from 2.40 a.m. on 12 October 2010.","35.On 13 October 2010 the Volzhskiy District Court of the Volgograd Region (\u201cthe District Court\u201d) ordered the applicant\u2019s detention. The District Court relied on the fact that the applicant was suspected of a serious drug-related crime, was a drug addict, and might obstruct the investigation and reoffend. The applicant did not appeal against the detention order.","36.On 6 December 2010 the District Court extended the applicant\u2019s detention. It reiterated that the applicant had been charged with a particularly serious offence and had no official sources of income. The District Court also rejected the applicant\u2019s request for release on bail using his mother\u2019s flat as a caution because he had not produced documents proving the kinship between the applicant and his mother, nor had he proved that she owned the flat or that she was prepared for it to be used as a guarantee. On 17 December 2010 the Volgograd Regional Court (\u201cthe Regional Court\u201d) upheld the court order on appeal. The Regional Court found that the fact that the applicant had no criminal record, had a permanent residence, employment, positive references and an under-age child, had formerly participated in military service and was undergoing hospital treatment were insufficient to warrant his release in view of the severity of the charges against him.","37.On 1 March 2011 the District Court further extended the applicant\u2019s detention on the grounds that he might reoffend and obstruct the investigation. On 5 March 2011 the Regional Court upheld the court order on appeal.","38.On 7 April 2011 the District Court ordered a further extension of the applicant\u2019s detention.","39.On 31 May 2011 the District Court convicted the applicant. The applicant appealed against the judgment, complaining of, among other things, his unrecorded detention. On 26 July 2011 the Regional Court upheld the judgment on appeal.","40.On 20May 2015 the Presidium of the Volgograd Regional Court (\u201cthe Presidium\u201d) quashed the judgment of 31May 2011 and the appeal decision of 26 July 2011 on the grounds that the trial judge had earlier adjudicated the case of his co-accused. The Presidium remitted the applicant\u2019s case for re-trial and ordered his detention. On 1 December 2015 the District Court convicted the applicant of drug dealing. On 16 February 2016 the Regional Court upheld that judgment on appeal.","8.Application no. 5375\/12, Naumenko v. Russia","41.The applicant was arrested by the police at about 6 p.m. on 7September 2011. An arrest record was drawn up at 5.25 p.m. on 8September 2011. It indicated the time of the actual arrest as 4.35 p.m. on 8September 2011.","42.On 10 September 2011 the Sverdlovskiy District Court of Krasnoyarsk ordered the applicant\u2019s detention. On 27 September 2011 the Krasnoyarsk Regional Court upheld the detention order on appeal. The national courts found that the applicant had been arrested in accordance with the procedure prescribed by law.","9.Application no. 10447\/12, Nurayev v. Russia","43.On 26 November 2010 police officers took the applicant to a police station. On 28 November 2010 the applicant was questioned as a witness in respect of the murder of three people. On 29 November 2010 the applicant made a \u201cstatement of surrender and confession\u201d (\u044f\u0432\u043a\u0430 \u0441 \u043f\u043e\u0432\u0438\u043d\u043d\u043e\u0439) in which he confessed to the three murders. On 30November 2010 a record of the applicant\u2019s arrest was drawn up.","44.On 5 May 2011 the prosecuting authorities rejected a request by the applicant to open a criminal case against the police for, inter alia, his unacknowledged detention. On 8 June 2011 the Leninskiy District Court of Chelyabinsk (\u201cthe District Court\u201d) dismissed a complaint by the applicant about the refusal of 5 May 2011 to open a case. The District Court found that on 26 November 2010 the applicant had been taken to the police station and questioned, along with many others, as a witness. It further established that at 11 p.m. on 29 November 2010 he had made a statement of surrender and confession, and that only after that had he been arrested and questioned as a suspect in the presence of a lawyer. The District Court therefore held that no criminal procedure rules had been broken. On 4August 2011 the Chelyabinsk Regional Court (\u201cthe Regional Court\u201d) upheld that judgment on appeal, endorsing the reasoning of the District Court.","45.On 18 October 2011 the Regional Court found the applicant guilty and sentenced him to a term of imprisonment starting from 27November 2010. The trial court considered that despite the arrest record of 30November 2010, the applicant had actually been arrested on 27November 2010. On 27 March 2012 the Supreme Court of Russia upheld the judgment on appeal.","10.Application no. 30658\/13, Yegorin v. Russia","46.On 15 January 2010 Ms A. lodged a criminal complaint against the applicant. At 4.20 p.m. on the same date the applicant was taken to a police station and questioned. An official arrest record was drawn up on 16January 2010.","47.On 30 April 2010 the Usinsk District Court of the Komi Republic (\u201cthe District Court\u201d) convicted the applicant as charged. On 13 July 2010 the Supreme Court of the Komi Republic (\u201cthe Supreme Court\u201d) upheld the conviction on appeal.","48.The applicant asked that 15 January 2010 be recognised as the date of his actual arrest and that the prison term start running from that date. On 13 May 2013 the District Court rejected his claims as unfounded. It accepted that the police had indeed taken the applicant to the police station on 15January 2010, but considered that he had been questioned as a witness on that date and had not been actually detained until his arrest record had been drawn up the following day. On 23 August 2013 the Supreme Court upheld that decision.","11.Application no. 63531\/13, Apayev v. Russia","49.At 8.05 p.m. on 28 December 2012 the police arrested the applicant on a train going to Moscow and placed him in custody. An arrest record was drawn up at 11.25 p.m. the same day. On 30 and 31 December 2012 two police officers accompanied the applicant by train to the town of Tyumen. On 1 January 2013 a new arrest record was drawn up, indicating 6.50 a.m. as the time of the applicant\u2019s arrest. According to the applicant, the initial arrest record of 28 December 2012 had disappeared from his case file. On 2January 2013 the Kalininskiy District Court of Tyumen ordered the applicant\u2019s detention. The court omitted to examine the lawfulness of the applicant\u2019s detention prior to 1 January 2013. On 24 January 2013 the Tyumen Regional Court dismissed an appeal lodged by the applicant against the detention order, having found that his arrest and detention had been lawful.","12.Application no. 2838\/14, Meshchaninov v. Russia","50.At about 4 p.m. on 12 November 2013 the applicant was arrested by the Federal Security Service (\u201cthe FSB\u201d). It appears that he spent the following thirty-four hours handcuffed, first in the FSB officers\u2019 car and then on police premises. He was allegedly denied access to any means of communication or to legal assistance. At 1 a.m. on 14 November 2013 a criminal case was opened against him on charges of fraud. At 2.30 a.m. on 14November 2013 an arrest record was drawn up. Later that day, at 5.30p.m. according to the applicant, the Presnenskiy District Court of Moscow (\u201cthe District Court\u201d) ordered his detention. The District Court rejected a complaint lodged by the applicant of unrecorded detention. On 27November 2013 the Moscow City Court (\u201cthe City Court\u201d) upheld the detention order on appeal. The City Court noted that during the thirty-four hours between the applicant\u2019s actual arrest and his formal arrest as a suspect, he had been \u201cconveyed\u201d to the investigator.","13.Application no. 7442\/15, Tsetiyev v. Russia","51.At about 11 p.m. on 21 September 2014 the police arrested the applicant and took him to a police station. According to the applicant, the police established his identity and place of residence, questioned him, photographed him and took fingerprints. He had not been informed about his rights or the reasons for his arrest. He was released at 6 a.m. on 22September 2014.","52.At 5 a.m. on 23 September 2014 the police took the applicant from his house to a police station for identification by the victim and questioning. The applicant was not provided with legal assistance. At 9 p.m. an investigator drew up a record of the applicant\u2019s arrest for the criminal offence of disorderly conduct. At 9.30 p.m. the applicant was questioned as a suspect without legal assistance. It appears that a lawyer hired by the applicant\u2019s family was not allowed to see his client.","53.On 25 September 2014 the Troitskiy District Court of Moscow ordered the applicant\u2019s detention in view of the gravity of the charges against him, his permanent residence outside of Moscow, and the fact that he was unemployed and had no dependants. The applicant appealed against the court order, complaining, in particular, that the police had failed to inform him about his rights and to provide him with legal assistance. On 31October 2014 the Moscow City Court (\u201cthe City Court\u201d) upheld the detention order on appeal.","54.On 1 October 2014 an investigator charged the applicant with murder and questioned him in the absence of the lawyer hired by his family.","55.On 21 November 2014 the Dorogomilovskiy District Court of Moscow (\u201cthe District Court\u201d) extended the detention of the applicant and his co-defendants. The applicant appealed, complaining that the extension order had been based on the same reasons as before and had been issued in respect of all co\u2011defendants without examining their particular situations. On 16December 2014 the City Court upheld the extension order, endorsing the District Court\u2019s reasoning. On 20 January 2015 the District Court further extended the applicant\u2019s detention on the same grounds. It appears that an appeal lodged by the applicant against that detention extension order was dismissed."],"90":["5.The applicant was born in 1958 and lives in Taurag\u0117 region.","6.Since 1999 she has been diagnosed with several mental disorders, such as schizo-affective disorder, depression, mania, and panic disorder. She has been admitted to psychiatric hospitals multiple times. However, during the events described below, she retained full legal capacity (see paragraph37 below).","7.From February to September 2014 the applicant was given administrative penalties for insulting another person in a public place (minor hooliganism under Article 174 of the Code of Administrative Offences), for threatening a teenager with an electroshock device and for scaring a minor (infringement of children\u2019s rights under Article 1813 of the Code of Administrative Offences).","A.Proceedings concerning the applicant\u2019s compulsory treatment","1.Pre-trial investigation","8.In 2013 the applicant bought a tear-gas dispenser. According to her, she had done so in order to defend herself against some inhabitants of her village who often insulted her because of her mental illness. On 16November2013, at around 7.30 p.m., the applicant sprayed tear gas at a fifteen-year-old called E. It appears that the tear gas caused E. physical pain but she did not suffer any injuries.","9.The Taurag\u0117 police opened a pre-trial investigation against the applicant for breach of public order under Article 284 \u00a7 1 of the Criminal Code. Between November 2013 and January 2014 the police interviewed E. and several other teenagers who had been with her on the evening of 16November2013. They all stated that on that evening they had been \u201changing out\u201d near one of the residential buildings in the village when E. had decided to go to another friend\u2019s house. When she had started walking, the applicant had suddenly appeared from around the corner, quickly approached E. and sprayed her in the eyes with tear gas. E. herself and the other interviewed teenagers stated that although E. had had some verbal conflicts with the applicant in the past, on that evening she had not done anything to provoke the applicant.","10.On 18 December 2013 the police asked a court psychiatric centre in Klaip\u0117da whether, in the light of the applicant\u2019s history of mental illness, it was necessary for her to undergo a psychiatric assessment in order to determine whether she could be held criminally responsible for the offence. A psychiatric expert, having examined the applicant\u2019s medical file, concluded that such an assessment was necessary.","11.On 10 January 2014 the applicant was served with an official notice that she was suspected of having committed the offence provided under Article284\u00a71 of the Criminal Code. She was given State\u2011guaranteed legal aid. She was interviewed on that same day and admitted to having sprayed tear gas at E. However, she claimed to have done so in self\u2011defence \u2013 she stated that on the evening of 16November2013 E. had kicked the door of her apartment and had thrown a stone at her window.","2.Seizure by the police and psychiatric assessment","12.On 28 March 2014 the Taurag\u0117 district prosecutor informed the applicant and her lawyer that, in line with Article 209 of the Code of Criminal Procedure (see paragraph 42 below), it was necessary for the applicant to undergo a psychiatric assessment. The prosecutor appended a list of questions to be submitted to the psychiatric expert and informed the applicant and her lawyer that they had the right to submit additional questions and material for the assessment, as well as to ask for the appointment of a particular expert. The applicant and her lawyer did not respond.","13.On 3 April 2014 the Taurag\u0117 District Court ordered a psychiatric assessment of the applicant. A copy of that order has not been provided to the Court. The applicant later submitted to the domestic courts that she had not been notified of it (see paragraph 22 below).","14.It transpires from the parties\u2019 submissions that on the morning of 15April 2014 the applicant was present at the Taurag\u0117 police station for unspecified reasons, when two police officers handcuffed her, took her to a police car and drove her to the court psychiatric centre in Klaip\u0117da, approximately 110kilometres from Taurag\u0117.","15.A report drawn up on that same day by one of the officers who had seized the applicant read as follows:","\u201cI hereby inform that on 15 April 2014 during the general morning meeting of the Prevention Sub-division, an oral instruction was received from [the chief] to execute the order of the Taurag\u0117 District Court, which ordered that [the applicant] be brought (atvesdinti) to the Klaip\u0117da court psychiatric centre where she was to undergo a psychiatric assessment, in connection with an ongoing pre\u2011trial investigation. [The chief] announced that [the applicant] was waiting outside the Operative Management Division.","At around 8.40 a.m., together with [Officer D.P.], we ordered [the applicant to] go with the police officers into a police car, so that she could be taken to the Klaip\u0117da court psychiatric centre to undergo a psychiatric assessment. However, [the applicant] mockingly responded that police officers did not have the right to take her anywhere, and threatened to have everyone who touched her fired. It was repeated several times [to the applicant] that coercion and special measures could be used against her for refusing to comply with lawful orders of police officers. As [the applicant] was not paying attention to these warnings, I took her hand, but [she] tried to bite my left palm; she did not succeed, so I did not need medical help. [The applicant] began to resist by jostling, stiffening her hands, and trying to get away. By doing so [she] resisted and disobeyed lawful orders. As [the applicant] continued disobeying officers\u2019 lawful orders, with the help of [three other officers] [she] was handcuffed and taken to a [police] car.\u201d","One of the other officers who had participated in the applicant\u2019s seizure submitted a report with essentially the same wording.","16.It is not clear when the applicant was released from the court psychiatric centre and how she returned to her home. The Government submitted that the psychiatric assessment had been completed on the same day and the applicant had not been detained any longer (see paragraph64 below).","17.According to the applicant, the police officers did not explain to her why she was being seized and did not draw up a record of provisional arrest (see paragraph 61 below).","18.On 15 April 2014 the applicant was examined by two court\u2011appointed psychiatrists. The report of the assessment, drawn up on that same day, stated the following:","\u201cThe patient was brought to the assessment by police officers. At the beginning of the assessment she was hostile, outraged by the behaviour of the police, she spoke in a raised voice and refused to provide her anamnestic data. Having calmed down, she provided information about the main events of her life but her narration was characterised by strong emotional reactions (afektas) [which were] inappropriate to the situation, elevated mood and overestimation of herself. She had no complaints about her health, she thought that she was healthy and did not need any help.","...","The patient\u2019s mental state during the assessment. [She had] a complete grasp of the time, the place and herself (orientuota pilnai laike, vietoje ir savyje). [She was wearing] bright make-up and clothes. At the beginning of the assessment [she was] outraged and loudly expressed dissatisfaction that police officers had brought her to the assessment by force, without her consent. She understood the purpose of the assessment. She stated that she did not have any illnesses and did not require treatment. She actively expressed discontent with the law-enforcement authorities and the inhabitants of her area. The patient\u2019s mental condition is characterised by angry mania: joyful moods [which are] not appropriate to the situation, accelerated [mental] associations, excessive activity, at the same time expressions of anger, irritation, short temper. When talking about the major events in her life, she overestimates herself, underlines her achievements in her former professional life, her significant role in educating children at school. She expresses anger at the lifestyle of asocial families in the neighbourhood and the wider area [and says that] she is ready to not put up with it and to fight against it. [She does not display] a critical view of her illness (be esmin\u0117s kritikos susirgimo at\u017evilgiu). She speaks loudly about the criminal allegations against her, denies them and blames the victim, her parents and the surroundings.\u201d","19.The report concluded that the applicant had a chronic mental disorder \u2011 schizo-affective disorder with a type of mania (l\u0117tinis psichikos sutrikimas \u2011 \u0161izoafektinis sutrikimas, manijos tipas), that because of that disorder she had been incapable of understanding and controlling her actions at the time of the alleged criminal offence, and that those circumstances persisted at the time of the assessment. The psychiatrists recommended that the applicant not be called before a court, nor subjected to any procedural measures, and that she be admitted to Roki\u0161kis Psychiatric Hospital for compulsory inpatient treatment.","20.On 22 April 2014 an administrative-violation report was drawn up against the applicant for having violently resisted police officers on 15April2014 (see paragraph14 above). The Taurag\u0117 District Court held an oral hearing on 2 June 2014 in which the applicant was present. Relying on the abovementioned psychiatric assessment (see paragraphs18 and19 above), the court discontinued the administrative proceedings on the grounds that the applicant could not be held liable for the offence.","3.Court proceedings","21.On 3 June 2014 the prosecutor referred the case to the Taurag\u0117 District Court and asked the court to order compulsory medical treatment for the applicant (taikyti priver\u010diam\u0105sias medicinos priemones).","22.On 11 June 2014 the applicant sent a letter to the Taurag\u0117 District Court, stating that she was not aware whether there were any ongoing criminal proceedings against her and asking the court to inform her of any such proceedings and of her procedural status in them. She also stated that she had not been notified of any court order to take her for a psychiatric assessment against her will (see paragraph 13 above) and asked to be provided with a copy of such an order. The following day the applicant received a response from the court informing her of the proceedings concerning compulsory medical treatment (see paragraph 21 above). The court also stated that the file of that case did not contain any order to take her for a psychiatric assessment against her will.","23.On 17 June 2014 the applicant sent another letter to the Taurag\u0117 District Court. In it she asked to be given an opportunity to attend the court\u2019s hearing in the case concerning compulsory medical treatment which would be held on 30 June 2014. She did not receive any response from the court.","24.On 26 June 2014 the applicant was voluntarily admitted to a psychiatric hospital in Klaip\u0117da.","25.On 30 June 2014 the Taurag\u0117 District Court held a hearing in the case against the applicant concerning compulsory medical treatment. The applicant was absent from the hearing but her lawyer was present.","26.The court heard one of the psychiatrists who had examined the applicant (see paragraphs 18 and 19 above). He gave the following responses to the questions submitted to him by the judge and the applicant\u2019s lawyer (the questions were not included in the minutes of the hearing):","\u201cI stand by my responses given in the assessment report.\u201d","\u201cAs of this moment, I cannot say if procedural steps can be conducted with [the applicant]. As I understand from [the documents provided by the court], she is currently undergoing treatment ... I understand that she underwent treatment already in May ... at a psychiatric hospital. The treatment was not effective because [later] she was hospitalised again. I think that it is necessary to order compulsory medical treatment.\u201d","\u201cRight now I cannot say precisely if inpatient treatment at Roki\u0161kis Psychiatric Hospital is necessary because she is currently being treated at [Klaip\u0117da hospital]. [It appears] that that treatment is not sufficiently effective. I recommend inpatient treatment.\u201d","The psychiatrist also stated that the treatment provided to the applicant at the Klaip\u0117da hospital constituted \u201cpsychiatric supervision\u201d (psichikos prie\u017ei\u016bra) which was different from compulsory treatment; the applicant had undergone outpatient treatment before and it had not been effective. He further considered that compulsory treatment was necessary because the applicant lived alone and refused to take medication, and there was nobody to take care of her if her mental health deteriorated.","27.The applicant\u2019s lawyer argued before the court that since the psychiatric assessment the applicant\u2019s mental health had improved considerably because she was undergoing treatment (see paragraph24 above). He submitted that it would not be appropriate to order compulsory treatment without examining the effects of that treatment and that it was therefore necessary to conduct a fresh psychiatric assessment.","28.On 1 July 2014 the Taurag\u0117 District Court adopted a one-and-a-half page decision ordering the applicant\u2019s inpatient treatment under general supervision at Roki\u0161kis Psychiatric Hospital (see paragraph 46 below). The court held that the applicant\u2019s guilt in respect of the criminal offence had been proved by witness testimonies and the applicant\u2019s own statements (see paragraphs 9 and 11 above). It then referred to the findings of the psychiatric assessment that the applicant had a chronic mental disorder which rendered her incapable of understanding and controlling her actions, unable to participate in the pre-trial investigation and the hearing, and for which she required hospitalisation (see paragraphs 18 and 19 above). The court also cited the statements of the psychiatric expert given during the hearing, who also recommended compulsory inpatient treatment for the applicant (see paragraph 26 above). It concluded that at the time of the offence, as well as at the time of the decision, the applicant could not be held criminally responsible (buvo ir \u0161iuo metu yra nepakaltinama). The court exempted the applicant from criminal responsibility and ordered her hospitalisation at the psychiatric hospital in Roki\u0161kis.","29.The applicant lodged an appeal against that decision. She submitted that she had been informed of the possibility to subject her to compulsory treatment only on 12 June 2014 (see paragraph 22 above) and complained that she had not been summoned to the hearing, despite having expressed a wish to attend (see paragraph 23 above). She complained that the first\u2011instance court had not adequately assessed her mental condition because it had not examined her in person, had not heard evidence from the doctor treating her and had not ordered a fresh psychiatric assessment, despite the fact that since June2014 she had been voluntarily undergoing psychiatric treatment. The applicant pointed out that the psychiatrist interviewed by the court had acknowledged that he had been unable to comment on her mental condition at the time of the hearing (see paragraph26 above). The applicant further complained about the court\u2019s decision to hospitalise her rather than order outpatient treatment. She submitted that the court had not assessed whether she had posed a danger to society\u2013the applicant submitted that the offence which she had committed had not been serious and that she had committed it because of the pre\u2011existing conflict between E. and herself and not because of her mental disorder, so the disorder had not made her a danger to others. The applicant also complained about the court\u2019s decision to commit her to a hospital in Roki\u0161kis (more than 200kilometres from Taurag\u0117) and not one which was closer to her home.","30.In the appeal the applicant also raised complaints about being taken for a psychiatric assessment without her consent on 15April2014. She submitted that she had not been informed that a psychiatric assessment had been ordered and had not been provided with a court order to that effect, that a record of provisional arrest had not been drawn up, a lawyer had not been present during the assessment, and she had not been informed about her right to request the removal of experts. She also submitted that the experts\u2019 conclusions had not indicated what kind of assessment had been performed and that they had not been adequately reasoned.","31.On 26 September 2014 the Klaip\u0117da Regional Court held a hearing in which the applicant was absent but her lawyer was present.","32.On that same day the Klaip\u0117da Regional Court adopted a decision which was slightly over two pages long and dismissed the applicant\u2019s appeal. It held that the first-instance court had correctly established all the essential circumstances of the case and had adequately reasoned its findings. The court considered that the danger posed by the applicant to society had been proved by the conclusions of the psychiatric assessment (see paragraphs18 and 19 above) and the psychiatrist heard by the first-instance court (see paragraph 26 above). It also observed that the applicant had been previously treated in psychiatric hospitals seventeen times, which demonstrated that the treatment had not led to any long-term improvement of her mental health. The court concluded:","\u201cAll the aforementioned circumstances demonstrate that [the applicant] is a danger to society, her actions present a threat to others, [and] she cannot ensure adequate medical treatment and care for herself because she lives alone, so outpatient treatment would not be sufficient.","The appellate court considers that the arguments in [the applicant\u2019s] appeal confirm that she cannot critically assess her disorder [and] does not understand the danger presented by her mental condition, nor the need for treatment (apeliaciniame skunde nurodomi argumentai patvirtina, jog ji n\u0117ra kriti\u0161ka savo ligos at\u017evilgiu, nesuvokia savo psichin\u0117s b\u016bkl\u0117s pavojingumo ir poreikio gydytis).\u201d","The court did not address the arguments presented in the applicant\u2019s appeal (see paragraphs 29 and 30 above) any further.","33.On 31 October 2014 the Supreme Court refused to examine an appeal on points of law submitted by the applicant on the grounds that it raised no important legal questions.","4.The applicant\u2019s hospitalisation","34.On 13 November 2014 the applicant was taken by the police to the psychiatric hospital in Roki\u0161kis for compulsory treatment. On 22 May 2015 the Roki\u0161kis District Court ruled, on the basis of the information provided by the hospital, that her mental health had not sufficiently improved, and extended the hospitalisation; the applicant did not appeal against that decision. On 6 November 2015 that same court found that the applicant\u2019s mental health had sufficiently improved, ended her hospitalisation and ordered compulsory outpatient treatment. On 25April2016 the Taurag\u0117 District Court, relying on the recommendation of the doctor in charge of the applicant\u2019s treatment, ended her compulsory outpatient treatment.","B.Subsequent proceedings concerning the applicant","35.On 27 September 2016 the Klaip\u0117da Psychiatric Hospital asked a court to order the applicant\u2019s hospitalisation. It submitted that the applicant had been taken to the hospital by the police, at the referral of a psychiatrist in Taurag\u0117, because her mental health had deteriorated. On that same day the \u0160ilut\u0117 District Court ordered the applicant\u2019s hospitalisation for thirty days.","36.On 28 November 2016 the Taurag\u0117 District Court found the applicant guilty of terrorising others and breaching public order, but considered that she could not be held criminally responsible and thus ordered her psychiatric hospitalisation. However, on 13 April 2017 the Klaip\u0117da Regional Court quashed that decision. It found that those offences had not been committed, and discontinued the proceedings against the applicant.","37.In May 2017 the social-care authorities of the Taurag\u0117 municipality applied to a court to restrict the applicant\u2019s legal capacity in certain areas, relying on her mental disorder and her inability to take proper care of herself. The applicant objected to that request. On 10 August 2017 the Taurag\u0117 District Court, in a hearing in which the applicant and her lawyer were present, declared the applicant legally incapacitated in certain areas, and partly restricted her legal capacity in certain other areas.","According to the information submitted to the Court, the applicant appealed against that decision and at the time of the present judgment the appellate proceedings were pending.","C.Other related proceedings","38.On 17 November 2014 the Taurag\u0117 District Court found E. (see paragraph 8 above) guilty of hitting the applicant in the face and causing her minor bodily harm. The court found that on 3 April 2014 the applicant had tried to take E.\u2019s mobile phone from her and had scratched her face, and E. had then hit her. The court considered that E.\u2019s actions could not be characterised as self-defence but as a deliberate attempt to injure the applicant. E. was sentenced to four months\u2019 deprivation of liberty. The applicant was awarded 300 Lithuanian litai (LTL \u2013 approximately 87euros (EUR)) in respect of non-pecuniary damage.","A.United Nations","51.Article 14 of the United Nations Convention on the Rights of Persons with Disabilities, which was ratified by Lithuania on 27 May 2010 and entered into force on 17 September 2010, reads:","Article 14. Liberty and security of person","\u201c1.States Parties shall ensure that persons with disabilities, on an equal basis with others:","(a)Enjoy the right to liberty and security of person;","(b)Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.","2.States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.\u201d","B.Council of Europe","52.The relevant parts of the Council of Europe Parliamentary Assembly Recommendation 1235(1994) on psychiatry and human rights, adopted on 12April1994, read:","\u201c7.The Assembly therefore invites the Committee of Ministers to adopt a new recommendation based on the following rules:","7.1.Admission procedure and conditions:","a.compulsory admission must be resorted to in exceptional cases only and must comply with the following criteria:","-there is a serious danger to the patient or to other persons;","-an additional criterion could be that of the patient\u2019s treatment: if the absence of placement could lead to a deterioration or prevent the patient from receiving appropriate treatment;","b.in the event of compulsory admission, the decision regarding placement in a psychiatric institution must be taken by a judge and the placement period must be specified ...\u201d","53.The relevant parts of the Recommendation Rec(2004)10 of the Committee of Ministers to member States concerning the protection of the human rights and dignity of persons with mental disorders, adopted on 22September 2004, read:","Article 17. Criteria for involuntary placement","\u201c1.A person may be subject to involuntary placement only if all the following conditions are met:","i.the person has a mental disorder;","ii.the person\u2019s condition represents a significant risk of serious harm to his or her health or to other persons;","iii.the placement includes a therapeutic purpose;","iv.no less restrictive means of providing appropriate care are available;","v.the opinion of the person concerned has been taken into consideration.","2.The law may provide that exceptionally a person may be subject to involuntary placement, in accordance with the provisions of this chapter, for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if:","i.his or her behaviour is strongly suggestive of such a disorder;","ii.his or her condition appears to represent such a risk;","iii.there is no appropriate, less restrictive means of making this determination; and","iv.the opinion of the person concerned has been taken into consideration.\u201d","Article 20. Procedures for taking decisions on involuntary placement and\/or involuntary treatment","Decision","\u201c1.The decision to subject a person to involuntary placement should be taken by a court or another competent body. The court or other competent body should:","i.take into account the opinion of the person concerned;","ii.act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted.","...","3.Decisions to subject a person to involuntary placement or to involuntary treatment should be documented and state the maximum period beyond which, according to law, they should be formally reviewed. This is without prejudice to the person\u2019s rights to reviews and appeals, in accordance with the provisions of Article25.","...\u201d"],"91":["1. The applicant, Ms Ad\u00e9la Makarov\u00e1, is a Czech national, who was born in 1983 and lives in Prague. She was represented before the Court by Mr J. Kmec, a lawyer practising in Prague.","A. The circumstances of the case","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","3. The applicant is the sister of Zden\u011bk Makar.","4. On 21 September 2016, Mr Makar was killed in London. On 23 September 2016, a post-mortem was undertaken by a forensic pathologist. The police identified R.S as a suspect to Mr Makar \u2019 s killing. He was interviewed by the police on three occasions. On 25 September 2016, R.S was charged with Mr Makar \u2019 s murder.","1. The criminal trial against R.S","5. A trial took place between 21 March and 3 April 2017 at the Central Criminal Court, London, before a judge sitting with a jury composed of twelve lay persons.","6. During the course of the trial, the court heard evidence from several eye witnesses to the incident; police officers who attended the scene; and the pathologist who effectuated the post-mortem.","(a) The prosecution and defence cases","7. The prosecution outlined the case against R.S as follows. It was alleged that on the night of 21 September 2016, he had acted aggressively towards Mr Makar in a fast-food take-away. He then followed Mr Makar as he made his way home. A short time later, R.S struck the unarmed Mr Makar on the left side of the rear of his head with an improvised weapon, a bicycle lock. The blow caused Mr Makar to be knocked to the ground, whereupon he was struck at least twice more. The blow to the head caused an acute traumatic subarachnoid haemorrhage. Mr Makar was pronounced dead at the scene.","8. The defence case, based on R.S \u2019 s witness statement and his evidence at trial, can be summarised as follows. It was alleged that R.S and a friend S.S were making their way back to their respective homes from the fast-food takeaway when they were confronted by Mr Makar. Mr Makar attempted to strike S.S. R.S intervened to protect S.S, but in doing so he was struck by Mr Makar. R.S accepted that he struck Mr Makar with the bicycle lock but asserted that he acted in reasonable self-defence of himself and\/or S.S.","(b) Pathological evidence","9. In addition to hearing from the pathologist, the court also had the post-mortem report dated 23 September 2016. The pathologist concluded that a single impact to the region behind the left ear was the probable cause of bleeding into the space surrounding the brain (a subarachnoid haemorrhage) which caused the death. The pathologist noted that at the time of death, Mr Makar \u2019 s blood alcohol level indicated significant intoxication, which made him particularly vulnerable to the haemorrhage. With reference to graphics, the pathologist stated that the shape of the injury caused by the fatal blow was reminiscent of the shape of R.S \u2019 bicycle lock. The absence of broken bones led him to the conclusion that the injury was caused by \u2018 moderate force \u2019.","(c) Trial judge \u2019 s directions","10. At the conclusion of hearing evidence, the trial judge directed the jury on the law. He outlined the legal requirements for murder, manslaughter, and self-defence. He directed the jury on the relevance of RS \u2019 \u2018 good character \u2019 (referring to his lack of previous criminal convictions or cautions). The judge explained to the jury that RS \u2019 \u2018 good character \u2019 could be taken into account when deciding on the credibility of his evidence. He then proceeded to summarise the evidence heard over the course of the trial.","11. In order to assist deliberations, the jury were given an agreed written document, consisting of a sequential list of questions providing a logical route to verdict\/s. Those questions are as follows: (1) Are you sure that the defendant struck the fatal blow to the deceased? (2) Are you sure that the defendant was not acting in lawful sense of defence at the time? (3) Are you sure that at the time the defendant struck the fatal blow he intended at the very least really serious harm to the deceased? (4) Are you sure that at the time the defendant struck the fatal blow he intended to cause the deceased some, not necessarily serious, harm?","(d) Verdict","12. On 3 April 2017, after deliberating for ten hours over the course of two days, the jury delivered a majority verdict finding R.S not guilty both of murder and manslaughter. R.S was discharged.","B. Relevant domestic law and practice","1. Relevant criminal offences and defences in England and Wales","(a) Murder","13. The unlawful taking of life with intent to kill or cause really serious harm constitutes the common law offence of murder, which is punishable by a mandatory sentence of life imprisonment.","(b) Involuntary manslaughter","14. A person is guilty of involuntary manslaughter if he or she commits an unlawful act, which is considered to be \u201cdangerous\u201d, and which leads to the death of another. The requirement of dangerousness has been interpreted to mean an act which \u201call sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm\u201d ( R. v Church [1965] 2 WLR 1220).","(c) Self-defence","15. In England and Wales self-defence is available as a defence to crimes committed by use of force, including murder. The domestic law and practice relating to self-defence was set out in Armani Da Silva v. the United Kingdom [GC], no. 5878\/08, \u00a7 148 to 155, ECHR 2016.","2. The status of omission in the criminal law of England and Wales","16. In general, criminal liability does not arise under common law in respect of a failure to act so as to prevent or avert harm to other individuals. That position is reflected in the case of R v Lowe [1973] QB 702. The defendant had been convicted of both neglecting his child so as to cause it unnecessary suffering or injury to its health and manslaughter. However, the Court of Appeal quashed his manslaughter conviction. Phillimore J stated:","\u201cIf I strike a child in a manner likely to cause harm it is right that if the child dies I may be charged with manslaughter. If, however, I omit to do something, with the result that it suffers injury to its health which results in its death, we think that a charge of manslaughter should not be an inevitable consequence even if the omission is deliberate.\u201d","17. However, criminal liability for an omission may be imposed where there is a duty to act. In R v Khan [1998] Crim LR 830, the defendants were alleged to have supplied a 15-year old girl with heroin, who subsequently overdosed and died. They were convicted of manslaughter by omission at first instance. On appeal, the Court of Appeal held that manslaughter by omission was a type of manslaughter arising from a breach of duty coupled with gross negligence. In order for a person to be criminally responsible for an omission, he had to have a relationship with the victim of such a nature that a duty to act arose.","3. Challenging an acquittal","18. The common law doctrine of autrefois acquit protects a person from being tried for a crime in respect of which he has previously been acquitted. There are however two statutory exceptions to the doctrine. The first is where the acquittal is \u201ctainted\u201d within the meaning of section 54 of the Criminal Procedure and Investigation Act 1996. The second (introduced by sections 75 to 97 of the Criminal Justice Act 2003) is where a prosecutor applies to the Court of Appeal for an order to quash a person \u2019 s acquittal for a qualifying offence. The Court of Appeal must order a retrial if there is new and compelling evidence in the case (section 78) and it would be in the interests of justice for an order to be made (section 79).","19. Judicial review does not appear to be a remedy which is available to challenge an acquittal in criminal proceedings. In Forbes v Attorney General of Jamaica [2009] UKPC 13, the appellant appealed to the Judicial Committee of the Privy Council (JCPC) against the Court of Appeal \u2019 s decision to uphold a ruling refusing permission to bring judicial review proceedings against the respondent. The appellant \u2019 s daughter had been killed in Jamaica. The accused was acquitted by a court of first instance. The appellant had applied for leave to bring judicial review proceedings against the Attorney General to quash the acquittal and declare the trial a nullity. The JCPC found that judicial review was not a remedy available to the appellant. It observed that there is no inherent jurisdiction for one superior court judge to quash the decision of another. In any case, an order of a civil court in judicial review proceedings quashing the acquittal would not bind the judge who presided at the retrial, given that the accused was not a party to the civil proceedings."],"92":["THE CIRCUMSTANCES OF THE CASE","6.The first applicant was born in 1976 and is serving a sentence of imprisonment in the Sverdlovsk region. The second applicant was born in 1950 and lives in Vladivostok.","A.Background to the case","7.In July 2012 the first applicant\u2019s employer, the prosecutor\u2019s office of the Primorskiy Region, provided him with a flat and concluded a tenancy agreement with him. The second applicant was included in the agreement as a member of the first applicant\u2019s family.","8.In August 2012 the second applicant was classified as having a first\u2011degree disability.","9.On 7 October 2014 the first applicant retired from the prosecutor\u2019s office. On the same date he applied to the General Prosecutor of the Russian Federation with a request for the transfer of the title to the flat in question to him.","10.On 8 October 2014 criminal proceedings were initiated against the first applicant in respect of a suspected criminal offence. On the same date he was arrested and on 10 October 2014 he was detained pending investigation. On an unspecified date in 2016 the first applicant was released and placed under house arrest.","11.On 21 November 2014 the first applicant\u2019s request for the transfer of the title to flat in question to him was refused.","B.Eviction proceedings","12.On 25 November 2014 the first applicant received notice to vacate the flat by 5 December 2014.","13.On 26 November 2014 the first applicant\u2019s brother received notice to vacate the flat (the notice was addressed by the prosecutor\u2019s office to the second applicant).","14.In December 2014 the prosecutor\u2019s office brought eviction claims against the applicants on the grounds that the first applicant no longer worked for the prosecutor\u2019s office and that therefore, he and his family had to vacate the flat.","15.The first applicant contested those claims. He submitted that it would be unlawful to evict him and his mother because he, as a retired prosecutor, had a right to acquire ownership of the flat in question. He and his mother had no other housing. In addition, his mother was a retired person and had a first-degree disability.","16.On 27 February 2015 the Frunzenskiy District Court (\u201cthe District Court\u201d) dismissed the eviction claims. The prosecutor\u2019s office appealed against that judgment to the Primorskiy Regional Court (\u201cthe Regional Court\u201d).","17.On 8 June 2015 the Regional Court quashed the judgment of 27February 2015 and delivered a new decision ordering the applicants\u2019 eviction, with no alternative accommodation being provided. The first applicant was represented by a lawyer, K. The second applicant was not present and was not represented in those proceedings. In particular, the Regional Court found that the first applicant and his mother had been provided with a flat for the period of the first applicant\u2019s service in the prosecutor\u2019s office. Under domestic law and the terms of the agreement, the tenants had had to vacate the housing after the termination of the agreement and in the event of their refusal they had had to be evicted with no alternative accommodation being provided. As at the date of the examination of the eviction claims the first applicant had not applied to the Prosecutor General of the Russian Federation for title to the flat in question to be transferred to him; therefore, the District\u2019s Court conclusion as to the absence of any obstacles to the transfer of ownership of the flat in question to the first applicant was in conflict with the circumstances established in the case. As at the date of the examination of the prosecutor\u2019s appeal the question regarding the transfer of ownership of the flat in question to the first applicant had not been decided.","18.The first applicant lodged a cassation appeal against that decision with the presidium of the Regional Court. He complained that the hearing of 8 June 2015 had been held in his absence and that as a result he had been evicted from the only accommodation he had had.","19.On 22 July 2015 a judge of the Regional Court refused to refer the first applicant\u2019s appeal to the Civil Chamber of the Regional Court for examination on the merits. The first applicant lodged a cassation appeal with the Supreme Court of the Russian Federation.","20.On 22 September 2015 the second applicant was evicted from the flat.","21.On 30 September 2015 a judge of the Supreme Court refused to refer the first applicant\u2019s cassation appeal to the Civil Chamber of the Supreme Court for examination.","C.Incapacitation proceedings","22.In June 2015 the first applicant\u2019s brother (Mr D. Pylayev) initiated court proceedings for the second applicant to be deprived of legal capacity and for him to be appointed as her guardian.","23.On 11 May 2016 the District Court declared that the second applicant lacked legal capacity because she was suffering from illness. In particular, the District Court based its decision on an expert report dated 25January2016 which had established that she had been suffering from a mental handicap since 2010 and as a result had not been able to understand or control her actions. That judgment entered into force on 14 June 2016.","24.On 29 June 2016 the local public health department appointed the first applicant\u2019s brother as her guardian."],"93":["1. The applicant, Mr Aleksey Valentinovich Suprunenko, is a Russian national, who was born in 1957 and lives in St Petersburg.","2. The Russian Government (\u201cthe Government\u201d) were represented by their Agent, Mr G. Matyushkin, and then by his successor in that office, Mr M. Galperin.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarized as follows.","4. In the summer of 2008 the applicant travelled from Saint Petersburg to Georgiyevsk for a holiday in a house belonging to his family. Georgiyevsk is a town of 70,000 located in Russia \u2019 s southern province of Stavropol in the North Caucasus. The house in Georgiyevsk had previously belonged to the applicant \u2019 s grandmother, whom he visited both as a child and as an adult.","1. Police detain applicant as suspicious photographer","(a) Applicant \u2019 s version of events","5. On the afternoon of 31 August 2008 the applicant went out for a walk for the purpose of taking photos. At about 6 p.m. as he was walking around a school, with his camera in his hand, a police patrol car pulled up. Two officers carrying rifles approached the applicant. They charged him with littering the ground with sunflower seed husks (a popular snack) and ordered him to accompany them to a police station. The applicant protested and was therefore forced into the patrol car.","6. At the station the officers asked why the applicant had been photographing the school. The applicant explained that he was interested in landscapes, architecture, and street scenes, not specifically the school, but that anyway the school was not a secret installation and might be photographed. He urged the officers to let him go unless they had some other reason for arresting him. The officers replied that photographing the school was reason enough. They searched the applicant \u2019 s pockets but showed no interest in the contents of his camera \u2019 s memory card. An hour later another officer accused the applicant of having escaped from prison and said that he would check if his name was on the fugitives \u2019 database. The applicant denied that accusation.","7. After a while two officers drove the applicant to his house and one of them ordered the applicant to go inside to fetch his ID. He accompanied the applicant to the gate and trespassed on the front yard. The applicant returned with his ID, documents relating to the house, and the ticket for his journey from Saint Petersburg, with which he hoped to justify his presence in the town. Despite his protests, the officers drove him back to the police station.","8. They fingerprinted the applicant, took a \u201cmugshot\u201d photo, and logged his physical features on the police computer. The entry contained the applicant \u2019 s name, date and place of birth, ethnic origin, detention status, permanent and temporary addresses, physical data (height, frame, hair, face colour, eye colour, and tattoos on arms and chest), the custody log reference, the date of arrest, and his ID details. The applicant was told that this data would be held indefinitely. At 8.30 p.m. the police let the applicant go.","(b) Government \u2019 s version of events","9. According to the Government, when the officers approached the applicant in the street they asked him to identify himself and to explain why he was photographing near the school. The applicant \u2019 s answer that he was photographing flowers left the officers unsatisfied. As the applicant could not produce an ID on the spot, the officers took him to the police station.","10. Once there, the applicant asked one of the officers to follow him home so that he could fetch the ID document. The officer offered to give the applicant a lift in his private car and the applicant agreed.","11. When they arrived, the applicant knocked on the door and asked the woman who opened it to bring him his ID. The officer waited outside. The officer then inspected the ID and the applicant agreed to return to the police station for further proceedings.","12. Back at the station, the applicant was photographed and booked into the custody log and a database entitled \u201cLegend\u201d. He was not fingerprinted, subjected to forensic procedures, or charged with any administrative offence. At 6.20 p.m. the applicant was released.","(c) Policeman \u2019 s alleged visit to applicant \u2019 s home to check on his behaviour","13. The applicant alleged that one year after his detention, on 31 August 2009, a police officer visited the house in Georgiyevsk for a preventive conversation. The officer showed the applicant \u2019 s photo to his neighbours and asked them about his behaviour. The neighbours were alarmed and bewildered as to the purpose of that visit.","2. Judicial review of detention","14. After his return to Saint Petersburg, on 22 November 2008, the applicant sought judicial review of his arrest and the retention of his personal details. He asked the court to declare those actions unlawful and to order the deletion of the database record.","15. On 12 January 2010 the Kuybyshevskiy District Court of Saint Petersburg found for the government, concluding that the officers had followed Order 382 of the Stavropol Regional Interior Department dated 18 August 2008. That order had instructed them to look out for photographers showing heightened interest in schools on the eve of 1 September, the start of the academic year. The court blamed the applicant for his failure to convincingly explain his photographic project to the officers and for failing to recognise that his conduct might unnerve the local inhabitants in a region that was wary of terror attacks. The court denied that the applicant had been fingerprinted and found the storage of his personal data lawful.","16. According to the applicant, the District Court overlooked his complaint about the policeman \u2019 s unannounced visit to the family residence in 2009.","17. On 6 July 2010 the Saint Petersburg City Court upheld the lower court \u2019 s judgment and clarified the motives for the arrest. In the court \u2019 s finding, Order 382 sought to avert a repeat of the Beslan hostage tragedy [1] by putting the town police on high alert from 30 August to 2 September 2008. The police had searched schools for explosives and were looking out for potential assailants and hostile surveillance. As the applicant had had no ID on him, the officers had been obliged to take him to the police station and search for his name in the databases of the Federal Security Service and the Interior Ministry. The arrest served the public interest, had been brief, and had done the applicant no harm. The applicant had been spared charges. The logging of the applicant \u2019 s photo and his personal data into the police computer respected his rights.","B. Relevant domestic law [2]","1. Rules governing the detention of suspects","18. The Criminal Code 1996 ( \u0423\u0433\u043e\u043b\u043e\u0432\u043d\u044b\u0439 \u043a\u043e\u0434\u0435\u043a\u0441 \u0420\u043e\u0441\u0441\u0438\u0439\u0441\u043a\u043e\u0439 \u0424\u0435\u0434\u0435\u0440\u0430\u0446\u0438\u0438, \u2116 63-\u0424\u0417 \u043e\u0442 13 \u0438\u044e\u043d\u044f 1996 \u0433. ):","Article 30. Preparations for a crime, and attempted crimes","\u201c1. [A]ny ... intentional creation of conditions to commit a crime shall be deemed to constitute preparations for a crime ....","2. Criminal liability shall ensue from preparations to commit ordinarily grave or especially grave crime....\u201d","Article 205. Act of terrorism","\u201c1. The carrying out of ... actions intimidating the population, and creating the threat of loss of life, of the infliction of significant property damage, or the onset of other grave consequences, for the purpose of influencing the taking of a decision by authorities ... shall be punishable by a term of imprisonment of eight to twelve years....\u201d","19. The Code of Administrative Offences 2001 ( \u041a\u043e\u0434\u0435\u043a\u0441 \u0420\u043e\u0441\u0441\u0438\u0439\u0441\u043a\u043e\u0439 \u0424\u0435\u0434\u0435\u0440\u0430\u0446\u0438\u0438 \u041e\u0431 \u0410\u0434\u043c\u0438\u043d\u0438\u0441\u0442\u0440\u0430\u0442\u0438\u0432\u043d\u044b\u0445 \u041f\u0440\u0430\u0432\u043e\u043d\u0430\u0440\u0443\u0448\u0435\u043d\u0438\u044f\u0445, \u2116 195-\u0424\u0417 \u043e\u0442 30 \u0434\u0435\u043a\u0430\u0431\u0440\u044f 2001 \u0433. ):","Article 27.1. Measures of restraint in administrative proceedings","\u201c1. In order to suppress an administrative offence, to identify the offender, to book the offence (if not possible on the spot), to ensure a rapid and proper trial ... and subsequent enforcement ..., the authorised official ... may apply the following measures of restraint ...:","(i) transfer [to a police station];","(ii) administrative detention ....\u201d","20. The Police Act 1991 ( \u0417\u0430\u043a\u043e\u043d \u0420\u0424 \u043e\u0442 18 \u0430\u043f\u0440\u0435\u043b\u044f 1991 \u0433. \u2116 1026-1 \u00ab \u041e \u043c\u0438\u043b\u0438\u0446\u0438\u0438 \u00bb ):","Section 2. Mission of the police","\u201cThe police has for its mission ... the prevention and suppression of crimes and administrative offences....\u201d","Section 10. Duties of the police","\u201cThe police ... shall","1. prevent and suppress crimes and administrative offences, establish the circumstances leading to their commission and, within the limits of its powers, take measures aimed at the elimination of those circumstances....\u201d","Section 11. Rights of the police","\u201cFor the accomplishment of its mission, the police shall have the right to","...","2. verify citizens \u2019 identity documents if there exist sufficient grounds to suspect the citizens of having committed a crime or of being wanted, or if there exists a reason to institute administrative proceedings against them;","...","5. [e]ffect administrative detention;","...","7. detain and retain in custody ... persons suspected of having committed a crime ...;","...","14. keep [and use] ... registers of natural and legal persons, items, and facts; use information systems for documenting its activities ....\u201d","21. Annex 1 to Order No. 382 of 18 August 2008 issued by the Main Department of the Interior Affairs for the Stavropol Region ( \u041f\u0440\u0438\u043b\u043e\u0436\u0435\u043d\u0438\u0435 \u2116 1 \u043a \u041f\u0440\u0438\u043a\u0430\u0437\u0443 \u0413\u043b\u0430\u0432\u043d\u043e\u0433\u043e \u0423\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u044f \u0412\u043d\u0443\u0442\u0440\u0435\u043d\u043d\u0438\u0445 \u0414\u0435\u043b \u043f\u043e \u0421\u0442\u0430\u0432\u0440\u043e\u043f\u043e\u043b\u044c\u0441\u043a\u043e\u043c\u0443 \u041a\u0440\u0430\u044e \u2116 382 \u043e\u0442 18 \u0430\u0432\u0433\u0443\u0441\u0442\u0430 2008 \u0433. ):","To counter the terrorist threat ... during the preparations for and the holding of \u201cKnowledge Day\u201d on 1 September 2008, the police force of the Stavropol Region must","...","15. Pay special attention to ... persons showing heightened interest in educational establishments and adjacent areas and carrying out photo and video filming. Each incident must be immediately acted upon in accordance with the legislation in force....","2. Rules governing police databases","22. The Personal Data Act 2006 ( \u0424\u0435\u0434\u0435\u0440\u0430\u043b\u044c\u043d\u044b\u0439 \u0437\u0430\u043a\u043e\u043d \u043e\u0442 27 \u0438\u044e\u043b\u044f 2006 \u0433. \u2116 152- \u0424\u0417 \u00ab \u041e \u043f\u0435\u0440\u0441\u043e\u043d\u0430\u043b\u044c\u043d\u044b\u0445 \u0434\u0430\u043d\u043d\u044b\u0445 \u00bb ) :","Section 7. Confidentiality of personal data","\u201c[Processors] of personal data and third parties with access [to that data] shall respect the confidentiality of such data ....\u201d","23. The automated database called \u201cLegend\u201d ( \u0430\u0432\u0442\u043e\u043c\u0430\u0442\u0438\u0437\u0438\u0440\u043e\u0432\u0430\u043d\u043d\u0430\u044f \u0431\u0430\u0437\u0430 \u0434\u0430\u043d\u043d\u044b\u0445 \u00ab \u041b\u0435\u0433\u0435\u043d\u0434\u0430 \u00bb ) was set up by virtue of Order No. 721 (FOUO) of 11 September 2006 of the Ministry of the Interior Affairs of Russia \u201cOn the Experimental Deployment of an Integrated Data Bank of Town (District) Departments of the Interior Affairs in the Southern and North-Western Federal Districts\u201d ( \u041f\u0440\u0438\u043a\u0430\u0437 \u041c\u0438\u043d\u0438\u0441\u0442\u0435\u0440\u0441\u0442\u0432\u0430 \u0412\u043d\u0443\u0442\u0440\u0435\u043d\u043d\u0438\u0445 \u0414\u0435\u043b \u0420\u043e\u0441\u0441\u0438\u0438 \u043e\u0442 11 \u0441\u0435\u043d\u0442\u044f\u0431\u0440\u044f 2006 \u0433. \u2116 721 \u0434\u0441\u043f \u00ab \u041e \u0432\u0432\u043e\u0434\u0435 \u0432 \u043e\u043f\u044b\u0442\u043d\u0443\u044e \u044d\u043a\u0441\u043f\u043b\u0443\u0430\u0442\u0430\u0446\u0438\u044e \u0438\u043d\u0442\u0435\u0433\u0440\u0438\u0440\u043e\u0432\u0430\u043d\u043d\u043e\u0433\u043e \u0431\u0430\u043d\u043a\u0430 \u0434\u0430\u043d\u043d\u044b\u0445 \u0433\u043e\u0440\u043e\u0434\u0441\u043a\u0438\u0445 ( \u0440\u0430\u0439\u043e\u043d\u043d\u044b\u0445 ) \u043e\u0440\u0433\u0430\u043d\u043e\u0432 \u0432\u043d\u0443\u0442\u0440\u0435\u043d\u043d\u0438\u0445 \u0434\u0435\u043b \u042e\u0436\u043d\u043e\u0433\u043e \u0438 \u0421\u0435\u0432\u0435\u0440\u043e - \u0417\u0430\u043f\u0430\u0434\u043d\u043e\u0433\u043e \u0444\u0435\u0434\u0435\u0440\u0430\u043b\u044c\u043d\u044b\u0445 \u043e\u043a\u0440\u0443\u0433\u043e\u0432 ). That Order was preceded by Order No. 91 (FOUO) of 30 April 2004 of the Main Department of the Interior Affairs for the Stavropol Region \u201cOn the creation, record-keeping, and use of the automated centralised operational \u2011 reference, search and criminal registers of the Interior Affairs bodies of the Stavropol Region\u201d ( \u041f\u0440\u0438\u043a\u0430\u0437 \u0413\u043b\u0430\u0432\u043d\u043e\u0433\u043e \u0423\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u044f \u041c\u0438\u043d\u0438\u0441\u0442\u0435\u0440\u0441\u0442\u0432\u0430 \u0412\u043d\u0443\u0442\u0440\u0435\u043d\u043d\u0438\u0445 \u0414\u0435\u043b \u0420\u043e\u0441\u0441\u0438\u0438 \u043f\u043e \u0421\u0442\u0430\u0432\u0440\u043e\u043f\u043e\u043b\u044c\u0441\u043a\u043e\u043c\u0443 \u043a\u0440\u0430\u044e \u043e\u0442 30 \u0430\u043f\u0440\u0435\u043b\u044f 2004 \u0433. \u2116 91 \u0434\u0441\u043f \u00ab \u041e \u043f\u043e\u0440\u044f\u0434\u043a\u0435 \u0444\u043e\u0440\u043c\u0438\u0440\u043e\u0432\u0430\u043d\u0438\u044f, \u0432\u0435\u0434\u0435\u043d\u0438\u044f \u0438 \u0438\u0441\u043f\u043e\u043b\u044c\u0437\u043e\u0432\u0430\u043d\u0438\u044f \u0430\u0432\u0442\u043e\u043c\u0430\u0442\u0438\u0437\u0438\u0440\u043e\u0432\u0430\u043d\u043d\u044b\u0445 \u0446\u0435\u043d\u0442\u0440\u0430\u043b\u0438\u0437\u043e\u0432\u0430\u043d\u043d\u044b\u0445 \u043e\u043f\u0435\u0440\u0430\u0442\u0438\u0432\u043d\u043e - \u0441\u043f\u0440\u0430\u0432\u043e\u0447\u043d\u044b\u0445, \u0440\u043e\u0437\u044b\u0441\u043a\u043d\u044b\u0445 \u0438 \u043a\u0440\u0438\u043c\u0438\u043d\u0430\u043b\u0438\u0441\u0442\u0438\u0447\u0435\u0441\u043a\u0438\u0445 \u0443\u0447\u0451\u0442\u043e\u0432 \u043e\u0440\u0433\u0430\u043d\u043e\u0432 \u0432\u043d\u0443\u0442\u0440\u0435\u043d\u043d\u0438\u0445 \u0434\u0435\u043b \u0421\u0442\u0430\u0432\u0440\u043e\u043f\u043e\u043b\u044c\u0441\u043a\u043e\u0433\u043e \u043a\u0440\u0430\u044f \u00bb )."],"94":["5.The applicant was born in 1963 and lives in Nova Pazova.","6.From 1991 until 2001 the applicant lived with M.K. The couple had two children, a daughter, J.G., born on 20January 1992 and a son, M.G., born on 28July 1994.","7.M.G. has a moderate intellectual disability.","A.Civil proceedings (child custody and maintenance, including adoption of an interim contact order)","8.By a decision of the Stara Pazova Social Care Centre (\u201cthe Social Care Centre\u201d) of 9January 2001, custody of the children was given to M.K. By the same decision the applicant was given contact with the children every other weekend from 6p.m. on Friday to 6p.m. on Sunday and during the first half of the summer and winter school holidays. The decision provided that the applicant had to collect and return the children outside M.K.\u2019s family home.","9.On 30June 2005 the Social Care Centre suspended the enforcement of the decision of 9January 2001 at the applicant\u2019s request, as he intended to assert his parental rights in judicial proceedings.","10.On 11August 2005 the applicant applied to the Stara Pazova Municipal Court for sole custody of the children.","11.On 27December 2005 the Stara Pazova Municipal Court issued an interim contact order giving the applicant contact with the children every other weekend from 6p.m. on Friday to 6 p.m. on Sunday and during the first half of the summer and winter school holidays. The order was to remain in force until the final resolution of the custody proceedings.","12.On 2February 2006 the interim contact order was upheld by the Sremska Mitrovica District Court (\u201cthe District Court\u201d).","13.On 11September 2008 the Stara Pazova Municipal Court decided that the applicant\u2019s civil claim had to be considered withdrawn because neither he nor M.K. had given valid reasons for their failure to attend the main hearing that day. On 11December 2008 the District Court upheld that decision.","14.On 17October 2011 the Sremska Mitrovica Basic Court Stara Pazova Judicial Unit (the Stara Pazova Municipal Court having ceased to exist following the 2010 judicial reform \u2013 hereinafter \u201cthe Sremska Mitrovica Basic Court\u201d) revoked the interim contact order of 27December2005 given that the custody proceedings had terminated on 11December2008. The applicant was ordered to pay 30,625 dinars (approximately 257euros (EUR)) to M.K. in legal costs together with statutory interest. That decision became final on 10November 2011.","B.Enforcement of the interim contact order","15.On 18January 2006, at the applicant\u2019s request, the Stara Pazova Municipal Court ordered enforcement of the interim contact order (seeparagraph11 above) by a court bailiff. The enforcement order was upheld by the District Court on 17March 2006.","16.On 20January 2006 a first attempt to enforce the contact order was made. A bailiff went to M.K.\u2019s home, but J.G. refused to see the applicant. M.G. wanted to see him, but M.K. refused to let him go without his sister.","17.J.G. and M.G. stayed with the applicant for the weekend of 7 to 9April 2006.","18.In another attempt to enforce the contact order on 21April 2006, the bailiff and the applicant went to M.K.\u2019s home. The children\u2019s maternal grandmother Z.K.V. told them that M.K. and the children were away. In later criminal proceedings against M.K. (see paragraph45 below), it was established that the applicant had not been meant to have contact that weekend as it had been the third weekend in the month.","19.On 5May 2006 another attempt was made to enforce the interim order, but M.K. told the bailiff that the children did not want to see the applicant.","20.On 19May 2006, in another attempt to enforce the contact order, M.K. informed the bailiff that the children were on a school trip. The applicant, who was also present, requested the assistance of the police at the next enforcement attempt.","21.On 2, 16 and 23June, 14July and 22September 2006 other attempts to enforce the contact order were made. At every attempt J.G. refused to see the applicant and M.K. did not want to let M.G. go alone.","22.On 5July 2006 the Stara Pazova Municipal Court fined M.K. 5,000dinars for non-compliance with the enforcement order of 18January 2006 (see paragraph15 above).","23.On 27October 2006 J.G. again refused to see the applicant, despite M.K.\u2019s insistence that she should go. As before, M.K. refused to let M.G. go without his sister.","24.On 10November 2006 the enforcement was attempted in the presence of a police officer, the bailiff and the applicant. J.G. refused to see the applicant and M.K. refused to let M.G. go alone.","25.On 24November, 8 and 22December 2006 J.G. again refused to see the applicant, and M.K. refused to let M.G. go alone. Furthermore, on the latter date M.K. threatened to press criminal charges against the bailiff and the applicant.","26.On 4April 2007 the Stara Pazova Municipal Court heard J.G. and M.G. in the presence of a child psychologist from the Social Care Centre. The children stated that they did not want to have contact with their father because they were afraid of him. J.G. said that the applicant had yelled at her before and that once, when they had been in a coffee bar together, he had snatched her mobile phone from her hand. Another time, when they had been playing in the swimming pool in their mother\u2019s garden, the applicant had grabbed M.G. and taken him to a coffee bar, threatening not to return him.","27.On 11September 2008 the custody proceedings were terminated because the applicant and M.K. failed to attend the main hearing without valid reasons (see paragraph13 above).","28.On 3February 2009 the Stara Pazova Municipal Court decided to obtain an opinion and recommendation from the Social Care Centre concerning the continuation of the enforcement proceedings and the possible harm it might have on the children\u2019s development.","29.In its opinion of 30March 2009 the Social Care Centre reported that the relationship difficulties between the applicant and M.K. had persisted after their separation and had transformed into arguments over parental rights. Moreover, J.G. had developed strong resistance to her father. She was ashamed and afraid of him because of his behaviour during the time the family had lived together. In addition, M.G. did not want to see the applicant without his sister. The Social Care Centre further reported that M.K. was unable to give support to her children in order to overcome the difficulties in maintaining contact with their father. She claimed that she had not forbidden the children from having contact with him, but was unable to influence her daughter\u2019s opinion. However, M.K. had never expressed the desire to attend counselling or any other specialist therapy, even though it had been suggested several times.","30.In the past three years the applicant had not once seen J.G., but submitted that he had occasionally met with M.G. at his school during the recess. In such circumstances he had been unable to exercise his parental rights and had had no other way of maintaining contact with his children. The absence of contact had made it impossible for him to create a good interaction with his children. The opinion concluded that the continuation of the enforcement proceedings would put additional pressure on the children and create even greater resistance, particularly in J.G. It suggested the use of other methods provided for by law to create the conditions to enable the father to exercise his parental rights.","31.On 14August 2009 the Stara Pazova Municipal Court scheduled a meeting between the applicant and the children for 4September 2009 at M.K.\u2019s home in the presence of a bailiff and social workers.","32.On 4September 2009, in the presence of a psychologist and a social worker, a bailiff and the applicant, J.G. and M.G., both visibly distressed, stated that they did not want to see the applicant.","33.On 25February 2011 the Sremska Mitrovica Basic Court (seeparagraph14 above) held a hearing at which M.K., J.G., M.G. and the applicant were heard separately. A psychologist and a social worker from the Social Care Centre were also present. The court noted that shortly before the hearing an ambulance had had to be requested for M.G., who had been displaying signs of an anxiety attack. At the hearing J.G. and M.G. stated that they did not want to have contact with their father and that he was violent towards them. J.G. said, in particular, that the relationship with her father and his attempts at maintaining contact had affected her psychologically (she was afraid to go outside the home alone at night). She said further that the applicant exerted a psychological pressure on M.G. After meeting his father M.G.\u2019s behaviour always changed and he would say offensive things to his mother and grandmother. M.K. stated that she had not obstructed the enforcement of the contact order \u2013 the children had not wanted to see the applicant. The social worker stated that at the court\u2019s request the Social Care Centre would submit a proposal on the possibility of maintaining contact between the applicant and M.G., who was still a minor. The applicant insisted on continuation of the enforcement.","34.On 1March 2011 the Sremska Mitrovica Basic Court ordered the Social Care Centre to hear the applicant, M.K. and M.G. separately concerning the possibility of maintaining contact between the applicant and M.G. and to prepare an opinion on M.G.\u2019s physical and mental health and development. In particular, the court referred to M.G.\u2019s statements given at the hearing of 25February 2011 (see paragraph33 above) and the fact that he had suffered an anxiety attack before that hearing. While the applicant, as a parent, had the right to maintain contact with his child, M.G.\u2019s wishes, needs and best interests had to be taken into account. In a situation where M.G. refused to see his father, the court considered that it was in everyone\u2019s interests to realise the contact gradually with the assistance of the Social Care Centre until the conditions for uninterrupted enforcement of the contact order were created.","35.On 26May 2011 the Social Care Centre submitted its opinion to the Sremska Mitrovica Basic Court. It stated that M.G. had a moderate intellectual disability and needed help with dressing, personal hygiene and feeding himself. He was very close to his mother and sister, and felt loved and accepted by them. M.K. stated that she was not preventing M.G. from seeing his father, but feared for his health. She believed that M.G. was afraid of his father because of two previous incidents. According to M.K., on one occasion the applicant had grabbed M.G. from their garden; another time he had allegedly forced open M.G.\u2019s mouth to check his teeth. The opinion stressed, however, that according to the information submitted by M.G.\u2019s school, he had occasionally met his father at school. The meetings had always been warm and affectionate and M.G. had never displayed any signs of fear or anxiety. According to the opinion, the applicant was very keen to maintain contact with his children and cooperate with the Social Care Centre. It was suggested that a meeting be organised between M.G. and the applicant at the Social Care Centre in the presence of the social workers.","36.On an unspecified date thereafter, the applicant, M.K. and the social workers agreed that the meetings between the applicant and M.G. would be held every Monday at 11a.m. M.K. was to take M.G. to the Social Care Centre. The first meeting was scheduled for 2June 2011.","37.On 31May 2011 the children\u2019s maternal grandmother Z.K.V. informed the Social Care Centre that M.G. was in Greece with his mother.","38.A further meeting was scheduled for 13June 2011.","39.On 13June 2011 the applicant met with M.G. at the Social Care Centre in the presence of the social workers. The meeting lasted one hour and passed pleasantly. M.G. talked and laughed with his father. Later that day M.K. informed the Social Care Centre that M.G. had been upset after the meeting so she had had to call an ambulance. This was confirmed by a doctor on duty at the time.","40.The next meeting, scheduled for 20June 2011, was cancelled because M.K. informed the Social Care Centre that she was unwell and had no one to take M.G. to the meeting. Several minutes later Z.K.V. called the Social Care Centre and was verbally aggressive towards a person dealing with the case. After being informed that the meeting had been cancelled, Z.K.V. and J.G. took M.G. to the centre and were verbally aggressive towards the social workers present. M.G. was frightened and confused.","41.The next meeting was scheduled for 27June 2011. There is no information in the case file as to whether or not it was held.","42.On 28June 2011 the Social Care Centre created a meeting schedule for July and August 2011. The applicant was to see M.G. every Monday between 11a.m. and 12 noon at the Social Care Centre. It would appear that those meetings were held without any problems.","43.On 15November 2011 the Sremska Mitrovica Basic Court terminated the enforcement proceedings initiated on 18January 2006 (seeparagraph15 above). The applicant was ordered to pay 28,125 dinars (approximately EUR236) to M.K. in legal costs.","44.On 24December 2015 the Stara Pazova Basic Court (which had been re-established and renamed in the 2014 judicial reform; see paragraph14 above), at M.K.\u2019s request, ordered enforcement of the decision of 15November 2011. In addition to the legal costs ordered by that decision, the applicant was ordered to pay enforcement costs of 10,225dinars (approximately EUR85), to be deducted from his disability pension. On 5April 2016 the appeals chamber of the Stara Pazova Basic Court upheld the decision of 24December 2015.","C.Criminal proceedings","45.On 12October 2007 the Stara Pazova Municipal Court found M.K. guilty of non-compliance with the interim contact order and ordered her to pay sixty day-fines of 500dinars (approximately EUR6.40) each. The court held that M.K. had obstructed the enforcement of the interim contact order of 27December 2005 by preventing M.G. from seeing his father without J.G. She had thus prevented the applicant from having contact with his son, except on one occasion when he had not had the right to visit him (seeparagraph18 above). The court considered that M.K. had not prevented J.G. from seeing the applicant and that J.G.\u2019s resistance was due to her personal conflict with him. The applicant was instructed to submit his claim for damages in civil proceedings.","46.On 29July 2008 the Sremska Mitrovica District Court upheld the judgment of 12October 2007 and it became final.","47.On 28March 2013 the Sremska Mitrovica Basic Court acquitted M.K. and Z.K.V. of charges of non-compliance with the interim contact order concerning the incident of 20June 2011 (see paragraph40 above)."],"95":["6.The applicant was born in Lithuania in 1980 and lives in Ljubljana, Slovenia.","7.The applicant left Lithuania for Slovenia on 2 March 2002.","8.On 13 March 2002 at 10.43 a.m. the applicant was arrested on suspicion of being involved in a robbery at the Radovljica branch of Gorenjska Bank.","9.The robbery had taken place at 9.30 a.m. on the same day. It had involved four men, while three others had assisted in its organisation. The four robbers wore masks. One of them carried a handgun and waited at the entrance, holding three clients at gunpoint. The others jumped over the counter and overpowered two bank employees while one of the robbers emptied the tills. After taking the money, the robbers fled by car towards the railway station. Informed of the bank robbery, the police searched the area. They discovered an abandoned car in nearby woods and soon after saw four men, including the applicant, running away. One of the men, later recognised as A.V., was seen carrying a bag, which he dropped when the police officers approached. The bag was found to contain some of the money stolen from the bank, a handgun and two masks. One of the masks had biological traces belonging to the applicant and another man (E.B.).","10.All four men were arrested and were later identified as the applicant, A.V., M.K. and E.B. They were all Lithuanian nationals.","11.At 2 p.m. on the same day, 13 March 2002, the applicant was taken into police custody. It appears from the decision authorising that measure that the applicant, at the time \u201can unidentified person\u201d, was immediately informed, in Russian, of the reasons for his arrest, and his right to remain silent, to request a lawyer and to have family members informed of his arrest. It can also be seen from this decision that a registered interpreter, A.G., interpreted for him from and into Russian and that the applicant did not request a lawyer. The decision was notified to the applicant at 5.20 p.m. He refused to sign a document acknowledging receipt of that decision, without providing any reasons for his refusal.","12.On the same day three other Lithuanian nationals, L.K., N.U. and G.V., were arrested on suspicion of aiding and abetting the robbery.","13.On 15 March 2002 the applicant and six other suspects were questioned by the investigating judge of Kranj District Court. The judge informed the applicant of the charges against him, his right not to incriminate himself and his right to remain silent, and also his right to be assisted by a lawyer of his own choosing. As the applicant did not appoint a lawyer, the court assigned D.V. as counsel. During the proceedings, interpreting into Russian and from Russian into Slovenian was provided by A.G. According to the record of the questioning, when asked whether he understood his rights and agreed to the appointment of counsel, the applicant started to cry. The excerpt containing the applicant\u2019s statement reads as follows:","\u201cI say that I have a young child. This child will have nothing to eat because our situation is very difficult. I have always worked; I have never done anything like this. I came to Slovenia because I wanted a job.","I want to see my child.","When asked when I came to Slovenia, I say that I do not remember.","When asked if he can describe the robbery, the accused is silent and does not answer.","When asked whether I am ready to give my personal data, I state that I was born in Lithuania and that my name is Danas.","I say that I will not provide my family name because I am ashamed.","When asked, why I am ashamed, I say that I am scared. I am scared that I will never see my child again. What have I done?","When asked what he has done to make him scared he will not to see his child again, the accused does not answer, instead he starts crying more.","When asked by the public prosecutor whether I would answer any more questions, I say no.","When asked whether I would answer questions from my counsel, I nod and say yes.","When asked how old I am and whether I have children, I answer that I am 21 and have one child, who means the whole world to me.","When asked what circumstances I live in, I say that it is very difficult in Lithuania. The circumstances are difficult. I have no job and no money.","When asked how long I have been in Slovenia, I say that I do not know exactly. I think that it has been about a week and a half.","When asked who he arrived in Slovenia with, the accused responds by crying.","There are no other questions for the accused.","When asked whether anyone should be informed about the detention, I say that I do not have any relatives, and I do not know where my wife and child are currently.","The defence is hereby concluded.\u201d","14.Another suspect, A.V., described the robbery and the events leading up to it when questioned by the investigating judge. He explained that he and the applicant had travelled to Slovenia together. They had met L.K., who had approached them in a fast-food restaurant when he had heard them speaking Russian. They had gone with him to Bled and met M.K., E.B., N.U. and G.V. a few days before the robbery. After running out of money, they had decided to rob the bank in question.","15.During the questioning of the applicant by the investigating judge, the applicant\u2019s counsel set out reasons for opposing the continuation of the applicant\u2019s detention. The applicant stated on record that he agreed with what had been said by his counsel.","16.Following the questioning, the investigating judge ordered the detention of all seven suspects. The decision was translated into Russian and notified to the applicant on 18 March 2002. His counsel appealed against that decision, and also against the subsequent prolongations of the applicant\u2019s detention, but was unsuccessful.","17.On the day of the above-mentioned questioning, 15 March 2002, the investigating judge gave permission for the interpreter A.G. to visit the applicant and some of his co-accused in order to assist them in their consultations with their counsel.","18.A decision opening a judicial investigation against the seven suspects was issued on 26 March 2002 but was quashed on appeal by a panel of three judges. The judges found that although the details of the allegations against the suspects had been provided in the detention orders, they should also have been fully included in the decision to open an investigation.","19.The questioning of witnesses took place on 2, 3 and 4 April 2002. The applicant and the other six suspects were informed in Russian about their right to attend the questioning. The applicant did not attend those sessions, but his counsel attended them all. The transcripts of the witness statements were translated into Russian and given to the applicant on 19April 2002.","20.On 8 April 2002 a new decision opening a judicial investigation against the seven accused was issued. It was later challenged unsuccessfully on appeal. The decision was translated into Russian and notified to the applicant on 10 April 2002. On the same day a remand hearing was held at which the applicant, with the assistance of the interpreter A.G., stated that he could not leave the country as he had no passport, that he wanted to wait until the proceedings were over and that he agreed with what had been said by his counsel at the hearing.","21.On 11 April 2002 A.G. informed the Kranj District Court that all the defendants had requested that the transcripts of the witness statements be translated into Russian.","22.On 12 April 2002 the investigating judge decided that the statements given by the suspects to the police should be excluded from the case file as the court could not rely on them. The decision was translated into Russian and notified to the applicant on 16 April 2002.","23.On 17 April 2002 an identification parade was organised and one witness identified the applicant as a person who had visited the bank two days before the robbery.","24.On 28 May 2002 the district prosecutor lodged an indictment, charging the applicant, A.V., M.K. and E.B. with robbery, one count of theft of a motor vehicle and two counts of attempted theft of a motor vehicle. L.K., N.U. and G.V. were charged with aiding and abetting the robbery. The indictment was translated into Russian and challenged unsuccessfully by the applicant\u2019s counsel.","25.On 10 and 11 July 2002 the Kranj District Court held a hearing at which two Russian interpreters were present. The record of the hearing shows that the charges were read out to the defendants, who were also notified of their right not to incriminate themselves and their right to remain silent. The transcript reads as follows:"," \u201cwe, the defendants, state that we understand the content of the charges.","...","we, the defendants, understand the notification of our rights.\u201d","26.At the hearing A.V. changed his statement and claimed that a man had offered to find work for him and the applicant. Once they had given him their passports, he had demanded that they take part in the robbery. The applicant had, according to A.V.\u2019s latest account, been too scared to participate, so they had left him in the woods to wait for them. The applicant gave a similar account of events, claiming that he had not been among those who had robbed the bank but had waited for their return in the woods. According to the record of the hearing, the applicant answered questions from the district prosecutor, the presiding judge, his own counsel and counsel for one of his co-defendants.","27.In addition to questioning the defendants, the court also examined a number of witnesses. It can be seen from the record of the hearing that the applicant had trouble with the interpreting of one of the witness statements and could only understand it when he read it. He put questions to the witnesses and commented on witness statements about the height of the robbers, and on police officers\u2019 statements concerning mobile telephones they had seized and the number of people who had fled the scene of the robbery. He also referred to the indictment and commented on allegations about the whereabouts of the stolen money.","28.On 12 July 2002 the applicant\u2019s partner was given permission to visit him in Ljubljana Prison.","29.On 16 July 2002 a hearing was held at which the defendants gave closing statements. The transcript includes the following record of the applicant\u2019s statement:","\u201cI agree with what has been said by my defence counsel. There is no evidence that I robbed the bank. The only evidence against me is the hair found in the cap, but I have already explained about the hair in the cap and why that cap happened to be on my head. Two men cannot be in a bank wearing the same cap. A person cannot be forced into something like that; nobody forced me. I was not in the bank.","...","I am sad that you consider me to be an offender; you can only sentence me for what I actually did and not for what I did not do. I ask that account be taken of my family situation and that I be sentenced accordingly, but not to imprisonment.\u201d","30.On 16 July 2002 a five-member bench of the Kranj District Court convicted the applicant, A.V., M.K. and E.B. of robbery and acquisition of unlawfully gained property (a stolen car). The applicant and M.K. were sentenced to eight years and four months in prison, E.B. received a sentence of eight years and seven months, while A.V. was sentenced to five years and four months in prison. L.K., N.U. and G.V. were found guilty of aiding and abetting the robbery and sentenced to five years\u2019 imprisonment.","31.The judgment contains about twenty pages of reasoning in which the court also responded to arguments relating to the use of Slovenian or Croatian during the robbery. The court noted that not many words had been spoken during the robbery, that all four defendants charged with robbery spoke Russian and were for that reason assisted by Russian interpreters, that they also knew some words in Slovenian as demonstrated during the hearing and that they could have intentionally used words resembling Slovenian.","32.On the same day, the applicant\u2019s detention was extended. The written decision with a Russian translation were notified to the applicant on the following day.","33.On 2 August 2002 the judgment with a translation into Russian were also notified to the applicant.","34.On 6 August 2002 the applicant\u2019s counsel appealed against the District Court\u2019s judgment. He complained about alleged shortcomings in the police investigation, the assessment of evidence and his client\u2019s sentence, but did not raise any complaint regarding the applicant\u2019s understanding of the Russian interpreting provided to him.","35.On the same day the applicant also lodged an appeal, which was composed of five pages of argument written by hand in Slovenian with the assistance of fellow inmates. The applicant complained about the first-instance court\u2019s assessment of the evidence and about his sentence. He maintained that he had known about the robbery but had not taken part in it.","36.On 14 November 2002 the Ljubljana Higher Court dismissed the applicant\u2019s appeal. It found that A.V. had given a detailed and incriminating description, while having legal assistance, that the applicant had been assisted by counsel who had been appointed for him and by an interpreter at his first appearance before the investigating judge, and that there was no indication that the applicant had not been informed when arrested of the reasons for his arrest in a language he had understood. The court was of the view that if the applicant had not understood the reasons for his arrest he would have mentioned it during his questioning by the investigating judge. The applicant was issued with a Russian translation of the judgment, by which his conviction acquired the force of res judicata.","37.On 23 February 2003 the applicant sent an application entitled \u201can appeal to the Supreme Court\u201d to the Kranj District Court. The application was written in Lithuanian, with the exception of an introductory explanation in Slovenian, in which the applicant informed the court that he spoke neither Russian nor Slovenian, adding that he understood a little Russian but could not write in it. In the rest of the document the applicant complained about the assessment of the evidence by the lower courts and alleged that his right to use his own language in the criminal trial had been violated. He also alleged that during his first questioning he had not been represented by counsel or provided with an interpreter. Thus, he had not understood the reasons for his arrest. He also submitted that he had stated at the hearing that he did not understand Russian very well. Despite those issues, the Kranj District Court had not provided him with a Lithuanian interpreter.","38.On 24 March 2003 the Kranj District Court instructed the applicant to submit his appeal, which it treated as an application for the protection of legality (an extraordinary remedy by which to challenge the legality of final decisions), in Russian, finding that he had used that language throughout the criminal proceedings and in communication with his counsel. It appears from the Constitutional Court\u2019s decision of 24 March 2005 (see paragraph 41 below) that the Kranj District Court had ordered that the appeal be drafted in Russian after ascertaining that there were no Lithuanian interpreters registered in Slovenia and that translation from that language would therefore have required the assistance of the nearest Lithuanian Embassy. The letter instructing the applicant to submit his application in Russian, and a Russian translation of that letter, were notified to the applicant on 4April 2003. As the applicant did not reply, on 29 April 2003 the District Court rejected his application as incomprehensible. The decision and a Russian translation were notified to the applicant on 21 May 2003.","39.On 20 August 2004 the applicant lodged a constitutional complaint against that decision, alleging that the Kranj District Court had violated his defence rights and his right to use his own language and script. He explained that he could not speak or understand Russian very well, and in particular was not able to read decisions and other documents in Russian owing to the different characters, and that he had thus been prevented from effectively defending himself. His constitutional complaint and additional submissions were handwritten in Slovenian. In the proceedings before the Constitutional Court, the Kranj District Court replied to the applicant\u2019s allegations, submitting that he had at no time stated that he had trouble understanding Russian.","40.On 30 November 2004 the applicant sent a letter to the Ministry of Justice, written in Slovenian, asking for an explanation as to why he had not had a Lithuanian interpreter at his trial. The letter was forwarded to the Kranj District Court. It replied on 28 December 2004, explaining that the applicant had used Russian to communicate with the court and with his counsel at all stages of the first-instance proceedings.","41.On 24March 2005 the Constitutional Court delivered its decision. It observed that the applicant\u2019s situation was an exceptional one, in that he was not required to properly exhaust remedies in respect of the Kranj District Court\u2019s decision. In its view, the applicant, who was detained at the time, could not have been expected to challenge the impugned decision by means of a standard appeal as he had stated that he could not understand the language in which the decision had been written. The Constitutional Court went on to examine the complaint on the merits, finding in favour of the applicant. It noted that the law afforded special protection to a defendant\u2019s right to use his or her own language and script after detention. The person\u2019s own language would in principle be his or her mother tongue but, if the person had a command of another language, the use of the latter could suffice for oral communication in the proceedings. However, the Constitutional Court rejected the District Court\u2019s view that a defendant who was in custody and who had used a certain language in oral proceedings should also submit written submissions in that language, finding that written communication required a higher level of language proficiency. The Constitutional Court noted that the applicant had been assisted by a Russian interpreter in the first-instance proceedings, which had mainly involved oral communication. After an appeal, proceedings were typically in writing and the accused no longer benefited from the assistance of court-appointed counsel. The Constitutional Court therefore found that the applicant, who had explained in his submissions to the Supreme Court that he could not write in Russian, should be allowed to submit them in his own language. It therefore concluded that the court below had violated the applicant\u2019s right to use his own language in the proceedings, as explicitly provided for by section 8 of the Criminal Procedure Act and as guaranteed by Article 62 of the Constitution. It annulled the Kranj District Court\u2019s decision of 29 April 2003 (see paragraph 38 above) and remitted the applicant\u2019s application for the protection of legality for fresh consideration.","42.In the remitted proceedings, the Kranj District Court obtained a Slovenian translation of the applicant\u2019s application for the protection of legality and referred it to the Supreme Court.","43.On 26 January 2006 the Supreme Court dismissed the applicant\u2019s application for the protection of legality as unfounded. The Supreme Court established on the basis of the case file that immediately after placing the applicant in police custody, the police had informed him, with the assistance of the Russian interpreter, of the reasons for his arrest and his right to a lawyer. When questioned by the investigating judge, the applicant had also been assisted by the Russian interpreter and his court-appointed counsel. The Supreme Court found that there was no indication in the file that the applicant had been informed of his right to use his own language in the proceedings, either by the investigating judge or by the Kranj District Court. It also found no indication that the applicant had given any statement concerning that right. However, the lack of such notification, did not, in the Supreme Court\u2019s view, undermine the legality of the final judgment, because the applicant had been assisted by a Russian interpreter and by counsel. The record of the hearing had contained no indication that he did not understand Russian. Moreover, the court noted that neither the applicant nor his counsel had raised any issue of a lack of understanding of Russian. The applicant was issued with an original copy of the Supreme Court\u2019s judgment and a Lithuanian translation.","44.On 10 June 2006 the applicant lodged a constitutional complaint against the Supreme Court\u2019s judgment, complaining that, while he had a rough understanding of Russian, he could not defend himself orally in that language, let alone in writing. In particular, he alleged that he had not been afforded an opportunity to defend himself in a language that would allow him to clarify the facts of the case and to respond effectively to the charges. He alleged that he had drawn the court\u2019s attention to that fact but that his remark had not been recorded. In addition, the applicant complained that certain documents submitted in evidence had been in Slovenian and had therefore been incomprehensible to him, thus hindering his defence.","45.On 1 September 2007 the applicant was released on parole.","46.On 3 July 2008 the Constitutional Court dismissed (zavrne) the applicant\u2019s constitutional complaint. It observed, inter alia, as follows:","\u201cAll the complaints relate to the proceedings before the first-instance court. From the questioning by the investigating judge until the end of the trial, including during the appeal proceedings, the applicant was represented by counsel with whom he succeeded in communicating in Russian (that fact was not disputed by the applicant in his constitutional complaint). In his appeal against the first-instance court\u2019s judgment, the applicant did not mention the issues raised in the constitutional complaint but instead complained about police procedure, which is not a matter complained of in the constitutional proceedings. Only in his request for the protection of legality, lodged in his own language, and in his constitutional complaint, did the applicant complain of a breach of his right under Article 62 of the Constitution owing to the conduct of the District Court, which had ignored his remarks about his trouble understanding Russian ...","Having regard to the foregoing and to the content of the constitutional complaint, the Constitutional Court examined whether the Supreme Court\u2019s view ... violated the applicant\u2019s right to use his own language provided for in Article 62 of the Constitution and whether there had been a breach of his defence rights under the first line of Article 29 of the Constitution.","...","In accordance with section 8 of the Criminal Procedure Act, a court should inform a suspect or accused of the right to use his own language. The notification and the statement of the suspect or accused should be recorded in the hearing transcript in its entirety. The omission of such a notification or a lack of record of such a notification or statement can give rise to a material breach of the rules of criminal procedure under paragraph 2 of section 371 of the Criminal Procedure Act (that is, if such a violation affected his ability to defend himself). However, if the court acts contrary to an explicit request of a suspect or accused to use his own language and to follow the hearing in that language, the court commits a material breach of the rules of criminal procedure in an absolute sense under paragraph 1 of section 371 of the Criminal Procedure Act.","In the reasoning of the judgment [the Supreme Court] noted that there was no indication in the record of the hearing that the applicant had mentioned that he had not understood Russian or that he or his counsel had requested the use of the applicant\u2019s native language at the hearing. Nor had the latter issue been raised in the application for the protection of legality. ... The allegation that the court had failed to include the applicant\u2019s statement in the record of the hearing was made for the first time in the constitutional complaint. The Supreme Court convincingly established circumstances that show that the applicant understood Russian well enough to receive a fair hearing using that language ... When considering the right to a fair trial it is important to note (and this also the Constitutional Court\u2019s view) that in his application for the protection of legality the applicant did not raise a complaint that he had not been informed of his right to use his native language. Nor did he complain of that in his constitutional complaint.","... The impugned judgments therefore do not violate the right of the applicant guaranteed in Article 62 of the Constitution ... Having regard to the above findings and the fact that throughout the proceedings the applicant was assisted by counsel with whom he succeeded in communicating, his complaint that his defence rights guaranteed by Article 29 [of the Constitution] had been violated must likewise be dismissed.","The complaint that some of the evidence in the proceedings was in Slovenian, thus preventing him from familiarising himself with it and defending himself, was not pursued in the proceedings before the lower courts. He has therefore failed to exhaust remedies in that regard ...\u201d","47.The fees declared at the end of the trial by the interpreter and the applicant\u2019s counsel, and paid for by the State, show that various services were provided to the applicant. Apart from interpreting during the investigation and court hearings, and the written translation of documents, A.G. took part in certain meetings between the applicant and his counsel. The lawyer visited the applicant in the remand prison for consultation purposes on 8 April (forty-five minutes), 2 August (thirty minutes) and 13September 2002 (twenty minutes), assisted by A.G., as well as on 9 July 2002 (twenty-five minutes), though it is not clear whether on the latter occasion A.G. was present. The lawyer also assisted the applicant during his court appearances. He also lodged applications for remedies on his client\u2019s behalf in the proceedings at first and second instance.","A.Domestic law","1.The Constitution of the Republic of Slovenia","48.The relevant provisions of the Constitution of the Republic of Slovenia read as follows:","Article 29","(Legal Safeguards in Criminal Proceedings)","\u201cAnyone charged with a criminal offence must, in addition to absolute equality, be guaranteed the following rights:","the right to have adequate time and facilities to prepare his defence;","the right to be present at his trial and to conduct his own defence or to be defended by a legal representative;","the right to present all the evidence that is to his benefit;","the right not to incriminate himself or his relatives or those close to him, or to admit his guilt.\u201d","Article 62","(Right to Use One\u2019s Own Language and Script)","\u201cEveryone has the right to use his own language and script as provided by law in the exercise of his rights and duties and in procedures before State and other authorities performing a public function.\u201d","2.Criminal Procedure Act","(a)Use of languages in criminal proceedings","49.The relevant provisions of the Criminal Procedure Act (Official Gazette no. 63\/94 with the relevant amendments) governing the use of languages in criminal proceedings read as follows:","Section 4","\u201c(1) Any arrested person shall be advised immediately, in his native language or in a language he understands, of the reasons for his arrest. An arrested person shall immediately be instructed that he is not bound to make any statements, that he is entitled to the legal assistance of counsel of his own choosing and that the competent body is bound to inform his immediate family of his arrest at his request.","...","Section 7","(1) Charges, appeals and other submissions shall be filed with the court in the Slovenian language.","...","(3) A foreigner who has been deprived of his freedom shall have the right to file submissions with the court in his own language; in other cases foreign subjects shall be allowed to file submissions in their own language solely on the condition of reciprocity.\u201d","Section 8","\u201c(1) Parties, witnesses and other participants in the proceedings shall have the right to use their own languages in investigative and other judicial actions and at the main hearing. If a judicial action or the main hearing is not conducted in the language of those persons, an oral translation of their statements and of the statements of others, and a translation of documents and other written evidence, must be provided.","(2) Persons referred to in the preceding paragraph shall be informed of their right to have oral statements and written documents and evidence translated for them; they may waive their rights to translation if they know the language in which the proceedings are being conducted. The fact that they have been informed of their right, as well as their statements in that regard, should be placed on record.","(3) Translations shall be done by a court interpreter.\u201d","(b)Grounds of appeal","50.The relevant provision of the Criminal Procedure Act concerning grounds of appeal reads as follows:","Section 371","\u201c(1) A material breach of the provisions of criminal procedure shall be deemed to exist:","...","3) ... where the defendant, counsel, the injured party acting as prosecutor or the private prosecutor was, notwithstanding his request, deprived of his right to use his own language during investigative or other court actions or at the main hearing and his right to follow the proceedings in that language (section 8) ...;","...","(2) A material breach of the provisions of criminal procedure shall also be deemed to exist if in preparation for a hearing or in the course of a hearing or in giving judgment the court omitted to apply a provision of this Act or applied it incorrectly, or if in the course of the hearing the court violated the rights of the defence, such that the act or omission influenced or might have influenced the legality and regularity of the judgment.\u201d","B.European Union instruments","51.The Charter of Fundamental Rights of the European Union (\u201cthe Charter\u201d) enshrines the right to a fair trial (Article 47) and respect for the rights of the defence (Article 48(2)).","52.On 30 November 2009 the Council of the European Union adopted a Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings (\u201cthe Roadmap\u201d). The Roadmap gave rise to Directive 2010\/64\/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (\u201cDirective 2010\/64\/EU\u201d). Directive 2010\/64\/EU lays down common minimum rules to be applied within the European Union for the purposes of interpretation and translation in criminal proceedings and in proceedings for the execution of the European arrest warrant. It came into force on 15November 2010.","53.The following recitals of Directive 2010\/64\/EU are relevant:","\u201c...","(7) Strengthening mutual trust requires a more consistent implementation of the rights and guarantees set out in Article 6 of the ECHR. It also requires, by means of this Directive and other measures, further development within the Union of the minimum standards set out in the ECHR and the Charter.","...","(9) Common minimum rules should lead to increased confidence in the criminal justice systems of all Member States, which, in turn, should lead to more efficient judicial cooperation in a climate of mutual trust. Such common minimum rules should be established in the fields of interpretation and translation in criminal proceedings.","...","(14) The right to interpretation and translation for those who do not speak or understand the language of the proceedings is enshrined in Article 6 of the ECHR, as interpreted in the case-law of the European Court of Human Rights. This Directive facilitates the application of that right in practice. To that end, the aim of this Directive is to ensure the right of suspected or accused persons to interpretation and translation in criminal proceedings with a view to ensuring their right to a fair trial.","...","(17) This Directive should ensure that there is free and adequate linguistic assistance, allowing suspected or accused persons who do not speak or understand the language of the criminal proceedings fully to exercise their right of defence and safeguarding the fairness of the proceedings.","...","(19) Communication between suspected or accused persons and their legal counsel should be interpreted in accordance with this Directive. Suspected or accused persons should be able, inter alia, to explain their version of the events to their legal counsel, point out any statements with which they disagree and make their legal counsel aware of any facts that should be put forward in their defence.","...","(21) Member States should ensure that there is a procedure or mechanism in place to ascertain whether suspected or accused persons speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter. Such procedure or mechanism implies that competent authorities verify in any appropriate manner, including by consulting the suspected or accused persons concerned, whether they speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter.","(22) Interpretation and translation under this Directive should be provided in the native language of the suspected or accused persons or in any other language that they speak or understand in order to allow them fully to exercise their right of defence, and in order to safeguard the fairness of the proceedings.","...","(24) Member States should ensure that control can be exercised over the adequacy of the interpretation and translation provided when the competent authorities have been put on notice in a given case.","...","(30) Safeguarding the fairness of the proceedings requires that essential documents, or at least the relevant passages of such documents, be translated for the benefit of suspected or accused persons in accordance with this Directive. Certain documents should always be considered essential for that purpose and should therefore be translated, such as any decision depriving a person of his liberty, any charge or indictment, and any judgment. It is for the competent authorities of the Member States to decide, on their own motion or upon a request of suspected or accused persons or of their legal counsel, which other documents are essential to safeguard the fairness of the proceedings and should therefore be translated as well.","...","(32) This Directive should set minimum rules. Member States should be able to extend the rights set out in this Directive in order to provide a higher level of protection also in situations not explicitly dealt with in this Directive. The level of protection should never fall below the standards provided by the ECHR or the Charter as interpreted in the case-law of the European Court of Human Rights or the Court of Justice of the European Union.","(33) The provisions of this Directive that correspond to rights guaranteed by the ECHR or the Charter should be interpreted and implemented consistently with those rights, as interpreted in the relevant case-law of the European Court of Human Rights and the Court of Justice of the European Union.\u201d","54.Article 2 of Directive 2010\/64\/EU reads, in its relevant part, as follows:","Right to interpretation","\u201c1. Member States shall ensure that suspected or accused persons who do not speak or understand the language of the criminal proceedings concerned are provided, without delay, with interpretation during criminal proceedings before investigative and judicial authorities, including during police questioning, all court hearings and any necessary interim hearings.","2. Member States shall ensure that, where necessary for the purpose of safeguarding the fairness of the proceedings, interpretation is available for communication between suspected or accused persons and their legal counsel in direct connection with any questioning or hearing during the proceedings or with the lodging of an appeal or other procedural applications.","...","4. Member States shall ensure that a procedure or mechanism is in place to ascertain whether suspected or accused persons speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter.","5. Member States shall ensure that, in accordance with procedures in national law, suspected or accused persons have the right to challenge a decision finding that there is no need for interpretation and, when interpretation has been provided, the possibility to complain that the quality of the interpretation is not sufficient to safeguard the fairness of the proceedings.","...","8. Interpretation provided under this Article shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence.\u201d","55.Article 3 of Directive 2010\/64\/EU reads, in its relevant part, as follows:","Right to translation of essential documents","\u201c1. Member States shall ensure that suspected or accused persons who do not understand the language of the criminal proceedings concerned are, within a reasonable period of time, provided with a written translation of all documents which are essential to ensure that they are able to exercise their right of defence and to safeguard the fairness of the proceedings.","2. Essential documents shall include any decision depriving a person of his liberty, any charge or indictment, and any judgment.","...","5. Member States shall ensure that, in accordance with procedures in national law, suspected or accused persons have the right to challenge a decision finding that there is no need for the translation of documents or passages thereof and, when a translation has been provided, the possibility to complain that the quality of the translation is not sufficient to safeguard the fairness of the proceedings.","...","7. As an exception to the general rules established in paragraphs 1, 2, 3 and 6, an oral translation or oral summary of essential documents may be provided instead of a written translation on condition that such oral translation or oral summary does not prejudice the fairness of the proceedings.","9. Translation provided under this Article shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence.\u201d","56.Article 5 \u00a7 1 of Directive 2010\/64\/EU deals with the quality of interpretation and translation, providing as follows:","\u201c1. Member States shall take concrete measures to ensure that the interpretation and translation provided meets the quality required under Article 2(8) and Article3(9).\u201d","57.Furthermore, Article 7 of Directive 2010\/64\/EU reads:","Record-keeping","\u201cMember States shall ensure that when a suspected or accused person has been subject to questioning or hearings by an investigative or judicial authority with the assistance of an interpreter pursuant to Article 2, when an oral translation or oral summary of essential documents has been provided in the presence of such an authority pursuant to Article 3(7), or when a person has waived the right to translation pursuant to Article 3(8), it will be noted that these events have occurred, using the recording procedure in accordance with the law of the Member State concerned.\u201d","58.On 22 May 2012 the European Parliament and the Council of the European Union adopted another directive relating to the measures set out in the Roadmap, namely Directive 2012\/13\/EU on the right to information in criminal proceedings (\u201cDirective 2012\/13\/EU\u201d). It entered into force on 21 June 2012.","59.The following recitals of Directive 2012\/13\/EU are relevant:","\u201c(25) Member States should ensure that, when providing information in accordance with this Directive, suspects or accused persons are provided, where necessary, with translations or interpretation into a language that they understand, in accordance with the standards set out in Directive 2010\/64\/EU.","...","(35) Where information is provided in accordance with this Directive, the competent authorities should take note of this in accordance with existing recording procedures under national law and should not be subject to any additional obligation to introduce new mechanisms or to any additional administrative burden.","(36) Suspects or accused persons or their lawyers should have the right to challenge, in accordance with national law, the possible failure or refusal of the competent authorities to provide information or to disclose certain materials of the case in accordance with this Directive. That right does not entail the obligation for Member States to provide for a specific appeal procedure, a separate mechanism, or a complaint procedure in which such failure or refusal may be challenged.","...","(38) Member States should undertake all the necessary action to comply with this Directive. A practical and effective implementation of some of the provisions such as the obligation to provide suspects or accused persons with information about their rights in simple and accessible language could be achieved by different means including non-legislative measures such as appropriate training for the competent authorities or by a Letter of Rights drafted in simple and non-technical language so as to be easily understood by a lay person without any knowledge of criminal procedural law.\u201d","60.The relevant parts of Articles 3, 4 and 8 of Directive 2012\/13\/EU provide as follows:","Article 3","Right to information about rights","\u201c1. Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively:","(a) the right of access to a lawyer;","(b) any entitlement to free legal advice and the conditions for obtaining such advice;","(c) the right to be informed of the accusation, in accordance with Article 6;","(d) the right to interpretation and translation;","(e) the right to remain silent.","2. Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons.\u201d","Article 4","Letter of Rights on arrest","\u201c1. Member States shall ensure that suspects or accused persons who are arrested or detained are provided promptly with a written Letter of Rights. They shall be given an opportunity to read the Letter of Rights and shall be allowed to keep it in their possession throughout the time that they are deprived of liberty.","...","5. Member States shall ensure that suspects or accused persons receive the Letter of Rights written in a language that they understand. Where a Letter of Rights is not available in the appropriate language, suspects or accused persons shall be informed of their rights orally in a language that they understand. A Letter of Rights in a language that they understand shall then be given to them without undue delay.\u201d","Article 8","Verification and remedies","\u201c1. Member States shall ensure that when information is provided to suspects or accused persons in accordance with Articles 3 to 6 this is noted using the recording procedure specified in the law of the Member State concerned.","2. Member States shall ensure that suspects or accused persons or their lawyers have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in accordance with this Directive.\u201d","61.Both of the aforementioned directives were incorporated into the Slovenian legal system by means of an amendment to the Criminal Procedure Act (Official Gazette, no.87\/2014), which was passed on 21November 2014 and became applicable as of 20 March 2015."],"96":["5.The applicant was born in 1985 and lives in Steiermark in Austria.","6.At the relevant period the applicant lived in Syktyvkar in the Komi Republic of Russia and had a blog hosted by livejournal.com, a popular blog platform.","A.Background to the case","7.In February 2007 an election campaign for election of members of the regional legislature was under way in the Komi Republic.","8.On 14 February 2007 the police arrived with an \u201cunplanned inspection\u201d (\u0432\u043d\u0435\u043f\u043b\u0430\u043d\u043e\u0432\u0430\u044f \u043f\u0440\u043e\u0432\u0435\u0440\u043a\u0430) at the office of a local newspaper in Syktyvkar. The police searched the office, stated that the software installed on the computers was counterfeit, and seized the hard disks.","9.Later that day, a regional non-governmental organisation \u2013 the Memorial Human Rights Commission in Komi (\u201cMemorial\u201d) \u2013 issued a press release which linked the search to the election campaign. The press release mentioned, in particular, that the newspaper in question had published a large amount of material in the context of the election campaign, and that it was in opposition to the current authorities of the Komi Republic, as it actively supported a well-known local politician who had a long-standing conflict with those authorities. The press release also stated that the police officers who had carried out the search had not clearly explained what the legal basis for their actions had been, and that one of them had acted rudely and had thrown out some of the journalist\u2019s belongings to get access to the latter\u2019s computer during that search.","10.On the same day, the President of Memorial, Mr I.S., published the text of that press release on his blog at livejournal.com. Three comments were left under that publication on that day. One of the comments was left by a certain Mr T. and read as follows:","\u201cThe police, once again, confirm their reputation as \u2018the regime\u2019s faithful dogs\u2019. Unfortunately, police officers still have the mentality of a repressive hard stick in the hands of those who have the power. It feels like they are an instrument of punishment of the recalcitrant rather than being a service to society. What can be done to carry out a rotation of meanings (\u0440\u043e\u0442\u0430\u0446\u0438\u044f \u0441\u043c\u044b\u0441\u043b\u043e\u0432) in the law-enforcement agencies?\u201d","11.On the same date Mr B.S., a journalist, blogger and the applicant\u2019s acquaintance, made a short post on his blog at livejournal.com about the search, stating that the police \u201c[were] seconded for a fight with the political opposition\u201d. The post contained a hyperlink to the press release published on Mr I.S.\u2019s blog.","B.The applicant\u2019s comment","12.On 15 February 2007 the applicant, who was a subscriber to MrB.S.\u2019s blog, read his above-mentioned post and then accessed Mr I.S.\u2019s blog using the hyperlink. The applicant read the text of the press release and the comments, including the one left by Mr T. In the applicant\u2019s words, this latter comment made a particularly strong impression on him.","13.He then returned to Mr B.S.\u2019s blog and posted a comment which was entitled \u201cI hate the cops, for fuck\u2019s sake\u201d (\u201c\u041d\u0435\u043d\u0430\u0432\u0438\u0436\u0443 \u043c\u0435\u043d\u0442\u043e\u0432, \u0441\u0446\u0443\u043a\u043e\u043d\u0430\u0445\u201d) and read as follows:","\u201cI disagree with the idea that \u2018police officers still have the mentality of a repressive hard stick in the hands of those who have the power\u2019. Firstly, they are not police officers but cops; secondly, their mentality is incurable. A pig always remains a pig. Who becomes a cop? Only lowbrows and hoodlums \u2013 the dumbest and least educated representatives of the animal world. It would be great if in the centre of every Russian city, on the main square ... there was an oven, like at Auschwitz, in which ceremonially every day, and better yet, twice a day (say, at noon and midnight) infidel cops would be burnt. The people would be burning them. This would be the first step to cleansing society of this cop-hoodlum filth.\u201d","C.Criminal proceedings against the applicant","1.Preliminary investigation","14.On 14 March 2007 criminal proceedings were brought against the applicant under Article 282\u00a71 of the Russian Criminal Code in connection with his comment on the Internet.","15.On 16 March 2007 the police searched the applicant\u2019s home in the context of those proceedings. On the same day the applicant, who had found out the reasons for the criminal case against him, removed his comment.","16.A report of 30 April 2007, reflecting the results of an examination carried out during the preliminary investigation, provided a detailed analysis of the language of the applicant\u2019s comment. It stated, in particular, that in the text its author had expressed a distinctly negative opinion about all police officers, their personal and professional qualities, in a gross, indecent, aggressive and insulting form, widely using slang and, indirectly, obscene vocabulary typical of young users of the Internet.","2.Proceedings before the courts","(a)Proceedings before the first-instance court","17.In the proceedings before the Syktyvkar Town Court of the Komi Republic (\u201cthe Town Court\u201d), the applicant pleaded not guilty. He conceded that he had been the author of the impugned statement, and argued that it had represented his emotional and spontaneous reaction to the press release of Memorial regarding the police search at the office of an opposition newspaper and to Mr B.S.\u2019s relevant post and Mr T.\u2019s comment. In the applicant\u2019s words, for him there was a distinction between a \u201cpolice officer\u201d, that is to say an honest and respectable law-enforcement officer, and a \u201ccop\u201d, that is to say someone who acted unlawfully and abusively when performing professional duties. In his comment the applicant had expressed his disagreement with Mr T., who, in the applicant\u2019s view, had confused those two notions. The applicant also insisted that his comments had been exclusively addressed to Mr B.S. with whom he had shared his thoughts regarding the police operation of 14 February 2007, and that he had had no intention of making it public, let alone calling for any actions against the police. The applicant further conceded that his comment had been quite provocative, but insisted that he had used exaggeration, in particular, referred to \u201can oven, like at Auschwitz\u201d, only to express an idea that \u201cinfidel\u201d police officers should be severely punished. Lastly, he apologised to former prisoners of Nazi concentration camps and to \u201chonest\u201d police officers, who may have felt offended by his comment.","18.The Town Court called and examined a large number of witnesses. In particular, three police officers, who had conducted a pre-investigation inquiry in connection with the applicant\u2019s comment on the Internet, stated that they had not seen it as directed against only \u201cinfidel\u201d police officers; in their view, it had related to all police officers, had ascribed negative characteristics to them and had proposed to incinerate them in public. MrB.S. stated that, in his view, the applicant\u2019s comment had drawn a distinction between honest police officers and \u201cinfidel cops\u201d and had only related to the latter category. Some of the witnesses stated that they had seen the applicant\u2019s comment in Mr B.S.\u2019s blog, whereas others stated that they had only become aware of the comment or read it after the criminal proceedings had been instituted against the applicant and his case had attracted the attention of the mass media. Some of the witnesses stated that they considered the applicant\u2019s comment and the expressions used therein to be too harsh, and the word \u201clowbrows\u201d to be immoral or unethical. Mr I.S. pointed out that \u201cthe bloggers\u2019 community\u201d, including his own acquaintances, had been indignant at the applicant\u2019s comment which they had considered to be too strongly-worded; however, in that witness\u2019s view, the applicant had merely expressed his opinion and had started a public discussion on an important issue. Another witness stated that he had not taken the applicant\u2019s comment seriously, let alone seen it as calling for any violent action.","19.At the request of the parties, the first-instance court ordered that a comprehensive socio-humanities forensic expert examination of the impugned text be carried out by a commission of experts.","20.The expert report of 19 June 2008, reflecting the results of that examination, stated, in particular, that the applicant had targeted police officers as a \u201csocial group\u201d and that his comment had \u201caimed at inciting hatred and enmity\u201d towards this group and had \u201ccalled for their physical extermination\u201d.","(b)Judgment of 7 July 2008","21.On 7 July 2008 the Town Court found the applicant guilty under Article 282\u00a71 of the Russian Criminal Code for \u201chaving publicly committed actions aimed at inciting hatred and enmity and humiliating the dignity of a group of persons on the grounds of their membership of a social group\u201d. The court based its findings on, among other evidence, the expert reports of 30 April 2007 and 19 June 2008, stating that it had no reasons to doubt the experts\u2019 conclusions as those were consistent with the circumstances of the case as established by the court.","22.The court stated, in particular, that the applicant, acting out of his personal aversion towards police officers, \u201c[had] decided to influence the public with the aims of inciting them to commit violent actions against police officers, of instilling the public with the resolve and aspiration to commit unlawful actions in respect of [the police officers]\u201d. According to the court, \u201cthe police officers of Russia [were] a large social group \u2013 people united by their common activity in protecting the life, health, rights and liberties of people, property, public and State interests from crimes and offences\u201d. It also noted that the applicant \u201c[had been] aware of the illegal nature of his actions when he [had] published his text aimed at inciting enmity and hatred, imbued with hostility, hatred and humiliation of the dignity of the police officers of Russia... on a more popular Internet blog than his own ... and thus [he had] made it accessible to a larger readership\u201d and that \u201c... access to the text [had been] unrestricted and it [had] remained accessible ... for approximately one month ...\u201d","23.The Town Court went on to note that the impugned text had been generalised and impersonal and had drawn no distinctions on any grounds; the word \u201ccop\u201d had been used with a negative and insulting meaning. According to the Town Court, the applicant had \u201cargued that the police officers\u2019 [had been] inferior on account of their professional grouping\u201d, had humiliated their dignity by comparing them with \u201cpigs\u201d and ascribing to them the humiliating characteristics of \u201clowbrows and hoodlums \u2013 the dumbest and most uneducated representatives of the animal world ...\u201d and \u201ccop-hoodlum filth\u201d.","24.In the court\u2019s view, the applicant \u201cnegatively [influenced] public opinion with the aim of inciting social hatred and enmity, escalating social conflict and controversy in society and awakening base instincts in people\u201d and \u201c[set] the community against police officers in calling for [their] physical extermination by ordinary people\u201d. According to the trial court, \u201cthe text [did] not allow for any ambiguous interpretation of [its] content and meaning, because it [was] understandable to any average native speaker of Russian who [had] basic oral and written language skills\u201d.","25.The Town Court also found that the impugned text could not be viewed as a criticism, as it had not been intended as a discussion of any shortcomings or as an analysis or assessment of something specific.","26.Lastly, the court considered that \u201cthe crime committed by [the applicant was] particularly blatant and dangerous for national security [as] it [ran] against the fundamentals of the constitutional system and State security\u201d, with the result that a sentence involving the deprivation of liberty should be imposed on the applicant. Given the applicant\u2019s positive references at the place of residence and work and the absence of a criminal record, the court considered it appropriate to give the applicant a suspended sentence of one year\u2019s imprisonment.","(c)Appeal proceedings","27.The applicant appealed against the conviction. He pleaded, in particular, that the trial court had deliberately extended the scope of the term \u201csocial group\u201d to encompass police officers and that it had not been shown that his statement had, indeed, posed a danger to society.","28.On 19 August 2008 the Supreme Court of the Komi Republic rejected the applicant\u2019s appeal and endorsed the Town Court\u2019s conclusions. It also found that the experts had acted within the scope of their competence, and that the applicant\u2019s allegation of a loose interpretation of the term \u201csocial group\u201d had not affected the objectivity of the first-instance court\u2019s findings. The appellate court added that the applicant\u2019s statement had not been concerned with any criticism of the law-enforcement bodies but had publicly called for violence against police officers.","A.United Nations","1.Human Rights Council","34.The relevant parts of the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, submitted in accordance with Human Rights Council resolution 16\/4, A\/67\/357, of 7 September 2012 read as follows:","\u201c46.While some of the above concepts may overlap, the Special Rapporteur considers the following elements to be essential when determining whether an expression constitutes incitement to hatred: real and imminent danger of violence resulting from the expression; intent of the speaker to incite discrimination, hostility or violence; and careful consideration by the judiciary of the context in which hatred was expressed, given that international law prohibits some forms of speech for their consequences, and not for their content as such, because what is deeply offensive in one community may not be so in another. Accordingly, any contextual assessment must include consideration of various factors, including the existence of patterns of tension between religious or racial communities, discrimination against the targeted group, the tone and content of the speech, the person inciting hatred and the means of disseminating the expression of hate. For example, a statement released by an individual to a small and restricted group of Facebook users does not carry the same weight as a statement published on a mainstream website. Similarly, artistic expression should be considered with reference to its artistic value and context, given that art may be used to provoke strong feelings without the intention of inciting violence, discrimination or hostility.","47.Moreover, while States are required to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence under article 20 (2) of the Covenant, there is no requirement to criminalize such expression. The Special Rapporteur underscores that only serious and extreme instances of incitement to hatred, which would cross the seven-part threshold, should be criminalized.\u201d","2.Committee on the Elimination of Racial Discrimination","35.The relevant part of General Recommendation No. 35, Combating Racist Hate Speech, of 12 September 2011 reads as follows:","\u201c20.The Committee observes with concern that broad or vague restrictions on freedom of speech have been used to the detriment of groups protected by the Convention [on the Elimination of All Forms of Racial Discrimination]. States parties should formulate restrictions on speech with sufficient precision, according to the standards in the Convention as elaborated in the present recommendation. The Committee stresses that measures to monitor and combat racist speech should not be used as a pretext to curtail expressions of protest at injustice, social discontent or opposition.\u201d","B.Council of Europe","1.Committee of Ministers Recommendation No. R (97) 20","36.On 30 October 1997 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (97) 20 on \u201chate speech\u201d and the appendix thereto. The recommendation originated in the Council of Europe\u2019s desire to take action against racism and intolerance and, in particular, against all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance.","37.An appendix to that recommendation defined \u201chate speech\u201d as \u201ccovering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin\u201d. It went on to lay down a number of principles that applied to hate speech. The relevant ones were:","Principle 2","\u201cThe governments of the member states should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others.","To this end, governments of member states should examine ways and means to:","\u2013 stimulate and co-ordinate research on the effectiveness of existing legislation and legal practice;","\u2013 review the existing legal framework in order to ensure that it applies in an adequate manner to the various new media and communications services and networks;","\u2013 develop a co-ordinated prosecution policy based on national guidelines respecting the principles set out in this recommendation;","\u2013 add community service orders to the range of possible penal sanctions;","\u2013 enhance the possibilities of combating hate speech through civil law, for example by allowing interested non-governmental organisations to bring civil law actions, providing for compensation for victims of hate speech and providing for the possibility of court orders allowing victims a right of reply or ordering retraction;","\u2013 provide the public and media professionals with information on legal provisions which apply to hate speech.\u201d","Principle 3","\u201cThe governments of the member states should ensure that in the legal framework referred to in Principle 2, interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. Moreover, in accordance with the fundamental requirement of the rule of law, any limitation of, or interference with, freedom of expression must be subject to independent judicial control. This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others.\u201d","...","Principle 5","\u201cNational law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect\u2019s right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality.\u201d","2.General Policy Recommendation No. 15 of the European Commission against Racism and Intolerance","38.On 8 December 2015 the Council of Europe\u2019s European Commission against Racism and Intolerance (ECRI) adopted General Policy Recommendation No. 15 on combating hate speech. In its relevant parts, the recommendation reads as follows:","\u201cThe European Commission against Racism and Intolerance (ECRI):","...","Considering that that hate speech is to be understood for the purpose of the present General Policy Recommendation as the advocacy, promotion or incitement, in any form, of the denigration, hatred or vilification of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatization or threat in respect of such a person or group of persons and the justification of all the preceding types of expression, on the ground of \"race\", colour, descent, national or ethnic origin, age, disability, language, religion or belief, sex, gender, gender identity, sexual orientation and other personal characteristics or status;","...","Recognising also that forms of expression that offend, shock or disturb will not on that account alone amount to hate speech...","...","Aware of the grave dangers posed by hate speech for the cohesion of a democratic society, the protection of human rights and the rule of law but conscious of the need to ensure that restrictions on hate speech are not misused to silence minorities and to suppress criticism of official policies, political opposition or religious beliefs;","...","Recalling that the duty under international law to criminalise certain forms of hate speech, although applicable to everyone, was established to protect members of vulnerable groups and noting with concern that they may have been disproportionately the subject of prosecutions or that the offences created have been used against them for the wrong reasons;","...","Recommends that the governments of members States:","...","10.take appropriate and effective action against the use, in a public context, of hate speech which is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those targeted by it through the use of the criminal law provided that no other, less restrictive, measure would be effective and the right to freedom of expression and opinion is respected, and accordingly:","a. ensure that the offences are clearly defined and take due account of the need for a criminal sanction to be applied;","...","c. ensure that prosecutions for these offences are brought on a non-discriminatory basis and are not used in order to suppress criticism of official policies, political opposition or religious beliefs;","...","e. provide penalties for these offences that take account both of the serious consequences of hate speech and the need for a proportionate response...\u201d","39.The Explanatory Memorandum to the recommendation, in its relevant parts, provides as follows:","\u201c16.... the assessment as to whether or not there is a risk of the relevant acts occurring requires account to be taken of the specific circumstances in which the hate speech is used. In particular, there will be a need to consider (a) the context in which the hate speech concerned is being used (notably whether or not there are already serious tensions within society to which this hate speech is linked): (b) the capacity of the person using the hate speech to exercise influence over others (such as by virtue of being a political, religious or community leaders); (c) the nature and strength of the language used (such as whether it is provocative and direct, involves the use of misinformation, negative stereotyping and stigmatisation or otherwise capable of inciting acts of violence, intimidation, hostility or discrimination); (d) the context of the specific remarks (whether or not they are an isolated occurrence or are reaffirmed several times and whether or not they can be regarded as being counter-balanced either through others made by the same speaker or by someone else, especially in the course of a debate); (e) the medium used (whether or not it is capable of immediately bringing about a response from the audience such as at a \u201clive\u201d event); and (f) the nature of the audience (whether or not this had the means and inclination or susceptibility to engage in acts of violence, intimidation, hostility or discrimination).","...","62.... there is also concern on the part of bodies responsible for supervising the implementation of States\u2019 obligations in this regard that such restrictions can be unjustifiably to silence minorities and to suppress criticism, political opposition and religious beliefs.","63.Thus, for example, the Committee on the Elimination of Racial Discrimination, when reviewing reports of States Parties to the International Convention on the Elimination of All Forms of Racial Discrimination, has recommended that the definitions in legislation directed against \u2018extremism\u2019 be amended so as to ensure that they are clearly and precisely worded, covering only acts of violence, incitement to such acts, and participation in organizations that promote and incite racial discrimination, in accordance with Article 4 of that Convention. Similarly, the United Nations Human Rights Committee has expressed concern that such legislation could be interpreted and enforced in an excessively broad manner, thereby targeting or disadvantaging human rights defenders promoting the elimination of racial discrimination or not protecting protect individuals and associations against arbitrariness in its application. In addition, concerns about the use of hate speech restrictions to silence criticism and legitimate political criticism have also been voiced by ECRI and others such as the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Advisory Committee on the Framework Convention on National Minorities\u201d.","C.Organisation for Security and Co-operation in Europe","40.On 9 March 2009 the OSCE Office for Democratic Institutions and Human Rights (\u201cthe ODIHR\u201d) published A Practical Guide on Hate Crime Laws, in which it made the following observations on the possible scope of victim attributes in hate-crime law (pp. 45-46):","\u201cIf a law includes characteristics that are not immutable or in some manner essential to a person\u2019s sense of self and shared by persons who as a group have experienced discrimination, exclusion or oppression, it can be discredited as a hate crime law. Further, it can fail to protect those groups which are in fact victimized. People protected under the term \u201csocial group\u201d might include members of the police or politicians, neither of whom is typically perceived as an oppressed group or as sharing fundamental bonds of identity. Indeed, if a law includes protected characteristics that are too far away from the core concept of hate crime it may no longer be seen as a hate crime law.","Further, the legal concept of certainty requires that a person be able to reasonably foresee the criminal consequences of his or her actions. The concept of legal certainty is reflected in both domestic laws in the OSCE region and regional and international human rights instruments. A law that imposes increased penalties but is unclear about the circumstances in which those penalties will be applied is likely to fail this fundamental test.\u201d"],"97":["6.The applicants were born in 1969 and 1964 respectively and live in Sandnes, Norway.","A.Background","7.The second applicant went to Sweden in the 1980s and met the first applicant in 1993. They have three children, A (born in December 2002), B(born in December 2003) and C (born in February 2007). The second applicant also has a son, D (born in 1989), from a previous relationship, who has lived with the applicants. The applicants lived in the city of Link\u00f6ping until May 2007 when the first applicant travelled to Iran with the children.","8.In February 2007, staff at the Neonatal Unit at the University Hospital in Link\u00f6ping, where C was treated after her birth, contacted the Link\u00f6ping Social Council (socialn\u00e4mnden) due to concerns about the family. The staff had observed that the first applicant had difficulties in understanding C\u2019s needs and lacked ability to read her signals. Moreover, she was very withdrawn and took no initiative to feed C or change her nappy. The staff had suggested that she consult a psychiatrist, but the first applicant had refused. Furthermore, when the second applicant had visited the hospital with A and B, the children had been noisy and unruly and staff had had to intervene to calm them. When the staff had informed the applicants about their concern for the children and their intention to contact the social services, the second applicant had responded aggressively.","9.On the basis of the information from the hospital, the Social Council started an investigation into the family\u2019s situation in accordance with Chapter 11, Section 1, of the Social Services Act (socialtj\u00e4nstlagen, 2001:453). They contacted persons from the Neonatal Unit, the primary health care clinic for children and the women\u2019s clinic, as well as A and B\u2019s child-minder, all of whom expressed great concern about how the applicants were coping with their family situation and described how they had failed to provide A and B with the necessary structure and rules. The Social Council repeatedly offered the applicants placement in an investigation home, but the applicants refused. Instead, they agreed to have a team from the Social Council visit their home on a number of occasions. It was further decided that the whole family should undergo psychiatric examinations.","10.However, it would appear that the applicants repeatedly refused to let the Social Council team enter their home and, from mid-April, before the investigation was completed, the applicants stopped all contact with the team and informed them that they did not intend to undergo psychiatric examinations. The Social Council unsuccessfully tried to re-establish contact with the applicants. In late May 2007, the first applicant and the children left their home, allegedly to spend time with friends. Several persons who were normally in contact with the applicants expressed concern about the children\u2019s situation and the fact that their whereabouts were unknown to them.","11.On 11 September 2007, the Social Council decided to take all three children into public care immediately, on a provisional basis, by virtue of Section 6 of the Special Provisions on the Care of Young Persons Act (lagen med s\u00e4rskilda best\u00e4mmelser om v\u00e5rd av unga, 1990:52; hereafter \u201cthe 1990 Act\u201d). On 21 September 2007, the Administrative Court (l\u00e4nsr\u00e4tten, as of 15 February 2010 f\u00f6rvaltningsr\u00e4tten) confirmed the decision of the Social Council, as did the Administrative Court of Appeal (kammarr\u00e4tten) and the Supreme Administrative Court (H\u00f6gsta f\u00f6rvaltningsdomstolen) upon further appeal. However, the decision was never enforced since it turned out that the first applicant and the children were in Iran. Friends of the applicants informed the Social Council that the first applicant was afraid to return to Sweden since she feared that her children would be taken into public care. Thus, on 13 February 2008 the Social Council cancelled the care order since it could not be enforced. The first applicant and the children stayed in Iran until October 2008 when the whole family moved to Sandnes in Norway.","B.Taking the children into public care","12.In May 2009, the local Norwegian Social Council was contacted by A\u2019s school because he had told the school that both he and B had been beaten by the second applicant. The applicants denied the accusations. The Norwegian Social Council decided to initiate an investigation during which it was agreed that the second applicant would live away from the home and that a Social Council Unit would visit the family daily. On 16 May 2009, the applicants and their children disappeared. Subsequently, the second applicant telephoned, from a Swedish telephone number, the Norwegian Social Council, which in turn contacted the Swedish authorities as it suspected that the family might be in Sweden. Moreover, an anonymous person had telephoned the Swedish Social Council to express serious concerns about the children who, according to this person, were at an address in Link\u00f6ping. When the Social Council staff went to the address given, the family was not there but their luggage was in the apartment. Consequently, on 25 May 2009, the Social Council decided to take A, B and C into immediate public care on the basis of its previous investigation and since it feared that the family would again leave for Iran.","13.On 28 May 2009, the applicants and their children were stopped at Stockholm Airport on their way to Iran and a team from a Social Council close to the airport assisted in the enforcement of the care order. The report made by the Social Council team which picked up the children at the airport described a chaotic situation. The first applicant and B and C had been apathetic while A had been hyperactive. The second applicant had mostly been on the telephone. Neither the first nor the second applicants had reacted when the team had taken the children away with them. A, B and C were all placed in a foster home (familjehem) together, but later A was moved to a separate foster home since he was hyperactive and required special attention.","14.On 10 June 2009, after holding an oral hearing, the Administrative Court confirmed the Social Council\u2019s decision to take the children into immediate public care.","15.The applicants appealed against the judgment to the Administrative Court of Appeal which, on 6 August 2009, struck the case out since, in the meantime, the children had been taken into public care (see paragraph 20 below) and the immediate public care order thereby had lapsed.","16.On 25 June 2009, the Social Council applied to the Administrative Court for a public care order in respect of all three children, in accordance with Section 2 of the 1990 Act. The Council maintained that the applicants had shown a serious lack of ability to care for their children, that there was a clear risk of impairment of their health and development if they were not protected and that the applicants opposed the planned necessary care. It submitted a comprehensive investigation report into the family\u2019s situation in support of its request. The report was based, inter alia, on submissions from the children\u2019s temporary foster homes, the local health care service, reports based on psychiatric examinations of the children, notes from the Child and Youth Psychiatric Clinic (Barn- och ungdomspsykiatrin; hereafter \u201cBUP\u201d) and information from relatives and the Norwegian Social Council.","17.According to the report, none of the children had been accustomed to structure or routines. A maintained that he had been beaten by the second applicant and B had told her foster home that she, A and the first applicant had all been beaten by the second applicant. It was mainly the first applicant who had cared for the children. Hospital and Social Council staff, as well as relatives, had for a long time been worried about her psychological health and encouraged her to seek help. She had denied that she needed help and had refused all treatment. All of the children had lacked communication and emotional response from their parents, which had affected their psychosocial development and their ability to interact socially with other children as well as adults. A was hyperactive and had difficulties following rules and functioning in social situations. His behaviour corresponded to several of the symptoms of Attention Deficit Hyperactivity Disorder (ADHD). B was remarkably silent and withdrawn. Psychiatrists had assessed that she was traumatised and had recommended therapeutic treatment combined with a safe environment where she did not have to deny her experiences. Both she and C were behind in their language development and lacked the ability to express their emotions. Several instances had, over the years, emphasised the children\u2019s need for emotional contact with the applicants. The second applicant had failed to compensate for the first applicant\u2019s inability in this regard and neither of the applicants had managed to establish routines for the children\u2019s basic needs such as food, hygiene, clothes and necessary medical care. Thus, the applicants\u2019 ability to care for their children properly was questioned. The applicants\u2019 impulsive behaviour had led to an unstable and insecure living situation for the children, such as when they had suddenly decided to move to Iran. There was an imminent risk that the applicants would again travel to Iran with their children. All of the children were in need of stability and an environment with clear rules and structure, including stable adults who could compensate for their previous lack of emotional care.","18.The applicants disputed that public care was needed. They submitted that they were capable parents who cared for and loved their children. They had cooperated with the Social Council in 2007 but had been treated inappropriately and disrespectfully by the authorities. They had not fled to Iran but had gone there to visit family, as they did every year. They submitted documentary evidence including medical certificates. According to a Chief Physician at Link\u00f6ping University Hospital Women\u2019s Clinic, the first applicant had accepted special assistance offered to her after the birth of all three children and had kept to this commitment. It had been noted that she felt great affection for her children. Moreover, according to a physician at the applicants\u2019 local health centre, all the children had demonstrated the ability to make emotional contact and had behaved in a way appropriate for their age.","19.The legal representative assigned to defend the children\u2019s best interests supported the Social Council\u2019s stance. He had met all three children and, according to him, the information contained in the investigation gave reason for grave concern for the children\u2019s situation. The parents\u2019 lack of ability to understand their children\u2019s needs, as well as the information about abuse, meant that it was necessary to take the children into public care to ensure that they received proper care.","20.On 20 July 2009, after holding an oral hearing where the applicants and several witnesses were heard, the Administrative Court granted a public care order in respect of each of the three children. It found that, on the basis of all the material in the case, it had been shown that the applicants lacked the ability to care for their children and to understand their needs. This inability had already impaired the children\u2019s health and development in important areas. In the court\u2019s view, there was a real risk of further damage unless the children were given proper care to meet their special needs. Since the applicants did not agree to voluntary care, it was necessary to take the children into public care.","21.The applicants appealed against the judgment to the Administrative Court of Appeal, maintaining that public care was not necessary for any of their children. They denied that either of them had ever hurt the children and stressed that the public prosecutor, in July 2009, had decided to discontinue a preliminary investigation against the second applicant concerning child abuse. Moreover, there was no medical evidence substantiating any accusations of physical violence. They emphasised that all three children were healthy and behaved in a manner appropriate for their age. They welcomed the fact that A\u2019s condition had been diagnosed and were willing to accept appropriate help from the Social Council. The reasons for their decision to travel to Iran in May 2009 were that the second applicant\u2019s father had fallen seriously ill and to spend their holidays there. They submitted, inter alia, further medical certificates and an assessment of the Social Council\u2019s investigation issued by an associate professor.","22.The Social Council contested the appeal. It stated that A had been diagnosed with ADHD and Oppositional Defiant Disorder and emphasised that he was in need of a structured environment and appropriate help in order to develop in a positive way. B was still traumatised and communicated only by nodding or shaking her head. C was physically active, had become more independent and no longer feared daily sounds, such as the vacuum cleaner. The Council submitted a psychosocial investigation report from November 2009, a neuropsychological investigation report dated 26 October 2009 and a medical certificate dated 8September 2009, all concerning A.","23.The children\u2019s legal representative supported the Social Council\u2019s stance. During a meeting with the children, A had declared that he wanted to live with his parents and siblings and that there were too many rules where he now lived. He had stated that the second applicant had sometimes beaten him and had sometimes been kind. B had told her foster home parents that the second applicant had beaten her. The representative emphasised the children\u2019s need to see their parents but referred to the extensive material in the case-file which showed that the children had special needs. The investigations had also highlighted clear warning signals that the children had suffered at home. Moreover, the representative found it questionable whether the applicants would agree to voluntary care, since they had refused to cooperate with the Social Council on previous occasions.","24.On 11 December 2009, after holding an oral hearing where several witnesses were heard at the applicants\u2019 request, the Administrative Court of Appeal upheld the lower court\u2019s judgment in full. It found that the signs of lack of proper care which had appeared during the investigation in 2007 now appeared even more clearly. The investigations carried out after the decision on public care in June 2009 indicated that all of the children had special needs which had been neglected. Additionally, the court noted that both A and B had told various persons, in different situations, that they had been beaten by the second applicant. Although these accusations had not led to any charges against the second applicant, the court stressed that this information had to be taken seriously, since the main purpose of the 1990 Act was to protect the child. Moreover, the court observed that the Social Council had had difficulties carrying out the investigation correctly, mainly due to the applicants\u2019 unwillingness or inability to cooperate with the authorities. The applicants\u2019 unwillingness to cooperate had also manifested itself in their decision to move twice to another country, which had also jeopardised the security and stability of the children\u2019s environment. Making an overall assessment, the appellate court found that the investigations strongly indicated that the applicants had failed to care for their children properly and that they lacked understanding of the children\u2019s special needs and their own inability to care for them. Thus, there was a real risk of damage to the children\u2019s health and development. Lastly, the court noted that both of the applicants had declared that they were willing to receive help from the Social Council while, at the same time, they had refuted the accuracy of the investigation and claimed that the information was fabricated or much exaggerated. They also opposed the care plan developed for the children. Accordingly, there were valid grounds to take the children into public care.","25.The applicants appealed to the Supreme Administrative Court which, on 15 April 2010, refused leave to appeal.","C.Decision to keep the children in public care","26.On 22 September 2010, the Social Council decided that the children should remain in public care.","27.The applicants appealed against the decision to the Administrative Court. They stated that they were settled in Norway, both of them holding full-time jobs, and that they were in contact with the Norwegian Social Council. They insisted that they had fully cooperated with the Swedish Social Council and had done all that had been required of them, including travelling to Link\u00f6ping for meetings with the Social Council and allowing the Norwegian authorities to visit them at home. Moreover, they were actively involved in an ADHD association and were attending courses to understand the condition better and be able to help A. With assistance from the Norwegian authorities and the school, they could take care of A and meet all of his needs. The applicants further questioned whether the Social Council really had a clear plan for how, in due time, to reunite them with their children and contested the Council\u2019s view that they opposed the plan for visits with the children. In fact, the first applicant\u2019s visit with the children had gone very well and the children had also reacted positively to photographs and letters from their parents. Taking into consideration the children\u2019s very young age, they emphasised the importance of not waiting too long before starting the reunion process, and including more frequent visits, in order to avoid a sudden removal from the foster homes which could cause the children emotional harm. Furthermore, the applicants categorically denied that any violence had occurred in their home and they alleged that if any of the children showed signs of trauma, it was most likely due to the traumatic separation from their parents. They submitted, inter alia, medical and other certificates to substantiate their good psychological health.","28.The Social Council contested the appeal. It confirmed that the applicants had cooperated with the authorities and had come to planned meetings with the Council. It attached much importance to the fact that this cooperation needed to continue over time. However, it maintained its view that the applicants opposed the visiting plan since they had requested that the public care of their children be lifted and the children be returned home and since they opposed further care under the provisions of the Social Services Act. Although both of the applicants had demonstrated improvements in their capacity to assess the children\u2019s needs, they still lacked basic understanding of how to care properly for their children. The Council stressed that A had been taken into care due to lack of care at home, not because he had been diagnosed with ADHD. Moreover, A repeatedly spoke about how he had been beaten by the second applicant and he had had to be reassured before the meeting with the first applicant that he would return to the foster home after the meeting. Thus, the decision on public care was partly based on the need to protect him, as well as B and C. The Council further observed that, as concerned B, a psychologist had stated that there were reasons to believe that she had been neglected or traumatised at a preverbal stage of her life and that, consequently, her problems were not linked to being taken into care. Lastly, turning to C, it was asserted that she needed to be protected from neglect in order to develop positively and have her needs met. The Council repeated that there had been concern for the children for a long time and that its findings were based on an overall evaluation of the children\u2019s situation and their parents\u2019 ability to care for them. It submitted various investigation and evaluation reports about the children which it had used as a basis for its decision to keep them in public care.","29.The children\u2019s legal representative supported the Social Council\u2019s stance.","30.On 20 January 2011, after having held an oral hearing, the Administrative Court rejected the applicants\u2019 appeal and upheld the public care order. It first noted that the applicants demonstrated great affection for their children and wanted them to be well and that they were engaged in activities and receiving assistance to understand the problems. The visit between the first applicant and her children had gone well. However, the court observed that the applicants still denied that they had failed in the care of their children and it found that they continued to lack understanding of the children\u2019s problems and their own ability to meet the children\u2019s special needs. Thus, it found no basis for lifting the care order. Moreover, since the applicants had not agreed to the care plan developed for each child, which included their living in a foster home over a longer period of time, there was no basis for voluntary care.","31.The applicants appealed to the Administrative Court of Appeal, maintaining their claims and adding that they had never tried to intervene in the public care of their children but fully cooperated with the authorities in every way possible. They had fully understood that reunion with their children would have to be a gradual process, but it was important that their parent-child links did not disappear. In their view, there was no evidence of any risk that they would flee abroad with their children. Moreover, they considered that the Social Council had based its assessment on old investigations which were no longer relevant. They also questioned for how long the public care would continue, since that might jeopardise the connection between them and their children. They submitted, inter alia, medical certificates and a written observation dated 12 October 2009 and issued by an associate professor concerning the investigations carried out by the Social Council.","32.Both the Social Council and the children\u2019s legal representative contested the appeal. They stressed that all three children had developed positively but that they were still in need of a stable environment. They were undergoing treatment at the BUP due to their special needs. The commitment shown by the applicants was positive for the future, but the deficiencies in care which had been evident when the children were taken into public care still existed.","33.On 15 April 2011, after holding an oral hearing, the Administrative Court of Appeal upheld the lower court\u2019s judgment in full. It first found that the material in the case indicated that the children still had special needs but that they had developed well since being taken into public care. The court further considered that, although the applicants had participated in activities and improved their understanding of A\u2019s special needs relating to his ADHD, they still lacked a more profound understanding of their daughters\u2019 special needs and of their own shortcomings in caring properly for their children. Thus, it concluded that the applicants were not currently in a position to meet their children\u2019s special needs and provide the care they required, for which reason the children had to remain in the foster homes. Since the applicants opposed such care, it was necessary to maintain the public care.","34.Upon further appeal by the applicants, the Supreme Administrative Court refused leave to appeal on 15 June 2011.","D.Contact restrictions","35.On 25 May 2009, when the Social Council decided to take A, B and C into immediate public care, it also decided to keep secret the address of the children\u2019s foster homes and not to grant the applicants contact rights to visit their children. These decisions were confirmed on 10 June 2009 by the Administrative Court. Upon appeal by the applicants, the Administrative Court of Appeal decided, on 6 August 2009, to strike the case out of its list of cases (see paragraph 15 above).","36.On 26 August 2009, the Social Council decided to continue to keep secret the address of the children\u2019s foster homes and to limit the applicants\u2019 contact rights by not allowing any visits. The applicants appealed to the Administrative Court, which quashed the Social Council\u2019s decision and, as concerned the contact rights, referred the case back. Consequently, on 16October 2009, the Social Council issued a new decision denying the applicants any contact rights. In accordance with Section 14, paragraph 3, of the 1990 Act, this decision was reassessed by the Social Council on 23November 2009 but it found no reason to change the previous decision since it considered that there was still a risk that the applicants would intervene in the care of the children if granted contact rights.","37.The applicants appealed against the decision, demanding that it be reversed. They also requested that at least the first applicant be allowed to visit the children. The applicants pointed to the fact that the children had said that they missed them and they stressed that all allegations concerning any sort of abuse were groundless. They denied that they had previously tried to evade the social authorities and emphasised that, even if the authorities believed that there was such a risk, this should not prevent them from being granted contact rights in the presence of representatives of the Social Council. They were also willing to hand over their passports to the authorities.","38.The Social Council contested the appeal. It stated that there were strong reasons to believe that the applicants would intervene in the care of the children and stressed that it was necessary to decide on total restrictions in order to keep the children\u2019s residences secret. If the children\u2019s location was revealed, they would have to be moved to new foster homes. It submitted a document issued by the director of the treatment centre where A had been observed which, among other things, stated that A had said that he missed his mother but had also expressed a wish to be like other children and live in a family where he could feel safe. To the staff at the treatment centre, he had described occasions when he had felt unsafe, such as when he and his siblings had lived alone with the first applicant and when he had been beaten by the second applicant. Since A had been placed at the treatment centre, he had developed and his ability to follow routines had greatly improved. It was of utmost importance that this positive development continue. If A were to meet the applicants, the negative consequences would significantly outweigh the positive. A would suffer from a conflict of loyalty which would seriously impede his positive development.","39.On 10 December 2009, after holding an oral hearing, the Administrative Court upheld the Social Council\u2019s decision. It noted that the applicants had been prohibited from visiting their children for six months and stressed that such extensive restrictions required exceptionally strong grounds. In the court\u2019s view, the applicants were not willing to cooperate with the authorities and had repeatedly demonstrated a tendency to evade the Social Council\u2019s investigations into their family situation. It further noted that all of the children were in need of special care and stability in order for their development to progress positively. On the basis of the investigation the court found that if the applicants were granted contact rights to visit the children, there was a real risk that the second applicant, in particular, would intervene in the public care of the children. Moreover, the court considered that since there was a risk that the children\u2019s residence addresses would be disclosed even if the first applicant were to visit the children alone, she could not be allowed any contact rights alone either. In reaching this conclusion, the court had regard to the best interests of the children and Article 8 of the Convention.","40.The applicants appealed against the judgment to the Administrative Court of Appeal, maintaining their claims. They stressed that the allegation of violence at home was completely unsubstantiated and that the Social Council\u2019s investigation was insufficient and could not form the basis for the complete prohibition of any contact between them and their children. All three children had said that they missed their parents, in particular their mother, for which reason a supervised visit of the first applicant with her children should be authorised. They had not seen their children for ten months and not even been allowed to talk to them on the telephone or write to them. Moreover, they were ready to hand in their passports and meet the children in a neutral location to eliminate any concerns that the authorities had about them \u201cfleeing\u201d with their children. In the applicants\u2019 view, the prohibition on seeing their children violated Article 8 of the Convention.","41.The Social Council maintained that its decision was justified under the Convention and should be upheld. It was true that A and B had expressed the wish to meet their parents. C had not done so, but this was probably because of her late language development. Still, due to the risk that the applicants might escape with the children or obstruct their current care, and since the children had extensive care needs into which the applicants lacked insight, there was a need to prohibit contact rights. Moreover, currently there was no dialogue between the Social Council and the applicants and this would have to be re-established before contact rights could be granted.","42.On 8 April 2010, after holding an oral hearing, the Administrative Court of Appeal rejected the appeal. It first noted that, despite the applicants\u2019 submissions, it did not appear that the second applicant had altered his negative attitude towards the Social Council and was prepared to cooperate. The appellate court further observed that Article 8 of the Convention did not contain a general prohibition on complete contact restrictions. Still, it shared the applicants\u2019 concern that the complete contact restriction could harm the children and noted that the Social Council had a great responsibility to ensure that the children\u2019s need for contact with their parents was met. However, for this to be possible, the parents had to cooperate. Moreover, the court had to evaluate whether the combined risks that contact rights would entail for the children\u2019s health and development outweighed the corresponding risks if there were no contact. In the present case, the court considered that the only way to find suitable solutions to avoid the risks involved in contact rights between the applicants and the children was for the Social Council to plan the visits carefully together with the applicants and for the applicants to be willing to receive the help and support that they needed. As long as these conditions were not fulfilled, it would not be possible to arrange the contact. Furthermore, the appellate court had carefully considered the possibility of granting only the first applicant contact rights with the children. However, in view of its findings, and the first applicant\u2019s passive attitude, it did not consider this a viable option. Thus, a complete prohibition on contact remained the sole solution in the current situation.","43.Upon further appeal, the Supreme Administrative Court refused leave to appeal on 4 June 2010.","44.On 22 September 2010 the Social Council decided that the first applicant should be allowed to meet the children on one occasion during the autumn of 2010 while the second applicant should not be allowed to meet them. Following an appeal by the applicants, the Administrative Court and the Administrative Court of Appeal upheld the decision in judgments delivered on 20 January 2011 and 15 May 2011 respectively. On 15June2011, the Supreme Administrative Court refused leave to appeal.","45.On 22 December 2010 the Social Council decided that the first applicant should be allowed contact rights with the children on two occasions between January and June 2011 and that, during the same period, the second applicant should be allowed to meet the children on one occasion.","46.On 29 June 2011 the Social Council decided that the applicants should be allowed contact rights with their children according to a contact plan. The plan specified that the applicants should meet with their children once every third month, for two hours each time, in a place decided by the Social Council and where staff from the Social Council would be present, as well as a counsellor and interpreter (to translate if the second applicant spoke Persian with the children). Moreover, telephone contact was allowed twice a year, for no more than 20 minutes, in a controlled setting.","47.The applicants appealed against the decision to the Administrative Court, requesting that the contact restrictions be lifted. They stressed that their meetings with their children had gone very well and that they had followed carefully all of the Social Council\u2019s instructions. The children had been happy to see them and hugged them. The fact that they had later had a reaction in their foster home was normal since the meetings had been short and had taken place in an unnatural environment. Moreover, the children had been given negative information about their parents which had affected them and they probably felt a conflict of loyalty between their parents and their foster home. The applicants questioned how a reunion of the family would be possible if they were only allowed to meet their children so rarely and for a short time. They also repeated that they had never escaped with their children to Iran but that they had travelled there once every year to visit relatives. In fact, they had never tried to intervene or obstruct the public care of their children. Instead, they had cooperated and done all they had been asked to do. Both applicants had sessions with psychologists and the second applicant attended a programme called \u201calternatives to violence\u201d. In this respect, he underlined that he had never been aggressive or violent toward his children.","48.The Social Council maintained its decision. It noted that reunion could only take place once the children\u2019s need for care had ceased. So far the meetings between the parents and children had gone well. B and C had had no negative reactions to the last meeting with the applicants but A had had nightmares. The next meeting would take place in an apartment, to give a more natural environment. The children would also meet with their older half-brother. Moreover, the children saw each other on a regular basis, at least every third week, to play and be together. The Social Council also submitted reports of its investigations into the children\u2019s current situation and development.","49.On 27 September 2011, after an oral hearing, the Administrative Court rejected the appeal. It noted from the outset that only contact restrictions which were necessary for the purpose of the care order were allowed, and that the best interests of the children should be paramount when making this evaluation. The court then observed that all three children were receiving extra help and assistance to develop and function in their social settings. They were developing well in their foster homes. It further noted that the applicants\u2019 meetings with their children had gone well and that their contact rights had been extended. However, in the court\u2019s view, the applicants had accepted various measures because the Social Council had told them to do so, not because they felt that they were necessary. Thus, having regard to all the circumstances of the case, the court found that the contact restrictions decided by the Social Council were necessary for the time being. It noted that the Council regularly had to re-evaluate the need for contact restrictions, which opened the way for fewer restrictions in time to come.","50.The applicants appealed against the judgment to the Administrative Court of Appeal and requested that their contact restrictions be eased to allow them to meet their children once every other month. They maintained their submissions as presented before the lower court. Moreover, the second applicant stated that he had realised during his therapy sessions that he had been \u201chard\u201d towards the first applicant, which he realised must have affected the children negatively. However, he maintained that he had never been violent towards his children.","51.The Social Council opposed any changes to the contact restrictions. In its view, the current restrictions were necessary to ensure the children\u2019s continued positive development. It acknowledged that the last two meetings between the applicants and their children had gone well, but stated that the telephone conversation had not been satisfactory since the second applicant had asked questions to try to find out where the children were living and A had felt pressured and sad afterwards.","52.On 20 March 2012 the Administrative Court of Appeal granted the appeal and ordered that the applicants should have contact rights with their children once every other month. In all other parts the contact plan was maintained. The court noted that the second applicant had begun to have better insight into his behaviour and could acknowledge that the way he had sometimes treated his wife could be considered as violence. This was a first step in a process of change with the goal of the children returning home. A part of this process was the contact between the parents and their children. The appellate court found that contact restrictions had been necessary in the instant case but considered that, having regard to the current situation, it should be possible to extend the contact rights as requested by the applicants.","53.Neither the applicants nor the Social Council appealed against this judgment to the Supreme Administrative Court.","E.Further proceedings","54.The decisions to keep the children in public care and to limit the applicants\u2019 contact rights have continued to be reconsidered on a regular basis as stipulated by domestic law (see the part on relevant domestic law, paragraph 68 below). Most of these decisions have not been submitted to the Court, but it appears from the parties\u2019 submissions that, on 27March2013, the Social Council decided to keep the children in public care and rejected a request by the applicants to extend their contact rights. The Administrative Court rejected the applicants\u2019 appeals against these decisions.","55.However, on 4 September 2013, the Social Council granted the applicants extended contact rights, allowing them to meet with the children for three hours every two months and to have telephone contact with them twice a year.","56.The applicants appealed against the decision to the Administrative Court which, on 20 January 2014, increased the applicants\u2019 contact rights by one hour, that is to four hours in total, every other month. It considered that this was in the best interests of the children.","57.Upon further appeal by the applicants, the Administrative Court of Appeal upheld the lower court\u2019s judgment on 23 April 2014.","58.On 10 December 2014 the Social Council decided to maintain the public care order and not to alter the contact rights.","59.The applicants appealed to the Administrative Court, demanding that the public care order be lifted or, at least, that they be granted increased contact rights.","60.The children\u2019s legal representative supported the Social Council\u2019s decisions as she considered that it was in the best interests of the children. They had expressed the wish to stay in their foster homes and, while they said that the meetings with their parents went well, they did not wish them to be increased.","61.On 24 February 2015, after having held an oral hearing, the court rejected the appeal. It noted that the second applicant had continued to show aggressive behaviour towards social workers and that he had been convicted, inter alia, of making unlawful threats (14 counts), threatening a public official (15 counts), slander and abusive conduct against a public official (5 counts) and sentenced to one year and six months in prison. Moreover, the first applicant had been unable to take an active part and be available to her children during their meetings. The applicants had also intervened in the public care of their children, in breach of the contact restrictions. They had, for example, waited outside B and C\u2019s school and followed them to their foster homes, and they had also gone to A\u2019s foster home, making the children afraid and anxious. They had also sent letters and cards directly to the foster homes, despite an agreement that such items should be sent via the social authorities, in order to avoid upsetting the children. The court found that there was therefore no possibility to terminate the public care or transform it into voluntary care. Furthermore, all the children wanted to stay in their foster homes and the current level of visits was working well for the children. Thus, there were no reasons, according to the court, to depart from the well-functioning scale of contact, which was also in line with the will of the children.","62.The applicants appealed against the judgment to the Administrative Court of Appeal. On 22 April 2015, after having held an oral hearing, the appellate court upheld the lower court\u2019s judgment in so far as it concerned the continuation of the public care. It considered that the applicants still lacked insight into their inability to care of their children, which had led to the public care at the outset, since they continued to blame the social authorities. However, the court extended the contact rights to six hours every other month. It noted that there was nothing to indicate that the scale of contact could not be moderately extended without negatively affecting the children\u2019s care. It was important for the well-being of the children that the time spent with their parents provided rewarding moments and had potential to develop their relationship. They should therefore be given enough time during each meeting to share activities and be together.","63.The Court has not been informed of further developments in the case at the domestic level."],"98":["1. The applicant, Mr Alin-Marius Ionescu, is a Romanian national, who was born in 1977 and lives in Giurgiu. He was represented before the Court by Ms C. Boghin\u0103, a lawyer practising in Bucharest.","2. The Romanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","1. Criminal investigation","4. On 2 November 2004, S.A. lodged a criminal complaint against the applicant and his girlfriend, M.A., with the Bologna police. She stated that the applicant had promised her help in finding a job in Italy. He had then helped her to obtain a passport, even paying the necessary fees to the issuing authority. However, once S.A. had arrived in Italy, on 5 October 2004, the applicant and M.A. had taken her passport and had forced her into prostitution so that she could pay the money owed to them for the passport and her journey from Romania to Italy. S.A. also submitted that the applicant had been violent and that when she had asked to be allowed to return to Romania he had beaten her. She also stated that she had been helped to escape by a non-profit organisation, which had offered her a safe place to stay until her return to Romania.","5. An official report, dated 3 November 2004, noted that S.A. had visible bruises near her left eye.","6. On 9 November 2004 S.A. showed Italian police officers the flat in which she had been held against her will. A search was carried out by the Italian police officers at the flat indicated by S.A. The flat belonged to M.A. \u2019 s parents and was used by the applicant and M.A. at the time of the events. A few other persons lived with them.","7. Five other persons (A.C., C.A., P.A.L., A.C.F. and M.C.E), who were living in the flat at the time of the search, were taken to the police headquarters and invited to give statements. According to a report drafted by the Italian police, only A.C. gave a written statement.","8. On 28 October 2005 R.P., a police officer of the Giurgiu Police Inspectorate, proposed that an investigation be opened against the applicant and M.A. for human trafficking. The prosecutor \u2019 s office of the Giurgiu Department for the Investigation of Organised Crime and Terrorism tasked the police officers of the Giurgiu Police Inspectorate with the identification of the applicant, the questioning of the victims and witnesses, and any other activities considered necessary by the investigators. The Italian authorities sent the evidence collected to the Romanian investigative body.","9. On 29 March 2006 R.P. proposed the opening of another criminal investigation against the applicant and his girlfriend for trafficking in respect of two other girls, P.A.L. and M.C.E., who had been found in the flat occupied by the accused in Bologna (see paragraph 7 above).","10. On 30 March 2006 the prosecutor decided to join the two files.","11. I.I. was the police officer in charge of both files at the initial stage of the investigation. He questioned most of the witnesses and the victims at the pre \u2011 trial stage of the investigation.","12. On 6 April 2006 P.A.L. gave a written statement. She stated that the applicant had promised his help in finding her a job in Italy. He had paid for her passport and her transportation to Italy. After her arrival in Italy, the applicant had confiscated her passport and had informed her that he could not obtain the envisaged job for her. He had coerced her into prostitution in order for her to be able to pay him back the expenses incurred in bringing her to Italy. She had worked for the applicant, together with M.C.E. (see paragraph 12 and 14 above). After one month, when she had asked the applicant to give her back her passport, he had refused. She further stated that she had been in the flat when the Italian police had carried out the search on 9 November 2004 (see paragraph 6 above). She had been taken to the police station, but she had not given any statement. After the search, M.A. \u2019 s father had paid for return tickets for her and M.C.E. and had sent them back to Romania.","13. At the end of the preliminary stage, on 9 June 2006, police officer I.I. sent the case file to the prosecutor \u2019 s office attached to the Giurgiu County Court. He noted that there was sufficient evidence for the institution of criminal proceedings against the applicant and his girlfriend, both of whom had recruited, ensured the transportation of, and harboured two girls, S.A. and P.A.L., for the purpose of their sexual exploitation.","14. Most of the witnesses heard by I.I. were re-heard by the prosecutor.","15. Three witnesses, I.P., N.C. and G.A., referred to the applicant \u2019 s attempts to intimidate S.A. into changing her statements after her return to Romania. They submitted that the applicant had threatened S.A. and her mother on several occasions.","16. For example, they stated that on 21 January 2005 the applicant had gone to S.A. \u2019 s home with his cousin, I.P., and asked her to sign a statement prepared by him.","17. On 17 September 2007 S.A. gave a statement to the prosecutor. She stated that she had left Romania for Bologna with N.I. by bus. The applicant and his girlfriend, M.A., had forced both of them to work as prostitutes in order for them to pay back the money spent on their passport and transport. She also claimed that after her return to Romania she and her mother had been constantly threatened by the applicant. He had forced her to write a statement that she had not been sexually exploited by him and that in fact it had been she who had insisted on coming to live with him in Bologna.","18. On 23 October 2007 the Giurgiu prosecutor \u2019 s office indicted the applicant and his girlfriend for human trafficking in respect of only one victim, S.A. (as the part of the case concerning the other victims had been disjoined in the meantime) and sent their case to trial.","2. Proceedings before the first-instance court","19. At a hearing held on 13 February 2008 the applicant and S.A. were heard by the court. The applicant denied that he had paid for S.A. \u2019 s passport and transport. Moreover, he stated that although he had offered her accommodation for one night only she had refused to leave afterwards.","20. S.A. reiterated her initial version of the facts, as presented to the Italian authorities and to the Romanian prosecutor (see paragraphs 4 and 17 above). The applicant, assisted by a lawyer of his choice, was given the opportunity to cross-examine S.A.","21. The applicant \u2019 s lawyer requested that a copy of the statement given by P.A.L. to the Italian police officers on the occasion of the search of the flat in Bologna be submitted to the file. The court refused this request on the grounds that P.A.L. had not given any statement to the Bologna Police (see paragraphs 7 and 12 above).","22. On 25 March 2008 the Giurgiu County Court heard a witness, V.D.I. She stated that the applicant had asked her to come and work in Italy and had paid the fees for her passport. She had later changed her mind and had decided to go to Spain.","23. At the same hearing, S.A. \u2019 s ex-boyfriend, G.A., gave a statement. He stated, inter alia, that in January 2005 the applicant had come to his home (where S.A. had lived until February 2005) and had asked him to convince S.A. to withdraw her complaint against him. Moreover, in February 2005 the applicant had come to S.A. \u2019 s home, where G.A. had happened to be present, and had asked her to write a statement. After S.A. had written the statement as requested, the applicant had asked G.A. to sign the statement, but he had refused. He had also noted that S.A. and her mother had looked very frightened and her mother had called the police.","24. On 25 March 2008 the Giurgiu County Court also heard S.A \u2019 s mother. She stated that the applicant had repeatedly called her daughter after her return from Italy, asking her to withdraw her complaint. He had promised to give back her passport and belongings in exchange for her giving a statement that nothing had happened in Italy. As her daughter had refused to give such a statement he had continued to call and threaten her. In addition to telephoning he had several times come to their home by car, especially at night, and walked around it; this had prompted her to inform the local police and ask for protection. After her daughter had written a statement, as demanded by him, he had stopped making calls and threats.","25. At the same hearing S.A \u2019 s lawyer submitted evidence that she had been admitted to a programme for the protection of victims of human trafficking.","26. At a hearing held on 6 May 2008 the Giurgiu County Court heard another witness, N.G.C. He stated that in 2004 the applicant had called and had asked him to take a girl (N.I. \u2013 see paragraph 17 above ) to Bucharest and help her to get a passport. He had refused, claiming that his girlfriend was jealous.","27. Two witnesses, who shared the flat in Bologna with the applicant and his girlfriend, gave statements on 3 November and 15 December 2008 respectively. They did not agree with the version of events presented by S.A. They stated that S.A., an old acquaintance of the applicant, had been living in the flat until she had been able to find a job.","28. The Giurgiu County Court subpoenaed P.A.L. to attend each hearing. As she did not attend any hearing the court ordered that she be brought before the court by a police officer. However, the orders could not be executed as she had not been found at the address indicated by her when she had given her first statement. According to a police report of 30 June 2008, she had left the country for Italy and her address abroad was unknown.","29. At the last hearing held on 23 February 2009, the statement given by P.A.L. on 6 April 2006, at the investigation stage (see paragraph 12 above), was read out in court as it was noted that despite repeated summons at her domicile she could not be heard by the court.","30. In his last pleadings submitted before the court, the applicant stated that he was innocent and that the whole trial had been set up by I.I., the police officer, who he alleged was in an intimate relationship with S.A.","31. The Giurgiu County Court delivered its judgment on 14 April 2008. It held that the applicant and M.A. had forced S.A. into prostitution. Accordingly, it convicted them of human trafficking and sentenced them to six years \u2019 imprisonment.","32. The court relied on statements given by S.A. (see paragraph 20 above), P.A.L. (see paragraph 12 above) and V.D.I. (see paragraph 22 above), as well as on the file sent by the Italian authorities containing S.A \u2019 s complaint and records of the procedural acts carried out by them. The court noted that in spite of the efforts made to hear P.A.L., she could not be found at the address indicated by her at the investigation stage and by the applicant \u2019 s lawyer (see paragraphs 28 and 29 above).","33. The court also noted that the applicant himself had recognised in one of his statements that he had covered the passport and transport expenses for S.A., N.I. and P.A.L. Moreover, the applicant \u2019 s modus operandi had been confirmed by another girl, V.D.I. She had stated that the applicant would promise to find young girls jobs as housekeepers in Italy, pay their expenses and after their arrival in Italy confiscate their passport and coerce them into prostitution. She had received the same promises and although she had initially intended to go she had then changed her mind because she had not trusted the applicant (see paragraph 22 above).","34. The fact that the applicant had organised the departure of N.I., who had left Romania with S.A., was confirmed by N.G.C. (see paragraph 26 above).","35. The court further noted all the applicant \u2019 s attempts to intimidate S.A., as confirmed by her mother and witness G.A., and that eventually he had managed to coerce S.A. into signing a statement exonerating him of any wrongdoing (see paragraphs 23 and 24 above).","3. Proceedings before the appellate courts","36. The applicant and M.A. appealed. They complained about the way in which the court of first instance had assessed the evidence. In this connection they also complained that the court had not taken into account the statement written and signed by S.A. (see paragraph 35 above), which had been submitted by them for inclusion in the file.","37. On 16 November 2009 the applicant asked the court to hear P.A.L. and indicated a new address in Romania where she could be reached and summoned. He also asked whether among the documents sent by the Italian authorities there had been a statement given by P.A.L. The court noted that according to the report prepared by the Italian authorities (contained in the case file), P.A.L. had not given any statement when taken to Bologna police station in November 2004 (see paragraphs 7, 12 and 21 above). The court noted that although the court of first instance had summoned P.A.L. (and had even issued orders to have her brought to the hearings by police officers) she could not be found at her domicile as she had left for Italy (see paragraphs 28, 29 and 32 above).","38. At the last hearing before the Bucharest Court of Appeal, on 14 December 2009, the applicant \u2019 s lawyer requested the re-hearing of S.A. without indicating why he needed her to be re-heard. The appeal court dismissed the request on the grounds that S.A. had already been heard (see paragraph 20 above) and there were no new elements to justify re \u2011 hearing her.","39. As P.A.L. could not be found, the applicant, assisted by his lawyer, expressly waived his right for P.A.L. to be heard.","40. The applicant was heard by the appeal court at the same hearing. He stated that he did not know P.A.L.","41. In his final submissions the applicant \u2019 s lawyer maintained that the evidence against the applicant was insufficient to rebut the presumption of innocence. He also referred to the alleged intimate relationship between S.A. and police officer I.I. (see paragraph 30 above).","42. The appeal court dismissed the applicant \u2019 s appeal, upholding the decision of the first-instance court. It noted that the applicant and M.A. had only sought a re-assessment of the evidence adduced before the court of first instance, without proposing new evidence or new elements of fact. The appeal court considered that the lower court had thoroughly examined all the evidence adduced by the parties, paying special attention to the documents sent by the Italian authorities and the statements given by S.A.","43. The applicant lodged an appeal on points of law with the High Court of Cassation and Justice. He challenged the evidence on which the courts at the first two levels had based their decisions. He contended that he had been convicted on the basis of the contradictory statements of S.A, the statement given by P.A.L. at the pre-trial stage of the investigation in his absence, the statements given by close family members of S.A. (which had been based on hearsay information), and statements given under pressure to the police by several witnesses. He also claimed that the report drafted on the occasion of the search of the flat by Italian police officers on 9 November 2004 ( see paragraphs 6 and 7 above) had not revealed his alleged involvement in human trafficking.","44. On 26 February 2010 the applicant \u2019 s lawyer submitted several documents, including a copy of a statement given by S.A. before a public notary in which she had described her relationship with police officer I.I. and a copy of a criminal complaint lodged by the applicant against police officer I.I. for abusive investigation.","45. On 19 March 2010 the High Court of Cassation and Justice dismissed the applicant \u2019 s appeal on points of law, upholding the decisions of the lower courts. The court did not make any reference to the statement given by S.A. before a public notary on 23 February 2010 or to the criminal complaint lodged by the applicant against I.I. (see paragraph 44 above).","4. Criminal proceedings against police officer I.I.","46. On 9 February 2010 the applicant lodged a criminal complaint against I.I., claiming that the latter had committed the offence of abusive investigation ( cercetare abuziv\u0103 \u2013 see paragraph 44 above). The applicant argued that police officer I.I. had initiated a criminal investigation against him while he had been living with S.A.","47. The prosecutor \u2019 s decision not to institute criminal proceedings against I.I. was upheld by a decision delivered on 26 April 2011 by the Giurgiu County Court. The court noted that S.A. and police officer I.I. had lived together between August 2006 and April 2009. It noted, however, that their relationship had started after I.I. had referred S.A. \u2019 s case to the prosecutor on 9 June 2006 (see paragraph 13 above). Moreover, the criminal investigation against the applicant for human trafficking had been prompted by the Italian authorities, who had informed the Romanian authorities of S.A. \u2019 s complaint. The investigation had been instituted by police officer R.P. (not by I.I. \u2013 see paragraph 8 above ) and the prosecutor had delegated I.I. to perform only certain activities at the pre-trial stage of the investigation.","48. The court further pointed out that in its view, the only motivation that had prompted the applicant to lodge a criminal complaint against I.I. had been the need to obtain evidence to overturn his conviction. It also noted that the applicant and M.A. had been convicted on the basis of ample evidence and that the evidence heard by I.I. at the investigation stage had not played a significant role in their conviction. The court concluded by noting that there was no evidence in the case file that I.I. had tried to influence witnesses with threats or violence.","B. Relevant domestic law","49. Article 327 \u00a7 3 of the Romanian Code of Criminal Procedure (\u201c the CCP\u201d), as in force at the relevant time, provided that when it was impossible for a court to hear a witness it would read out the testimony given by him or her at the pre-trial stage of the proceedings and would take it into consideration when examining the case.","50. Pursuant to Article 385 (14) of the CCP, as in force at the material time, the High Court of Cassation did not have the power to hear witnesses.","51. Under Article 21 of Law no. 678\/2001 on the fight against human trafficking (the article was repealed on 1 February 2014), only a prosecutor could conduct a criminal investigation concerning offences related to human trafficking."],"99":["A.Background and care order","1.Background","5.A was born in 2011 and is the daughter of the applicant and Y. Both the mother and father had just turned 19 when the child was born. They had been engaged to be married, but the relationship had ended, and the applicant did not name Y as the child\u2019s father. At the father\u2019s initiative, paternity was established by a court on 18 April 2012. The applicant and the child\u2019s father later agreed on joint parental responsibility.","6.When the child was born, the applicant was living at home with her parents, who are Norwegian Roma. Shortly afterwards, she and A were thrown out by the applicant\u2019s father \u2013 the child\u2019s maternal grandfather \u2013 and the applicant, assisted by the social security authorities, decided that she and the child would stay at R. family centre \u2013 a parent-child institution. They moved back home after just under three weeks, but returned to the family centre three weeks later because the maternal grandfather had been violent to the applicant.","7.While the applicant was staying at R. family centre, on 1December 2011 the grandfather stabbed a neighbouring married couple who were the parents of one of the applicant\u2019s friends. The background to this was that he believed that they had helped the applicant to move to the family centre. The applicant was equipped with a panic alarm (voldsalarm).","8.The applicant and A stayed at R. family centre for three and a half months, until 16 February 2012. They then moved back in with the applicant\u2019s family. Shortly thereafter, the Child Welfare Service applied for a care order pursuant to section 4-12(a) of the Child Welfare Act (see paragraph 67 below).","9.On 14 June 2012 the Child Welfare Service issued an emergency care order to place A in an emergency foster home at a secret address, in accordance with the second paragraph of section 4-6 of the Child Welfare Act (see paragraph 67 below). The decision stated that the Child Welfare Service had known the family network for many years and that the family, including the applicant, evaded measures of assistance. The County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker \u2013 \u201cthe Board\u201d) approved the emergency placement the following day. On 18 June 2012 A was moved to the emergency foster home, and on 21 June 2012 it was decided that the applicant would have one hour of supervised contact per week. The reason given for the supervision was the risk that the child might be abducted.","10.On 25 June 2012 the Board reviewed the emergency care order. It noted that the Child Welfare Service had been informed by the staff at R. family centre that there were considerable deficiencies in the applicant\u2019s ability to care for herself and the child, but that she would not accept assistance. Moreover, the Board observed, inter alia, that the applicant had repeatedly moved back from the family centre to her parent\u2019s home, where she herself had been the victim of violence numerous times as well as witness to violence against other family members and neighbours, even after A had been born. A witness from R. family centre had testified that the mother would not take advice, had herself had a troubled childhood and was under the dominance of her father. The witness mentioned that the applicant\u2019s father took decisions for the applicant and controlled her finances. He had also taken her to the social security authorities and presented her as having intellectual disability (psykisk utviklingshemmet) in order to obtain an apartment for himself. The Board added that even when the applicant had lived in a secure environment at R. family centre, she had followed her father\u2019s order to return home.","11.On 23 August 2012 Oslo City Court (tingrett) reviewed and upheld the emergency care order. It noted, inter alia, that there was an obvious (n\u00e6rliggende) risk that the applicant\u2019s father would influence her to prevent the Child Welfare Service from involving itself any further. It took account of how her father had prevented her from going to school, which meant that she still could not read or write and did not have the necessary knowledge for day-to-day life. Further, the City Court found that the applicant was obviously still under strong influence of her father, as had been lately illustrated by how she had two times left the family centre (see paragraphs6 and 8 above) without notice, because her father had asked her to do so. For this reason, the City Court did not attach weight to the applicant\u2019s statements before that court to the effect that she was now willing to accept assistance measures. Moreover, the applicant had stated that she was now living with a friend, but had been unable to give the address. A\u2019s father, Y, supported the emergency care order before the City Court.","12.After three months, on 26 September 2012, A was moved from the emergency foster home to her current foster home. The background to this move was that the emergency foster mother had discovered a car following her after a contact session at the child welfare centre two days before, on 24September. She had reported this to the centre\u2019s emergency foster care department, which had found out that the car belonged to the applicant\u2019s maternal grandfather. The car had been driven by a young man who was alone in the car. Because of the abduction risk, the Child Welfare Service made an emergency order that the applicant would have supervised contact with A one hour per month in suitable premises and with police assistance. A similar decision was made in relation to Y the next day, on 27September.","13.On 5 October 2012 Y initiated custody proceedings against the applicant and requested an order that A live in his care. The appointed expert in that case, A.G.H., concluded that neither parent should have care and control of or contact with A.","14.On 18 October 2012 the Board reviewed the orders on contact rights of 26 and 27 September 2012 (see paragraph 12 above). It found, inter alia, that the incident on 24 September, viewed in conjunction with the other information about the behaviour of the mother\u2019s family and network, showed that the applicant and Y could both be subject to threats or pressure, which again implied a risk that A might be kidnapped. The Board noted that it would be demanding to carry out any contact sessions without A\u2019s identity being revealed to the applicant\u2019s family and network, but the risk would be reduced with fewer visits. The Board also attached weight to A being a vulnerable child who had experienced considerable instability and disorder in her first year. She had recently been moved again and had a particular need for calm and stability.","2.Care order","15.On 19 December 2012 the Board, composed of a chairperson qualified to act as a professional judge, a psychologist and a layperson, in accordance with the first paragraphs of sections 7-2 and 7-5 of the Child Welfare Act, issued a care order pursuant to section 4-12(a) of that act (see paragraph67 below). Before the Board, A\u2019s father, Y, supported the care order and requested visiting rights.","16.On the issue of daily care, the Board considered that A was a vulnerable girl who had already experienced several broken relationships. Referring to case documents and testimony, it assessed A as insecure in her attachment to care persons. The Board further noted that A scored as \u201cdelayed\u201d and otherwise obtained low scores on tests relating to motor skills, communication and social functioning. It appeared clear that she had been under-stimulated until she was placed in the emergency foster home. She had therefore, in the Board\u2019s view, a particular need for stable and predictable surroundings and a care that could further her development (utviklingsfremmende omsorg). The Board found it clearly proved that there were serious deficiencies in terms of the personal contact and security needed by A in light of her age and development. This could be related to the applicant\u2019s own growing up not having been secure and adequate (trygg og god), including that she had been kept away from, or had chosen not to avail herself of, assistance measures from child welfare and health authorities.","17.The Board remarked that the child welfare authorities should consider offering the applicant treatment of her mental health, and further assessed that she would not be able to benefit from child welfare assistance measures without her first obtaining help with her mental health. In addition, the Board noted that the material conditions had considerable deficiencies: the applicant had been assisted to get her own apartment, but had not paid rent or managed to obtain documents in order to have the rent covered by the social security authorities. She had stated that her father had received all the money she had been granted as financial support, to which she had only had limited access. The Board considered that she, in short time, could end up in a situation where she could not offer the child a place to live and food. The Board examined the issue of A\u2019s Roma heritage in light of the United Nation\u2019s 1989 Convention on the Rights of the Child (see paragraph 69 below) and the Council of Europe\u2019s 1995 Framework Convention for the Protection of National Minorities (see paragraph72 below) and concluded that these did not prevent that a care order be issued.","18.As to the question of contact, the Board stated that this had to be determined in light of the proportionality requirement set out in Article 8 of the Convention as well as the United Nation\u2019s 1989 Convention on the Rights of the Child (see paragraph 69 below). According to the case-law of the European Court of Human Rights, the clear starting point was that a care order should be a temporary measure to be discontinued as soon as circumstances permit. Reference was also made to Johansen v. Norway, 7August 1996, \u00a7\u00a7 78 and 83, Reports of Judgments and Decisions 1996\u2011III, according to which the authorities had a \u201cnormal obligation under Article8 of the Convention to take measures with a view to reuniting them if the mother were to become able to provide the daughter with a satisfactory upbringing\u201d. At the same time, contact which did not further the child\u2019s development could be limited, and even denied. The Board further noted that according to case-law of the Supreme Court and the European Court of Human Rights, special and compelling reasons were required in order to justify contact to such limited extent that it had to be considered as a breaking off of contact.","19.The Board went on to examine the instant case in view of the fact that, in its opinion, it would be a long-term placement. This meant that the purpose of contact was for A to get to know her biological origins with a view to potential future attachment. Before the Board, the child welfare authorities had submitted that contact should be denied altogether, because of the risk that A would otherwise be abducted. The Board found it substantiated that it was a member of the applicant\u2019s family who had followed the emergency foster mother on 24 September 2012 (see paragraph12 above) to find out where A had been placed. However, the Board agreed with the parents that there was quite a leap between following someone in order to find out an address and carrying out an abduction. The Board was therefore of the opinion that there was a \u201ccertain risk\u201d of A being kidnapped and kept hidden, but that there was not, at the time it made its decision, a sufficiently present and obvious (aktuell og n\u00e6rliggende) risk. Two contact sessions had taken place since A had been moved from the emergency foster home into her ordinary foster home following the \u201ccar incident\u201d, without anyone attempting to find out her address. Nor had any information about where A had been placed emerged during contact sessions, since she was too young to communicate that information. She would probably be unable to do so for another year.","20.The Board had not found any other circumstances relating to the contact between the parents and A to indicate that special and compelling reasons for denying contact existed, and gave both parents supervised contact of one hour, four times a year. Neither of them was entitled to know A\u2019s whereabouts.","B.First set of contact proceedings","1.The City Court","21.Both the applicant and Y accepted the care order, but the applicant applied to the City Court for contact to be increased, with the frequency to be decided by the court. The father became a party to the case. He first applied for the Board\u2019s decision to be upheld. He subsequently applied for unsupervised contact. The municipality asked the court to deny both parents contact because of the risk of abduction.","22.The City Court heard the case from 18 to 19 June 2013. The court\u2019s bench was comprised of one professional judge, one lay judge and one psychologist (see paragraph 68 below). The parties attended with counsel and gave evidence. Eight witnesses were heard.","23.On 5 July 2013 the City Court gave judgment and ordered that the applicant and Y were not entitled to have contact with A.","24.The City Court found that the applicant\u2019s father had not altered his need to control the applicant and her child. The court referred to statements the applicant had made to the police, to the extent that her father wanted to take over the care of the child and planned to take the applicant and her daughter abroad, kill the applicant and then take over the care of A. He had allegedly said this only a few hours before he had stabbed the parents of the applicant\u2019s friend (see paragraph 7 above). It was also, to the City Court, unlikely that the applicant had cut off contact with her father. In addition, it was likely to have been the applicant\u2019s family who had followed the emergency foster mother (see paragraph 12 above). There was thus a present and obvious (aktuell og n\u00e6rliggende) risk of kidnapping. At the age of two, A had already had to change care persons several times, and it could be considerably harmful if she lost her foster parents because of kidnapping or a risk of such. In addition, the applicant\u2019s father could not in any way be expected to be a serious care person for A. Viewed in connection with the contact sessions that had taken place, which had led to the child having negative reactions and challenged the calm and stability in the foster home, this supported the conclusion that the court should not allow any contact. Weighing the different interests, the City Court concluded that a decision to the effect that the applicant would not be entitled to have contact with A, pertained to her best interests.","25.As to A\u2019s cultural background on her mother\u2019s \u2013 the applicant\u2019s \u2013 side, the City Court concluded that the Council of Europe\u2019s 1995 Framework Convention for the Protection of National Minorities (see paragraph 72 below) could not lead it to reach a different conclusion as to what was in A\u2019s best interests. It added that it would be limited how much the applicant could teach A about the Roma during four contact sessions yearly, and that A would be given information about her background by the foster parents.","2.The High Court","26.The applicant and Y both appealed to the High Court (lagmannsrett) which heard the case, including testimony from the applicant and the child\u2019s father \u2013 who both attended with counsel \u2013 and eight witnesses, three of which were experts. It gave judgment on 5 May 2014, dismissing the appeals.","27.The High Court noted that it was circumstances relating to the applicant\u2019s family that had led it to decide not to allow any contact. It mentioned that the applicant\u2019s father had, over the years, been convicted of possession and use of drugs, driving under the influence of alcohol or drugs (promillekj\u00f8ring, kj\u00f8ring i p\u00e5virket tilstand), thefts and a stabbing. He had been suspected of violent crimes and charged with attempted murder with the use of a firearm, but the charges had been dropped. The applicant\u2019s mother had been fined and sentenced to imprisonment for violent crimes. Moreover, the High Court noted, the applicant\u2019s father had thrown the applicant out of her home when she had had care of the child, then only newborn. The applicant had explained that she had been subject to violence from her father and abuse from her mother and brother. The High Court noted that the applicant\u2019s father was violent and appeared unpredictable. In addition, there had been the incident with the emergency foster mother being followed (see paragraph 12 above). There was, in conclusion, a risk that the child would be abducted and hidden from the Child Welfare Service. The child had already been a victim of neglect when living with the applicant and the applicant\u2019s parents and there were reasons to fear that she would again be subject to neglect if someone in the applicant\u2019s extended family (storfamilie) kidnapped her. Breaking off A\u2019s relationship to her foster parents, to whom she was developing attachment, at that time, would also in itself be serious.","28.The High Court also referred to the fact that a psychologist at an outpatient clinic, K.G.F., had reported that A was marked by neglect in her early life. The psychologist recommended that A, because of her socio-emotional difficulties, be referred to the Children\u2019s and Young People\u2019s Psychiatric Out-Patient Clinic (Barne- og ungdomspsykiatrisk poliklinkk). Furthermore, the psychologist recommended that A, because of her somewhat scarce use of language, attention difficulties and early development delay, in time be examined by educational and psychological services (praktisk-pedagogisk tjeneste) for at least one year prior to starting school. The psychologist had reported that A needed that her needs to develop in a completely secure and predictable environment be given priority, which also implied a need for a continued arrangement in which she did not have contact with the applicant. The High Court noted, in addition, that another psychologist, A.G.H., who had been appointed as expert in the proceedings between the parents concerning custody and parental authority (see paragraph 13 above) had already in 2012 recommended that none of the parents should have contact with A, primarily because of the abduction risk.","29.The High Court disagreed with the Board\u2019s consideration to the effect that, while there was a certain risk of abduction, it could not qualify as present and obvious (aktuell og n\u00e6rliggende), and special and compelling reasons could therefore not be present. In the High Court\u2019s view, an overall assessment had to be made, in which not only the probability of an abduction would weigh in, but also factors such as the consequences of a possible abduction, the child\u2019s robustness and other consequences that contact would entail for the child. Although the main reason for refusing contact lay in the abduction risk, that risk was not the only argument for denying contact. One unfortunate consequence of the abduction risk was that contact sessions would necessarily have to take place without the foster parents \u2013 A\u2019s primary caregivers and those she felt most secure with \u2013 present. This could also harm the child\u2019s confidence in the foster parents. In addition, A had had negative reactions to the sessions that had taken place. The foster parents had stated that she, following the sessions, could cry for a week, be sad, wake up during nights as if she had bad dreams and had developed a rash that looked like eczema which the health visitor had said had been stress-related. The problems associated with the contact sessions had to be seen in view of the fact that A was a vulnerable child.","30.In the view of the High Court, it was not possible for A\u2019s father, Y, to have contact with A either. He had repeatedly been threatened by the applicant\u2019s father, brother and cousin. The court was of the opinion that he could be pressured into disclosing information about A\u2019s whereabouts should it come to his knowledge.","3.The Supreme Court","31.The applicant and Y appealed to the Supreme Court, regarding the application of the law and assessment of the evidence. Written declarations were presented to the court by A.N., a secondary education teacher at a municipal Roma Initiative (Romtiltaket) \u2013 an advice centre that gave help and guidance; H., a case officer with the Child Welfare Service, and the psychologist K.G.F. (see paragraph 28 above). They had also given evidence before the City Court and the High Court (see paragraphs 22 and 26 above). Since the High Court had given judgment, the maternal grandfather had started serving a four and a half year sentence in connection with the stabbing in December 2011 (see paragraph 7 above). The Supreme Court had also been informed that the applicant was pregnant and living with the father-to-be (see paragraph 38 below).","32.In its judgment of 23 October 2014 (Norsk Retstidende (Rt.) 2014 page 976) the Supreme Court first set out the general principles with respect to contact rights, based on the Child Welfare Act, its preparatory works and related Supreme Court case-law, Article 9(3) of the 1989 Convention on the Rights of the Child (see paragraph 69 below) and Article 8 of the Convention on the right to respect for family life as this provision had been interpreted by the European Court of Human Rights in cases such as Johansen v. Norway, cited above; R. and H. v. the United Kingdom (no.35348\/06, \u00a773, 31 May 2011); and Neulinger and Shuruk v.Switzerland [GC] (no. 41615\/07, \u00a7 136, ECHR 2010). The Supreme Court additionally observed that the relevant legal standard that could be inferred from the case-law of the European Court of Human Rights \u2013 that a child\u2019s ties with its family can only be broken \u201cin very special circumstances\u201d \u2013 was also in line with Article 102 and Article 104 viewed in conjunction with Article 92 of the Norwegian Constitution (see paragraph66 below).","33.On the topic of A\u2019s Roma identity, the Supreme Court examined, inter alia, Article 30 of the 1989 Convention on the Rights of the Child (see paragraph 69 below), Article 27 of the international Covenant on Civil and Political Rights (see paragraph 71 below), General Comment No. 11 from 2009, the UN Committee on the Rights of the Child (see paragraph70 below), and Article 5 of the Council of Europe\u2019s Framework Convention for the Protection of National Minorities (see paragraph 72 below).","34.The Supreme Court considered it somewhat unclear whether the High Court had been of the opinion that the risk of abduction alone was sufficiently high to justify denial of contact.Studying the High Court\u2019s reasons, it found that these could be understood to mean that, in the overall assessment, even a small (\u201ccertain\u201d) risk of abduction would be a sufficient basis for denying contact if an abduction would have a strong harmful effect on the child, if the child was vulnerable, and if the child reacted negatively to contact sessions. If this had been the High Court\u2019s point of departure for its assessment, it had not been pertinent. If the risk of abduction could not be said to be real and present (reell og aktuell), contact could not be denied because an abduction would have a severely harmful effect. This also had to apply if the child showed such negative reactions to contact sessions as in the present case, since contact was considered to be in the child\u2019s best interests from a long-term perspective. The Supreme Court also interpreted the municipality to mean that the negative reactions were not in themselves a sufficient basis for denying contact.","35.When turning to the facts of the instant case, the Supreme Court took into account that there had been no direct presentation of evidence before it, nor had any expert witnesses been appointed, which would normally imply that it would be reluctant to depart from the High Court\u2019s assessment of the facts. In the instant case there were, however, some unclear or new aspects of the case that needed further examination by the High Court. This included A\u2019s maternal grandfather having started serving a four and a half year sentence (see paragraphs 7 and 31 above); two years had passed since the incident in which the emergency foster mother had been followed (see paragraph12 above) and nothing had happened since to indicate that the applicant\u2019s family was trying to locate A or planning to abduct her; the applicant had grown older and was anew pregnant, now with a father to-be from a different environment; the applicant had gone to school and undergone a work placement. The Supreme Court wanted an assessment of what the foregoing meant in relation to the possibility of the applicant resisting any pressure exerted by her family and also a more thorough assessment concerning Y.","36.The Supreme Court assumed, as had the High Court, that an abduction would be traumatic for A. She would be torn away from her care situation, and it was unlikely that she would receive satisfactory care if she were hidden from the authorities by someone acting on behalf of her maternal grandfather. The case had still not been sufficiently elucidated before it for it to be satisfied that a real and present (reell og aktuell) risk of abduction existed.","37.The Supreme Court therefore concluded that the High Court\u2019s judgment be set aside so that the case could be reheard by the High Court.","38.On 15 October 2014 the applicant had given birth to a son, B, whose father is of half Chilean and half Peruvian descent.","C.Second set of contact proceedings and final judgment","1.The High Court","39.On 3 November 2014, after the case was returned to the High Court from the Supreme Court, the applicant requested that an expert witness be appointed in order to assess her caring skills in respect of B. On 13January 2015 the court turned the request down. It stated that the key issue was whether a real risk of abduction existed and that an expert assessment of the applicant\u2019s competence to care for her newborn child was not particularly relevant. As to the applicant\u2019s relationship to her own family, and the significance of this with respect to her ability and will to protect A from persons in the family who might pose an abduction risk, it considered that an expert witness would not be particularly qualified to draw a conclusion regarding these circumstances. Insights into these issues could rather be obtained through conversations between the Child Welfare Service and the applicant, and by the applicant\u2019s appearance before the High Court.","40.The applicant and Y also requested an interim measure to the effect that contact be reestablished in line with the Board\u2019s decision. On 12December 2014 the High Court turned the request down. It noted that while the Supreme Court under the relevant procedural law had been formally competent to decide on the merits of the case, it had chosen to quash the High Court\u2019s former judgment because the case had been insufficiently elucidated. A meeting with the parties had since been held on 8December 2014, and the court had then been informed of the child welfare authorities having requested the police to make a report on the abduction risk. The report would be finalised by January-February 2015 and the appeal hearing had been scheduled at 12 March. A new, full hearing, would thus take place in three months\u2019 time and in examining the request for interim measure, the High Court had no further basis on which to assess the abduction risk than that which the Supreme Court had had some one and a half months earlier.","41.During the appeal hearing from 12 to 13 March 2015 in the contact proceedings, the High Court\u2019s bench was comprised of three professional judges, a lay judge and a psychologist (see paragraph 68 below). The applicant and Y attended with their counsel and gave statements. An officer with the Child Welfare Service attended together with the municipality\u2019s counsel. Seven witnesses were heard, including the child welfare officer.","42.In its judgment of 29 April 2015 the High Court concluded that the appeals could not succeed.","43.In its reasoning, the court commenced by noting that it would review all aspects of the case as far as it was elucidated at the time judgment was given.","44.As a rule, children and parents were entitled to have contact with each other after a child had been taken into care under the first paragraph of section 4-19 of the Child Welfare Act (see paragraph 67 below). When applying this provision, decisive importance had to be attached to finding measures that were in the child\u2019s best interests. This included attaching importance to giving the child stable and good contact with adults and continuity of care. Reference was made to section 4-1 of the Child Welfare Act (ibid.).","45.Moreover, the Child Welfare Act had to be interpreted and applied in accordance with Norway\u2019s obligations under various conventions. In the present case, the relevant provisions were found in Article 9(3) of the 1989 Convention on the Rights of the Child on the child\u2019s right to regular and direct contact with both parents (see paragraph 69 below) and Article 8 of the Convention on the right to respect for family life. Since the child belonged to a national minority, Article 30 of the Convention on the Rights of the Child on the right of minority children to live in keeping with their own culture and use their own language also applied (ibid.). In addition, it followed from Articles 5(1), 10(1) and 14(1) of the Council of Europe\u2019s Framework Convention for the Protection of National Minorities of 1February 1995 (see paragraph 72 below) that the State had a duty to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, allow the minority to learn their minority language and use it freely and without interference. The Supreme Court had based several decisions on the understanding that the provisions had to be interpreted in such a way that special and compelling reasons were required to deny contact. The High Court assumed that the same requirement applied to the provision in the Council of Europe\u2019s Framework Convention.","46.The special and compelling reasons relevant to this case were whether there was a real risk of abduction if contact sessions took place and whether there were concrete circumstances that substantiated this fear. The risk also had to be present, but no \u201cpreponderance of probability\u201d could be required. The latter had been clarified by the Supreme Court\u2019s judgment in the instant case (see paragraphs 32-37 above).","47.In the High Court\u2019s opinion, the risk of abduction was still real and present (reell og aktuell). This risk was related to the applicant\u2019s father in particular, but also generally to other people in the community to which he and his family belonged. In this respect, the High Court agreed with the parents\u2019 counsels that theparents had to be assessed as individuals and not on the basis of what group they belonged to. Knowledge about the mother\u2019s environment could nevertheless have a bearing as background information. According to information provided by the police, the Roma community was statistically overrepresented in child abduction cases. This was also consistent with the impression of a psychologist, F. This overrepresentation could be due to the fact that many members of the community did not adhere to the Norwegian model for law enforcement and conflict resolution, and the possibility of keeping children away from the Norwegian authorities provided byfamily ties abroad.","48.The applicant had previously found it difficult to break contact with her family and thecommunity. When she had been given a place at R. family centre inSeptember 2011, she had moved back in with her parents a few weeks later (see paragraph 6 above). On 1 November of the same year, she had been placed in the same institution again, but had moved back in with her family again in February 2012, despite the fact that her father had previously been violent to her (see paragraphs 6 and 8 above).","49.One of the witnesses \u2013 A.N., the teacher from the municipal Roma Initiative (see paragraph 31 above) \u2013 had given a positive assessment of the applicant\u2019s recent development. She was now described as resourceful and eager to learn, she had her own flat, and she had recently had her second child. According to the witness, she could serve as a role model for other Roma women.","50.The High Court did not disagree that there were positive elements in the applicant\u2019s development, but there was also information to indicate that the development had not been as stable as the applicant and A.N. claimed. In May 2013 the applicant had been evicted from her flat after several complaints from neighbours of domestic disputes. She was in receipt of social security benefits because she had no other income with which to support herself and her second child, B. It had also been reported that her work training and school attendance had been somewhat unstable. In the summer of 2013 the police had been called because of an argument between the applicant and her father. Shortly after B\u2019s birth in October 2014 (see paragraph 38 above) social services had raised concerns because the applicant had been at risk of losing her home for being behind on herrent. B\u2019s father had previous convictions for drug crime, among other things, and, according to the applicant, he had been violent to her during her pregnancy. Considering thecircumstances, the High Court considered it natural to assume that the applicant might feel theneed for her family\u2019s help and protection.","51.If the applicant were to come under her father\u2019s influence again, it was unlikely that she would cooperate with the Child Welfare Service to prevent A from being abducted in connection with a contact session. During the investigation of her father in connection with the stabbing (see paragraph 7 above), she had stated that her father wanted to take over the care of A. The applicant had been told that her father planned to take her to another country, kill her and take her child. She had then asked for a domestic abuse alarm device.","52.It was the High Court\u2019s opinion that, if the applicant\u2019s father wanted to take over the care of A, there was little doubt that he would threaten or persuade the applicant to use contact sessions for these purposes if he considered it expedient. He had previously displayed controlling and threatening behaviour in relation to his daughter. He had taken her out of school when she was eight years old. She had been physically abused by him and he had been against her moving out. The High Court\u2019s judgment of 11October 2013, in the criminal case against him, showed that he did not hesitate to carry out aggravated acts of violence when he thought the family\u2019s interests were being threatened. According to the judgment, he had visited a neighbouring married couple who had allegedly been involved in the applicant\u2019s moving out of her parents\u2019 flat into the family centre (see paragraph 6 above). The father\u2019s message had been that the couple was not to interfere in what was an internal family matter. The confrontation had ended with him stabbing the couple and inflicting life-threatening injuries on them both (see paragraph 7 above). He had been sentenced to four and a half years\u2019 imprisonment for this offence (see paragraph 35 above). His criminal record also contained many other serious offences (see, inter alia, paragraph27 above).","53.After a contact session on 24 September 2012, the emergency foster mother had noticed a car following her (see paragraph 12 above). She had stated that she had decided not to drive straight home, and instead had driven around for a while until her pursuer had lost her by a set of traffic lights. The car had been driven by a young man, and had later been found to be registered to the applicant\u2019s maternal grandfather. The episode had been reported to the police, but had not been investigated further. However, the fact that the emergency foster mother had been followed after a contact session by a car belonging to a member of the applicant\u2019s family could not be a coincidence. In the court\u2019s opinion, this episode confirmed the risk of abduction, although nothing more specific could be said about it.","54.The fact that there had been no subsequent episodes to indicate that anyone was trying to locate the child or plan to abduct her did not, in the High Court\u2019s opinion, reduce the risk of abduction to any significant extent. It could just as well be due to a lack of opportunity as a change in attitude. The applicant\u2019s father had been serving a prison sentence during this entire period, and the foster parents\u2019 identity and address were not known to the applicant\u2019s family.","55.The High Court considered that there would also be a real and present (reell og aktuell) danger of abduction in relation to Y if he were to have contact sessions. It was unlikely that he himself would abduct the child, but he might be pressured or tricked into aiding an abduction, for example by being threatened or tricked into disclosing information about A that could help to identify the foster home and foster parents. Y had previously stated that he had received such threats. He had told the police that the applicant\u2019s cousin and younger brother had threatened to kill him, and that this had allegedly taken place on 15 December 2010. His lawyer had written in a letter to the Child Welfare Service dated 8 November 2011 that Y had repeatedly received death threats from the applicant\u2019s father, brother and cousin when he had asked for a paternity test. In the summer of 2012 Y had told the Child Welfare Service that he had reported the applicant\u2019s family to the police twice. One of the official complaints concerned the applicant\u2019s brother and cousin, who he had reported for threatening to shoot him. The second concerned threats from the applicant\u2019s father and uncle. The complaints had been withdrawn because the parties had reached an agreement. He had raised concerns before the Board that the child might be kidnapped. The High Court did not attach decisive weight to the fact that Y, according to his testimony, no longer had any contact with the applicant or her family, and that he no longer shared the Child Welfare Service\u2019s concerns about an abduction.","56.An abduction would clearly be harmful to A, who would in such a case be torn away from the care of her foster parents. A psychologist, F., had testified before the City Court that the child showed signs of having suffered neglect at an early age. She was still a vulnerable child with attachment problems. She needed a calm life, extra security and therapy. She would probably be subjected to more neglect if she were abducted.","57.Other than the general assumption that it was a good thing for a child to get to know its culture and background, there was little to indicate that contact sessions would be beneficial if they were to take place. Contact would be quite limited and the possibility for the child to get to know her background and Roma culture would thus in any case be significantly reduced. In addition, the foster parents had stated that A had shown strong reactions to the contact sessions that had actually taken place. She was a child with special needs. According to the foster parents, the contact sessions had caused her sleep and digestive problems. If contact were to be resumed, psychologist F. feared that it could cause a significant feeling of insecurity and a reaction against the foster parents for allowing this insecurity, particularly as A had suffered significant neglect in her biological family. Both the foster parents and the Child Welfare Service still considered A to be suffering from separation anxiety, which could be exacerbated by contact. The contact sessions could also be stressful for her. The Child Welfare Service had stated that it had to consider the risk of abduction and make the contact sessions supervised and subject to police protection, regardless of the High Court\u2019s conclusion. The High Court had to assume that this would further impair the quality of the contact sessions.","58.The effects that contact would have on the foster parents also had to be taken into consideration. Contact with the biological parents could create insecurity that could in turn have a negative impact on the conditions in the foster home. The incident in which a car had followed the emergency foster mother could be taken into account in this context. The episode had not been investigated, and not much was known for certain about it. In any case, it had to have been an unpleasant experience, and was likely to have created a sense of fear in the foster parents.","59.Neither the 1989 Convention on the Rights of the Child, the Convention nor the Council of Europe\u2019s Framework Convention could lead to any other conclusion. The High Court did not interpret any of these conventions to mean that parents had an unconditional right to contact if it was contrary to the child\u2019s best interest. Under Article 9(3) of the Convention on the Rights of the Child, the right of contact could be exercised except if it was contrary to the child\u2019s best interests (see paragraph69 below). The right to family life was also not unconditional, in accordance with Article 8(2) of the Convention. These exceptions had to be considered as expressions of a general principle in family law (barneretten) to consider the best interests of the child, a principle that had also to be applied when interpreting Article 30 of the Convention on the Rights of the Child (ibid.) and the relevant provisions in the Council of Europe\u2019s Framework Convention (see paragraph 72 below). These provisions also had to allow for contact to be denied in cases, such as this one, where special and compelling reasons so indicated.","60.The State\u2019s obligation to protect its citizens could not lead to any other conclusion either. The risk of abduction not only applied in connection with contact sessions. It was also related to the possibility of the applicant\u2019s family discovering the foster family\u2019s identity and address. If that were to happen, the measures required to protect the child from abduction would be so extensive as to be unrealistic. In the High Court\u2019s view, denial of contact was sufficient to fulfil the State\u2019s obligation to protect A from being abducted.","61.Based on the above, the appeal was dismissed.","2.The Supreme Court\u2019s Appeals Leave Committee","62.Both parents appealed to the Supreme Court. The applicant maintained, among other things, that security measures in connection with contact sessions were not unusual, and that contact sessions had taken place also after the \u201ccar incident\u201d (see paragraph 12 above) without abductions having been attempted. In its response at this point, the child welfare authorities submitted, inter alia, that the fact that some contact sessions had been carried out subsequent to the County Social Welfare Board\u2019s decision (see paragraphs 15-19 above) without abduction having been attempted, could not be decisive. It argued that these sessions, which had taken place with police assistance, had occurred at a time when A had not yet started to talk and did not understand much of the situation.","63.On 7 July 2015 the Supreme Court\u2019s Appeals Leave Committee (H\u00f8yesteretts ankeutvalg) \u2013 composed of three Supreme Court Justices \u2013 refused leave to appeal.","64.The Committee remarked that during the High Court proceedings, the child\u2019s foster mother had testified by telephone without her identity being revealed to the appellants. This was a procedural error. However, it was clear to the Committee that it could not have had a bearing on the substance of the decision, and there was therefore no reason to refer the appeal on this matter for consideration by the Supreme Court.","65.The High Court\u2019s reasons had clearly been sufficient. As to the appellants\u2019 attack on the substance of the High Court\u2019s judgment, the Committee found that neither the decision\u2019s significance beyond the scope of the current case nor any other circumstances indicated that the case should be heard by the Supreme Court. The decision to refuse leave to appeal was unanimous."],"100":["6.The applicant was born in 1942 and lives in Yerevan.","A.Death of the applicant\u2019s son","7.On 9 May 2007 at around 10.30 p.m. a certain S.V. was shot dead following an argument in front of a restaurant owned by the applicant\u2019s son, Levon Gulyan, aged 30. Later that evening a team of law-enforcement officers arrived at the crime scene, which included several police officers of the local Shengavit district police station (\u201cthe police station\u201d), investigators of the Shengavit district prosecutor\u2019s office (\u201cthe prosecutor\u2019s office\u201d) and two officers of the Principal Department for Criminal Intelligence (\u201cthe PDCI\u201d) of the Armenian police: the deputy head of the PDCI, H.T., and the head of the Homicide Unit, G.T.","8.On 10 May 2007 at around 3-4 a.m. Levon Gulyan was taken by police officers to the police station in connection with the incident. PDCI Officers H.T. and G.T. had a talk with him for several hours, after which he was taken to the prosecutor\u2019s office, where between 11.40 a.m. and 12.55 p.m. he was questioned as a witness by the prosecutor. He was kept at the police station until around 10 p.m. Levon Gulyan stated during questioning that he had gone out of his restaurant to smoke that evening when he had noticed a group of young people having an argument. He had unsuccessfully tried to calm them down and then had gone back into the restaurant. Later, when leaving the restaurant, he had seen police cars and other vehicles and found out that someone had been fatally shot. He had not seen the murder or heard gun shots. Two employees of his restaurant, barman H.M. and waitress M.G., were also questioned. M.G. stated that Levon Gulyan had been outside the restaurant when gunshots had been heard.","9.On 11 May 2007 Levon Gulyan appeared again at the police station. The applicant alleged that Levon Gulyan had been kept there for the whole day and night and had been released in the morning of 12 May 2007 in order to be able to participate in a parliamentary election taking place on that day, on the condition that he return to the police station a few hours later. The Government alleged that Levon Gulyan had not been kept at the police station on 11 May 2007 and that he had gone home.","10.On 12 May 2007, at around noon, Levon Gulyan appeared again at the police station.","11.At around 2 p.m. he was taken from there by car to the PDCI which was situated at the Armenian police headquarters, by two PDCI officers, V.G. and S.M., on the order of the head of the PDCI, H.M.","12.At 2.30 p.m. Levon Gulyan\u2019s entry into the police headquarters was recorded.","13.At around 3.20 p.m. Levon Gulyan was found dead in the courtyard of the police headquarters with multiple injuries. It appears that he had fallen from the window of the office of the head of the Homicide Unit, G.T., which was situated on the second floor of the building.","14.At an unspecified time an examination of the scene of the incident and an external examination of the body were carried out. The relevant records stated that Levon Gulyan was lying 2 m from the building with his head towards the building and his legs towards the opposite building. He was leaning on the left frontal part of his body. His shoe laces were missing and were found in his trouser pockets, while a lock of hair was found lying about 1 m away from his body. The frame of the window from which he had apparently fallen was 40 cm wide.","B.Investigation","1.Investigation by the Yerevan prosecutor\u2019s office","15.On the same day, that is 12 May 2007, a prosecutor of the Yerevan prosecutor\u2019s office took a statement from PDCI Officer G.T.,who submitted that Levon Gulyan had been brought to his office at around 2.30 p.m. and he had had a talk with him for about thirty minutes about the circumstances of the murder. In order to report to the deputy head of the PDCI, H.T., the results of the talk, he had then left the office but had not wanted to leave Levon Gulyan alone, so he had taken him to Officer S.M.\u2019s office. On his way to H.T.\u2019s office he had bumped into Officer A.M. and told him to stay with Levon Gulyan in S.M.\u2019s office and to send S.M. for lunch. At around 3.30 p.m., when he had been in H.T.\u2019s office, he had heard noises in the corridor. He had gone out and learned that somebody had fallen from the window. He had run to the courtyard and seen Levon Gulyan lying on the ground. He had immediately called an ambulance and tried to provide first aid, but Levon Gulyan had already died. Later he had learned from A.M. that the latter had moved Levon Gulyan to his (that is to say G.T.\u2019s) office so that S.M. had been able to go for lunch. Levon Gulyan had jumped out of the window of the office when A.M. had gone out to fetch some water.","16.The prosecutor also took a statement from PDCI Officer A.M. who submitted that at around 3 p.m. Levon Gulyan had been taken by Officer S.M. to G.T.\u2019s office. Then Officer S.M. had said that he had had to go for lunch, while G.T. had been at that moment reporting to the deputy head of PDCI, H.T., so he had stayed with Levon Gulyan. He had seen LevonGulyan earlier in Officer S.M.\u2019s office and had been aware that he had been summoned in connection with the murder. Since he had been dealing with that case, he had decided to ask him some questions. Levon Gulyan had been tired and irritated, so he had decided to change the subject and had asked some unrelated questions concerning his restaurant. Levon Gulyan had then asked for permission to smoke and later for some water. There had been no water or bottle in the office. He had gone to a nearby office to fetch water but had then heard the sound of a window opening and a \u201cboom\u201d. He had run back to the office but there had been no one. The window had been open so he had immediately understood that Levon Gulyan had escaped. He had quickly run to the courtyard and had seen Levon Gulyan lying on his back, with blood around his head. There had been no one there, but later the members of his unit had arrived. A.M. submitted that he could not give their names as he had been in a state of shock.","17.The prosecutor instituted criminal proceedings under Article110 \u00a7 1 of the Criminal Code (provoking a person to suicide), relying on G.T.\u2019s and A.M.\u2019s above statements, including their allegation that Levon Gulyan had fallen and died while trying to escape through the window.","18.Following the institution of proceedings, on the same day the prosecutor questioned PDCI Officers G.T. and A.M. as witnesses. They made submissions similar to those made earlier that day (see paragraphs 15 and 16 above). Officer G.T. explained that he had left his office to report to the deputy head of the PDCI, H.T., because Levon Gulyan, during their conversation, had provided the name of a previously unknown person who had been involved in the argument with S.V.","19.The prosecutor furthermore ordered a forensic medical examination, asking the medical examiner to clarify, inter alia, the injuries to Levon Gulyan\u2019s body, whether they could have been sustained as a result of the fall and hitting obstacles on the way down, and his position when sustaining those injuries.","20.On 13 May 2007 the requested medical examination was performed, resulting in medical report no. 402, according to which LevonGulyan had suffered open injuries to his skull and closed and blunt-force-trauma injuries to his thorax and spine, with multiple fractures and bruises, which had been sustained by colliding with obstacles and the ground as a result of the fall and had caused his death. When sustaining the injuries to the skull and the area of the left shoulder girdle, Levon Gulyan had been facing, with the left part of his head and the area of his left shoulder girdle, towards the object that had caused the injuries, whereas when sustaining the injuries to his thorax and the shoulder and lower spine, Levon Gulyan had been facing with the back surface of his thorax towards the object that had caused the injuries. Apart from the above\u2011mentioned injuries there were also bruises on the left side of his abdomen, the left elbow joint, the dorsal surface of the left wrist and the outer surface of the right ankle joint, as well as scratches in the areas of the right elbow joint, the dorsal surface of the wrist joint and the palm, the anterior surface of the left elbow joint, the outer surface of the right ankle joint and the frontal surface of the left knee joint, which had been caused by blunt objects while still alive and could be qualified as minor injuries.","21.On 14 May 2007 the applicant was recognised as a victim and informed of his rights. He was questioned on the same day.","22.On the same date the prosecutor ordered a forensic examination of marks, specifically fingerprints found on the window.","23.On 15 May 2007 an additional examination of the scene of the incident and the building was performed. It was noted that there was a yellow gas pipe passing horizontally along the wall at some distance from the building about two metres below the window. There was also an entresol floor below the ground floor, covered by a shed that stretched from the building into the courtyard. It appears that there was no open exit from the courtyard to the street.","24.On the same date the prosecutor ordered a forensic examination of fibres on Levon Gulyan\u2019s clothes and under his fingernails, and of some smears found on the windowsill.","25.On 17 May 2007 the prosecutor questioned the deputy head of the PDCI, H.T., as a witness.","26.On 18 May 2007 a medical examination was performed, which found that it could not be ruled out that the lock of hair found at the scene had belonged to Levon Gulyan.","27.On 19 May 2007 the prosecutor, following a request by the applicant, decided to order another medical examination of Levon Gulyan\u2019s body to be performed by two foreign experts from Germany and Denmark. That decision stated that on 12 May 2007 Levon Gulyan had been invited to the PDCI for an \u201coperative talk\u201d. The experts were asked to clarify the injuries on Levon Gulyan\u2019s body and their origin, including whether there had been any injuries which could suggest that he had been ill-treated prior to his fall.","28.On the same date the experts conducted the requested medical examination, producing report no. 418, which concluded that the cause of death had been a massive blunt-force trauma to the head and chest. The experts found multiple lesions on the head and body, but no typical defence lesions. The lesions were fresh and had been sustained while still alive. They had been caused by severe blunt force trauma and could, as stated, have been caused by a fall from a height. The distribution of the lesions and the position of the body at the scene suggested that the deceased had hit the ground with the head and the upper part of the body first, and that he might have hit an object on the way down, possibly the pipe seen on the outside of the building under the window. There were no lesions that could not be explained by a fall from a height. On the other hand, it could not be ruled out that a few of the smaller bruises and abrasions could have been caused by another impact (such as a punch or blow) prior to the fall. The experts, having examined the scene of the incident, found no indentations or other indications of a person having hit the shed. They did not examine the gas pipe.","29.On 21 May 2007 the results of the forensic examination of the marks were produced in report no. 16080702, which stated that the fingerprints found on the internal side of the middle part of the window frame and on the left window pane belonged to Levon Gulyan. There was also a palm print and one fingerprint on the window which did not belong to him.","30.On 4 June 2007 the prosecutor ordered an additional forensic examination of the marks. The forensic expert was asked whether the palm print and the fingerprint, which did not belong to Levon Gulyan, belonged to PDCI Officers G.T. or A.M., or to a third person, H.M., the cleaning lady who had apparently cleaned G.T.\u2019s office on 13 May 2007.","31.On 12 June 2007 the results of the forensic examination of the fibres and smears were produced in report no. 16170705, which stated, inter alia, that foreign natural and chemical fibres had been found on Levon Gulyan\u2019s clothes and under his fingernails, which were fit for a further comparative examination. The fibres found on his clothes did not have the same generic origin as those taken from the pipe and the entresol shed. The smears found on the windowsill had the same generic origin as the samples taken from the soles of Levon Gulyan\u2019s shoes.","32.On 18 June 2007 the results of the additional forensic examination of the marks were produced in a report, which stated that the palm print and the fingerprint found on the window did not belong to PDCI Officers G.T. or A.M. or to the cleaning lady.","33.By letter of 12 July 2007 the prosecutor, in reply to an enquiry made by the Yerevan prosecutor\u2019s office, stated, inter alia, that the officers of the police station, having received an assignment to find and bring eyewitnesses, had brought Levon Gulyan to the prosecutor\u2019s office for questioning, which had happened only once on 10 May 2007. He had been accompanied by police officers but not handcuffed. No other investigative measures with his participation had been planned for the period of 10 to 12May 2007 and the question of his appearance on 12 May 2007 at the PDCI was to be clarified with that authority.","34.At some point during the investigation, the Prosecutor General\u2019s Office ordered that an investigative experiment be conducted in order to clarify the mechanics of Levon Gulyan\u2019s fall, but there was no follow-up to that decision because of the absence of a suitable dummy.","35.On 6 August 2007 the head of Armenian police issued a conclusion on the results of an official inquiry into Levon Gulyan\u2019s death, finding that PDCI Officer A.M. had shown a low level of professionalism by leaving Levon Gulyan alone in the office as a result of which Levon Gulyan had attempted to escape and died, while PDCI Officer G.T., as Officer A.M.\u2019s superior, had not properly supervised his subordinate. Both of them were to be subjected to a disciplinary sanction.","2.Investigation by the Special Investigative Service (SIS) and the applicant\u2019s appeals to the courts","(a)Investigation by the SIS, termination of the criminal proceedings and the applicant\u2019s challenge before the courts","36.On 12 December 2007 the investigation was taken over by the SIS and assigned to investigator G.P.","37.On 19 December 2007 the investigator questioned PDCI Officer G.T. as a witness. Officer G.T. stated that Levon Gulyan had been invited to the PDCI in order to clarify the discrepancies between his statement and that of waitress M.G., who had also been invited to the PDCI. In his opinion, LevonGulyan, having found out that M.G. had also been invited, had decided to escape in order not to take part in a confrontation alongside her, as this would have revealed the fact that he had made a false statement. G.T. alleged that Levon Gulyan had found out about the imminent confrontation by overhearing his telephone conversation with another police officer.","38.On 12 March 2008 the investigator terminated the criminal proceedings. This decision, which, following an appeal by the applicant, was approved by the supervising prosecutor, stated that on 12 May 2007 Levon Gulyan and M.G. had been separately invited to the PDCI to clarify the discrepancies between their statements. At the PDCI he had been taken to the office of the head of the Homicide Unit G.T., who had had a talk with him for about thirty minutes, during which Levon Gulyan had provided the nickname of one of the persons who had been involved in the argument with S.V. G.T. had then left the office in order to report this new piece of information, while Levon Gulyan had remained with the deputy head of the Homicide Unit A.M., with whom he had had a talk of a general nature. During their conversation Levon Gulyan had found out that M.G. had also been invited to the PDCI. Realising the imminence of a face-to-face confrontation with her, during which he would not have been able to conceal the identity of those involved in the argument, including that of the murderer, he had decided to escape. For that purpose he had asked Officer A.M. for some water. After A.M. had gone out to fetch some water, Levon Gulyan had tried to escape through the window but had fallen from a height of about 7 m and had died on the spot. Taking into account that Levon Gulyan had not been subjected to violence, threats, or inhuman or degrading treatment during his stay at the PDCI, and the fact that his escape had been motivated by his intention to conceal the identity of the offenders and his death had been the result of a fall, there was no corpus delicti in the actions of the police officers. Nor was there a criminal element in A.M.\u2019s actions, specifically the fact that he had left Levon Gulyan alone in the office, because Levon Gulyan had had only the status of a witness as opposed to that of a suspect or accused.","39.On 7 April 2008 the applicant contested that decision before the courts, complaining in detail that the investigation had not been impartial, transparent and effective. He relied on, inter alia, Articles 2, 5 and 13 of the Convention.","40.On 6 June 2008 the Kentron and Nork-Marash District Court of Yerevan allowed the appeal and ordered that the case be resumed. The District Court held that the investigator\u2019s decision had been unfounded and violated individual rights and that no proper investigation had been carried out and a number of important circumstances had not been established. In its decision, reasoned in detail, the District Court found, inter alia, that: (a)the investigating authority had failed to determine the lawfulness of taking Levon Gulyan and others between 10 and 12 May 2007 to the law-enforcement agencies and keeping them there for extended periods of time; (b) the allegations raised in the press and by some of the witnesses, including barman H.M., that Levon Gulyan had been ill-treated with the purpose of coercing a confession during his stays at the law-enforcement agencies had not been investigated, including the allegation that such acts had been committed in G.T.\u2019s office and had led to his being thrown out of the window; (c) not all reasonable steps had been taken to secure evidence, including questioning police officers, to prevent their possible collusion and preserve the scene of the incident; (d) no proper assessment had been made of the fact that Levon Gulyan had neither been summoned nor gone voluntarily to the PDCI; (e) the events preceding the incident had not been properly clarified, in view of the multiple discrepancies in the statements made by the police officers, which also cast doubt on their credibility and the validity of the conclusions reached by the investigating authority on the basis of those statements; (f) no proper assessment had been made of the alleged behaviour of the deputy head of the Homicide Unit, A.M., upon his return to G.T.\u2019s office, specifically his reaction to the open window; (g) it had not been clarified whether Levon Gulyan had been able to move about freely while at the PDCI; (h) no investigation had been carried out into the fact that his shoe laces had been missing at the time of the incident and had been found in his trouser pockets; (i) no convincing evidence had been obtained concerning LevonGulyan\u2019s fall and the preceding events; the investigating authority from the very outset had carried out the investigation on the premise that Levon Gulyan had attempted to escape and had died as a result of a fall, but had failed to carry out a complete and objective investigation into his motives, including the fact that he had only been a witness and that the window had been more than 7 m high and there had been numerous obstacles in the police building; (j) while, according to the official version, Levon Gulyan had hit an obstacle or obstacles during the fall, which could have been the gas pipe, no explanation had been provided for the absence of any particles on his clothes and under his fingernails of the pipe in question or any other possible obstacle, such as the entresol shed, or vice versa; nor had it been clarified whose fibres had been discovered on Levon Gulyan\u2019s clothes and no samples had been taken in that connection from police officers; (k) no explanation had been provided or samples taken from police officers in relation to the palm print found on the window, which had not belonged to Levon Gulyan; (l) the investigation had not clarified the mechanics of Levon Gulyan\u2019s fall and had not carried out in that connection an investigative experiment because of the absence of a suitable dummy, despite the fact that such an experiment had been ordered by the Prosecutor General\u2019s Office; no measures had been taken to obtain such a dummy from the Prosecutor General\u2019s Office of Russia within the framework of inter-State legal assistance; (m) no investigation had been carried out in connection with the findings of foreign experts concerning the other injuries found on Levon Gulyan\u2019s body, such as small bruises and scratches; (n) it had not been clarified how a lock of hair belonging to Levon Gulyan had been found lying at a distance from his body; (o) the applicant and other victims in the criminal case had not been involved in any investigative or other procedural measures and had had no possibility to pose questions to the police officers or the experts; and (p) the remains of a cigarette found in the ashtray in G.T.\u2019s office had not been seized and examined to determine whether it had been Levon Gulyan who had smoked it.","41.On 16 June 2008 the prosecutor lodged an appeal against this decision.","42.On 21 July 2008 the Criminal Court of Appeal dismissed the prosecutor\u2019s appeal and upheld the findings of the District Court. It further added that the investigation had been flawed and based on only one premise, that of Levon Gulyan\u2019s attempted escape. Furthermore, the explanation provided for that sole premise was farfetched and the investigating authority, having showed a one-sided approach to the assessment of the collected evidence, had failed to carry out an impartial, objective and full investigation in that connection, thereby reaching inaccurate conclusions. The investigating authority had failed to explain and assess why Levon Gulyan, who had already been questioned, had been \u201cinvited\u201d and then, having been de facto deprived of his liberty, transferred to the PDCI in order to carry out \u201cinvestigative measures, including a cross-examination\u201d by officials who had had no authority to do so, which had violated his right to liberty and resulted in his demise. There had been no instruction from the investigator to carry out a face-to-face confrontation and, moreover, by taking Levon Gulyan to an alleged confrontation, the PDCI officers had violated Article 206 \u00a7 2 of the CCP, pursuant to which a witness had had to be questioned at the location where the investigation had been in train or, if necessary, where he or she had been located, whereas the PDCI could not be considered to have been either of those. The assessment of evidence had not been objective since the investigating authority had given preference to the statements of the police officers without a proper evaluation of other evidence in the case. The resulting decision, which had been taken in violation of the Constitution and Article 2 of the Convention, had amounted to a two-page document which had failed to make even a single reference to any evidence.","(b)Resumption of the criminal proceedings, their subsequent termination and the applicant\u2019s challenge before the courts","43.On 16 August 2008 the investigation was resumed and assigned to the same SIS investigator.","44.On 18 August 2008 the SIS investigator sent a letter to the PDCI, requesting that an investigation be carried out in order to find out whether Levon Gulyan\u2019s fall had been witnessed by any police officers, and to report back.","45.Between September 2008 and April 2009 the investigator conducted a number of interviews, including with Officers A.M., G.T., V.G. and S.M., the head of PDCI, H.M., as well as two other PDCI officers, H.S. and E.V. The applicant and his representatives were present at these interviews and were apparently able to pose questions. Levon Gulyan\u2019s wife and the cleaning lady were also questioned as witnesses during the same period.","46.On 13 September 2008 the Prosecutor General\u2019s Office of Armenia sent a letter to the Prosecutor General\u2019s Office of Russia, enquiring about the availability of a 178-cm-tall dummy weighing 95 kg for the purpose of carrying out an investigative experiment.","47.By letter of 1 December 2008 the Prosecutor General\u2019s Office of Russia replied that they did not have at their disposal a dummy matching the specified characteristics. However, they had purchased dummies 170 cm tall and weighing 40 kg, one of which could be provided to the Armenian authorities. It appears that there was no follow-up to this offer.","48.On 16 April 2009 the investigator terminated the criminal proceedings. This decision, which, following an appeal by the applicant, was approved by the supervising prosecutor, provided a similar account of events to the decision of 12 March 2008, with the exception that it stated that LevonGulyan had found out about the imminent confrontation with waitress M.G. from a telephone conversation he had overheard between PDCI Officer G.T. and his colleagues, and that Levon Gulyan had hit a pipe during the fall. The decision similarly concluded that there was no corpus delicti in the actions of the police officers. It referred, inter alia, to the statements of a number of police officers, medical reports nos. 402 and 418 and reports nos. 16080702 and 16170705. Relying on the latter two documents, the decision stated that the fact that Levon Gulyan had climbed onto the windowsill without any external assistance was substantiated by his fingerprints found on the window and the smears found on the windowsill, left by his shoes.","49.On 3 July 2009 the applicant contested that decision before the courts, complaining, inter alia, that the investigating authority, lacking from the very outset the intention of establishing the truth, following the resumption of the criminal proceedings had carried out an investigation which had been a pure formality and had ignored the issues raised in the court decisions. He relied, inter alia, on Articles 2, 5 and 13 of the Convention.","50.On 2 December 2009 the Kentron and Nork-Marash District Court of Yerevan dismissed the applicant\u2019s arguments and upheld the investigator\u2019s decision of 16 April 2009.","51.On 11 December 2009 the applicant lodged an appeal against this decision.","52.On 5 February 2010 the Court of Appeal dismissed the applicant\u2019s appeal and upheld the decision of the District Court.","53.On 25 February 2010 the applicant lodged an appeal on points of law.","54.On 27 August 2010 the Court of Cassation allowed the applicant\u2019s appeal on points of law, quashing the decisions of the lower courts and obliging the investigating authority to remedy the violations of individual rights which had taken place in the course of the investigation. The Court of Cassation stated at the outset that the authorities were required under Article2 of the Convention to carry out an effective investigation with the aim of providing a convincing explanation for the death of LevonGulyan who, at the material time, had been under the supervision of the PDCI officers. It further held that not all measures had been taken yet for the authorities to be considered to have fulfilled this requirement. In particular, no investigative experiment had been performed to determine the mechanics of Levon Gulyan\u2019s fall, whereas the necessity of such an experiment had been confirmed by the Kentron and Nork-Marash District Court of Yerevan, the investigating authority and the supervising prosecutor. The investigating authority was still reasonably capable of taking measures to obtain the necessary dummy, since it could be ordered from the same company which provided dummies to the Prosecutor General\u2019s Office of Russia. However, the investigating authority had not taken any measures in that connection in the four months following the letter of 1 December 2008. It was therefore necessary to obtain the dummy in question, carry out the experiment, compare its results with the other evidence and, if necessary, carry out other investigative measures. The Court of Cassation held that a conclusive finding on the fulfilment of the procedural obligation of Article 2 of the Convention would be possible only following the implementation of the experiment in question and, if necessary, of the resulting other measures. A global assessment of the effectiveness of the investigation would be possible after taking into account all such evidence. Therefore, the questions raised by the applicant in his appeal could be answered only after the investigation had been completed.","(c)Resumption of the criminal proceedings, their subsequent termination and the applicant\u2019s challenge before the courts","55.On 18 January 2011 the investigation was resumed and assigned to the same SIS investigator.","56.On 24 January 2011 the investigator applied to the Prosecutor General\u2019s Office, requesting assistance in obtaining an appropriate dummy from the Prosecutor General\u2019s Office of Russia.","57.By letter of 18 March 2011 the Prosecutor General\u2019s Office replied that the fact of Levon Gulyan\u2019s death as a result of an attempted escape through a window had been established and it was impossible to guarantee the objective legitimacy of results by carrying out the investigative experiment, since Levon Gulyan, from the moment he had climbed onto the windowsill and until his collision with the ground, had performed conscious and intentional actions characteristic exclusively of his physical fitness and mentality, which were impossible to replicate with the help of a dummy or through any other experiment and research, and it was objectively impossible to approximate the circumstances of an investigative experiment to the actual event and to establish through such investigative experiment any circumstances having evidentiary value.","58.On 21 March 2011 the investigator terminated the criminal proceedings on the same grounds as previously, reiterating, inter alia, the position set out by the Prosecutor General\u2019s Office.","59.On 2 May 2011 the applicant contested that decision before the courts.","60.On 25 May 2011 the Kentron and Nork-Marash District Court of Yerevan allowed the applicant\u2019s appeal and to oblige the investigator to restore his violated rights. It found that the investigating authority had failed to carry out a full and comprehensive investigation, to show due diligence and to comply with the requirements of the Court of Cassation\u2019s decision of 27 August 2010. Instead of obtaining the necessary dummy for the purpose of ensuring the effectiveness of the investigation and giving a global assessment to the incident through comparison of evidence, the investigating authority had decided once again to terminate the proceedings by relying \u2013 without any proper reasoning \u2013 on the prosecutor\u2019s unfounded letter of 18 March 2011, which had had no evidentiary value.","61.On 3 July 2011 the prosecutor lodged an appeal against this decision.","62.On 30 June 2011 the Court of Appeal dismissed the prosecutor\u2019s appeal and upheld the decision of the District Court","63.On 18 July 2011 the prosecutor lodged an appeal on points of law.","64.On 26 August 2011 the Court of Cassation declared the appeal on points of law inadmissible.","(d)Resumption of the criminal proceedings and their subsequent termination","65.On 8 September 2011 the investigation was resumed and assigned to the same SIS investigator.","66.On 6 December 2011 the SIS investigator sent enquiries to the Ministry of Defence, the Ministry of Emergency Situations, the Armenian police and the National Security Service, inquiring whether they had a dummy weighing 95 kg and with a height of 178 cm. It appears that none of those authorities had at their disposal a dummy of the required size.","67.On 8 February 2012 the investigator terminated the criminal proceedings on the same grounds as previously. This decision stated, inter alia, that it had been impossible to carry out an investigative experiment because of the absence of a dummy and, even if such an experiment were to be carried out, this would not lead to the establishment of any circumstances having evidentiary value.","68.The applicant alleges that he had never been informed about this decision and a copy of it was served on him only in April 2015 after he had applied to the authorities for additional information and copies of documents in order to submit them to the Court."],"101":["5.The applicant was born in 1976 and lives in Zagreb.","6.She gave birth to her first three children in hospital. In 2011 she became pregnant with her fourth child and had a due date in February 2012.","7.In November 2011 she sent a letter to the Croatian Chamber of Midwives (Hrvatska Komora Primalja), enquiring about the possibility of having professional assistance with a home birth. She explained that her first three hospital deliveries had gone normally, without the need for much medical intervention, but that she had not felt fulfilled afterwards. She therefore wanted to give birth to her fourth child at home.","8.On 1 December 2011 she received a reply that according to the relevant domestic legislation health professionals, including midwives, were unable to assist with home births. In particular, although the Act on Midwifery allowed the setting up of private practices by midwives, the Healthcare Act, as the general Act in the sector, still did not expressly provide for such a possibility. Therefore, since the matter was not clearly regulated, no midwife had set up a private practice or officially assisted with home births. The letter also cited a statement from the Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi Republike Hrvatske - hereinafter \u201cthe Ministry of Health\u201d) issued in August 2011 and published on the Croatian Chamber of Midwives\u2019 website:","\u201cHaving regard to the current circumstances, where the requirements for organising a system of professionally conducted home births do not exist (education and training of personnel) and where the other accompanying elements (availability of emergency transport and proper admission [to a medical facility] in the case of complications) which would enable safe delivery at home are lacking, we are of the opinion that in this area of healthcare the lawmaker has ensured, as far as possible, all the conditions for the care of mothers and the right of children to life and health. Considering the above, we are of the opinion that the protection of children, who do not choose the circumstances of their coming into this world, takes precedence over respect for a woman\u2019s right to freely choose to give birth outside a medical facility.\u201d","The Croatian Chamber of Midwives thus declined to assist with the applicant\u2019s planned home birth. It noted that home births nevertheless occurred in Croatia, and for that reason it had urged the Ministry of Health to clearly regulate the matter as soon as possible.","9.On 15 February 2012 the applicant gave birth to her child at home, assisted by a midwife from abroad.","10.After the birth a paediatrician and a gynaecologist allegedly declined to examine the applicant and her baby but she eventually managed to find doctors who examined them both.","11.On 23 February 2012 the applicant registered the birth and obtained a birth certificate.","A.Statements by the Ministry of Health and the Ministry of Administration","12.On 11 May 2011 the Ministry of Health sent a letter in reply to an enquiry from the Ombudswoman for Children (Pravobraniteljica za djecu), which stated that the relevant domestic law provided that babies were to be delivered in medical facilities. The question of home births had not been regulated by law and medical assistance in such procedures was considered as quackery. It further stated that home births were the personal responsibility of the mother and the person assisting with the delivery. In the event of a delivery outside a medical facility and where a woman claiming to be the mother did not have any medical documentation, the doctor carrying out the first examination of the child was obliged to make note of the absence of such documents. The doctor was not allowed to register data which he or she was not able to verify.","13.On 25 August 2011 the Ministry of Administration (Ministarstvo uprave Republike Hrvatske) sent a letter in reply to an enquiry from the Parents in Action - Roda NGO (Roditelji u Akciji \u2013 Roda) stating that the law provided for the possibility to register the civil status of a child born outside a medical facility. It further stated that officials were obliged to verify data reported to them before putting anything down in the State register. Consequently, a person reporting the birth of a child born outside a medical facility was required to submit proof that the woman reported as the child\u2019s mother had indeed given birth to the child. The medical documentation required for proving such circumstances was a matter for the health administration authorities.","14.On 31 May 2012 the Ministry of Health replied to an enquiry from Parents in Action \u2013 Roda NGO by saying that it had never instructed doctors not to examine children born at home. On the contrary, having regard to the increased frequency of situations in which doctors were faced with having to examine children born at home without any medical documentation, it had consistently held that doctors were obliged to examine such children but were not allowed to register any data that they were not able to verify. It added that home birth was still not regulated by law and that therefore there was no mechanism for registering requests for home birth or regulations on the duty to report them.","B.Report of action against midwives","15.On 24 January 2012 the Croatian Chamber of Midwives reported on a case in which, according to the media coverage, a woman who had given birth at home had been separated from her child for two days. In particular, the hospital had called the police and social workers in order to establish that she was indeed the child\u2019s mother after she had refused to be examined by a gynaecologist in a hospital. In addition, several midwives suspected of having taken part in the birth had been questioned by the police.","16.According to information submitted by the Government, no health professional has ever been prosecuted in criminal proceedings or sanctioned for assisting with a home birth.","17.In the Concluding Observations on the combined fourth and fifth periodic reports on Croatia issued on 24 July 2015, the Committee on the Elimination of Discrimination against Women expressed concern regarding the lack of oversight procedures and mechanisms for ensuring adequate standards of care, the protection of women\u2019s rights and their autonomy during deliveries and the lack of options for giving birth outside hospitals.","18.A survey on maternity practices in Croatia undertaken by the Parents in Action - Roda NGO in March 2015 noted situations of women\u2019s wishes being disregarded by medical staff during childbirth, of a lack of consent for procedures conducted during labour, and limits on the presence of an accompanying person during childbirth.","19.The Gender Equality Ombudsperson (Pravobraniteljica za ravnopravnost spolova) issued a research report in 2013 which noted inconsistencies in hospital practices regarding the presence of an accompanying person during childbirth."],"102":["1. A list of the applicants is set out in the appendix. Five of them are Latvian nationals and five of them are \u201cpermanently resident non-citizens\u201d of Latvia (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654\/00, \u00a7 46, ECHR 2007 \u2011 I). They were represented by Mr W. Bowring and Mr P. Leach, lawyers practising in London.","2. The Latvian Government (\u201cthe Government\u201d) were represented by their Agents, Ms I. Reine and subsequently by Ms K. L\u012bce.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","1. Background to the case","4. The relevant historical and legal background to the case has been described in detail in the case of Liep\u0101jnieks v. Latvia (dec.) (no. 37586\/06, \u00a7\u00a7 2-3, 5-10, 2 November 2010).","2. The building at 4 J\u0113kabpils Street","5. The building located at 4 J\u0113kabpils Street (current address) is an example of Art Nouveau architecture in Riga; it was amongst the buildings which were nationalised under Soviet rule.","6. On 8 June 1986 the Council of Ministers of the Latvian Soviet Socialist Republic adopted a decision No. 251 concerning involvement of young workers in the construction of residential premises. Under this scheme, from April 1988 to May 1991 the applicants, together with other workers, participated in the renovation of the building located at 4 J\u0113kabpils Street and in construction work on two new residential buildings. The applicants were not professional builders; they were employees of various State and municipality companies and institutions which financed the works. For the duration of the construction works the applicants were temporarily dismissed from their posts; however, their positions were maintained for them. The applicants received remuneration for their work. They submit that this remuneration was considerably lower than the wages they had previously earned. In return for their labour the applicants and other workers were entitled to \u201cliving space\u201d in one of the buildings in question. Most of the workers were allocated apartments in the newly-built residential buildings, which they were later able to privatise, but the applicants were allocated apartments in the building at 4 J\u0113kabpils Street.","7. Consequently, in July and August 1991 each applicant concluded a lease agreement with the relevant territorial executive board of the local municipality ( R\u012bgas Latgales priek\u0161pils\u0113tas izpilddirekcija ). The agreements took the form of pre-typed standard texts, not indicating the amount of rent payable. The lease agreements entitled each of the applicants and their family members to rent one designated apartment in the building in question for an indefinite period of time ( beztermi\u0146a lieto\u0161ana ). At that time the amount of rent payable was not set by the parties to the lease but by the State \u2019 s administrative authorities.","8. On 11 February 1993 the building was denationalised and returned to its former owners. The applicants continued living in the apartments in the building on the basis of the 1991 leases.","3. Civil proceedings concerning denationalisation","9. In June 1993 the applicants brought a civil action to dispute the denationalisation of the building. Their action was examined at two levels of jurisdiction and dismissed. The city court found that the denationalisation of the building had been lawful and that the applicants did not have title to the apartments. The final decision was taken by the Supreme Court on 29 March 1995. It upheld the city court \u2019 s ruling, which became final.","4. Proceedings against the applicants","(a) Eviction proceedings","10. After the expiry of the seven-year non-eviction period that followed the restoration of their property rights (for more details see Liep\u0101jnieks, cited above, \u00a7\u00a7 9-10, 35), in 2006 and 2007 the owners initiated eviction proceedings before the civil courts against some of the applicants and their families on the grounds of non-payment of rent. They asked the court to terminate the leases without allocating them another place of residence.","11. The eviction proceedings against Mr Kvas\u0146evskis and his family lasted from 24 July 2006 to 8 July 2014. As a result of those proceedings the 1991 lease was terminated and Mr Kvas\u0146evskis had to pay the outstanding rent. Mr Kvas\u0146evskis was not immediately evicted as he obtained stay of execution of the eviction order until such time as the municipality could offer him another place of residence to rent. After having refused three consecutive lease offers from the municipality ( see paragraph 20 below ), Mr Kvas\u0146evskis was struck off the relevant municipal register. Mr Kvas\u0146evskis and his family were evicted in February 2016.","12. The eviction proceedings against Mr Vi\u017ei\u010da\u0146ins and his family lasted from 3 July 2006 to 18 June 2009. As a result of those proceedings the 1991 lease was terminated and Mr Vi\u017ei\u010da\u0146ins had to pay the outstanding rent. In January 2009 he received social assistance from the municipality in the amount of 25,000 Latvian lati (LVL) (35,571.80 euros (EUR)) to buy another place of residence ( see paragraph 24 below ). Mr Vi\u017ei\u010da\u0146ins and his family were evicted on an unknown date.","13. The eviction proceedings against Mr Kazak\u0113vi\u010ds and his family lasted from 3 July 2006 to 5 January 2009. As a result of those proceedings the 1991 lease was terminated and Mr Kazak\u0113vi\u010ds had to pay the outstanding rent. Mr Kazak\u0113vi\u010ds and his family were evicted in January 2009. On 11 February 2009 Mr Kazak\u0113vi\u010ds moved in with his daughter, who had taken out a loan to buy a small apartment.","14. The eviction proceedings against Mr Krilovs and his family lasted from 21 August 2007 to 25 January 2012. As a result of those proceedings the 1991 lease was terminated and Mr Krilovs had to pay the outstanding rent. Mr Krilovs and his family were evicted on an unknown date.","15. The eviction proceedings against Mrs Jengovatova and her family lasted from 24 July 2006 to 9 May 2013. As a result of those proceedings the 1991 lease was terminated and Mrs Jengovatova had to pay the outstanding rent. Mrs Jengovatova and her family were evicted on an unknown date.","(b) Proceedings concerning levels of rent","16. Mrs Dro\u017e\u017eina, unlike the applicants mentioned above, continued to pay the statutory rent until that system was abolished by the Constitutional Court ( see paragraph 36 below ). As of 1 September 2007 the owners set the rent at LVL 5 (EUR 7.11) per square metre. She was notified of the increase at least six months before that date. Proceedings ensued in the civil courts concerning the determination of a reasonable level of rent. In the course of those the owners reduced their claim to LVL 3 (EUR 4.27) per square metre; this claim was upheld by the first-instance court on 30 April 2010. Mrs Dro\u017e\u017eina was unable to pay such rent, so she took out a loan and bought a small apartment in the outskirts of Riga in 2010. Mrs Dro\u017e\u017eina and her son left the apartment on an unknown date.","(c) No proceedings taken","17. No eviction proceedings have been instituted against the remaining applicants (Mrs Zaiceva, Mrs \u0160edova, Mr \u0160er\u0161\u0146ovs and Mrs P\u013cu\u0161\u010dika) as they continued to pay the statutory rent until that system was abolished by the Constitutional Court. On an unspecified date the owners set the rent at LVL 1.5 (EUR 2.13) per square metre, an amount which these applicants did not contest.","5. Municipal assistance","18. Since 2004 several applicants have approached the local municipality, Riga City Council ( R\u012bgas dome ), with a view to obtaining its assistance on matters relating to apartments. It was explained to them that under domestic law, no municipal assistance on matters relating to apartments was available to persons who had participated in construction work under Soviet rule. At the same time, reference was made to regulation no. 61 (see \u0145ikitina v. Latvia (dec.) no. 33666\/08, \u00a7 35, 20 September 2011) and they were encouraged to apply for municipal assistance under that regulation.","(a) Register no. 7","19. Subsequently seven of the applicants (Mr Kvas\u0146evskis, Mrs Zaiceva, Mrs \u0160edova, Mr \u0160er\u0161\u0146ovs, Mr Vi\u017ei\u010da\u0146ins, Mrs P\u013cu\u0161\u010dika and Mrs Jengovatova ) and their families were entered in register no. 7 for priority treatment in receiving municipal assistance in the allocation of a place of residence (for rent). Register no. 7 was designed to include persons in need of the municipality \u2019 s assistance who had low-income status, were tenants in denationalised buildings and did not have any other place of residence.","20. Mr Kvas\u0146evskis and his family were struck off register no. 7 because they refused three consecutive offers of lease from the municipality. The relevant decision (17 May 2011) was amenable for review by a higher authority and subsequently by the administrative courts, neither of which avenues Mr Kvas\u0146evskis pursued.","21. Mrs P\u013cu\u0161\u010dika and her family were struck off register no. 7 as they no longer qualified for low-income status. The relevant decision (28 September 2009) was amenable for review by a higher authority and subsequently by the administrative courts, neither of which avenues Mrs P\u013cu\u0161\u010dika pursued.","22. Applications by Mr Krilovs \u2019 wife (who is not an applicant in the present case, see Appendix) to be entered in register no. 7 were refused twice \u2013 in 2005 and 2010. No application was lodged against the first of those decisions. In respect of the second, the first-instance administrative court did not proceed with the application ( atst\u0101t bez virz\u012bbas ).","(b) Register no. 4","23. Two of the applicants (Mr \u0160er\u0161\u0146ovs and Mr Vi\u017ei\u010da\u0146ins ) and their families were entered in another register, no. 4, for municipal assistance in relation to buying a place of residence. Register no. 4 was designed to include persons in need of the municipality \u2019 s assistance who were tenants in denationalised buildings and who were to be evicted.","24. Riga City Council granted Mr Vi\u017ei\u010da\u0146ins LVL 25,000 (EUR 35,571.80) to buy another place of residence. He and his family were accordingly struck off both registers (nos. 4 and 7) on 18 March 2009.","25. Riga City Council initially granted Mr \u0160er\u0161\u0146ovs LVL 22,000 (EUR 31,303.18) to buy another place of residence. However, it was never disbursed as the relevant municipal regulations changed. Mr \u0160er\u0161\u0146ovs was no longer entitled to receive municipal assistance as he had had property which he had sold. However, his wife and daughter (who are not applicants in the present case, see Appendix) received LVL 16,000 (EUR 22,765.95). The corresponding decision by a higher authority (16 March 2011) was amenable for judicial review by the administrative courts, but they did not pursue it.","(c) No applications for municipal assistance","26. The remaining applicants (Mr Kazak\u0113vi\u010ds, Mr Krilovs and Mrs Dro\u017e\u017eina ) did not apply to receive municipal assistance.","6. Civil proceedings against various authorities","27. Since 2005 the applicants have initiated at least three separate sets of civil proceedings against Riga City Council, its appropriate territorial executive board ( R\u012bgas Latgales priek\u0161pils\u0113tas izpilddirekcija ) and the State, represented by the Cabinet of Ministers ( Ministru kabinets ).","(a) First claim","28. The first claim was vaguely formulated and included, among other things, a request to find a violation of their \u201ceconomic and human rights\u201d and to allocate them State or municipal apartments. On 9 June 2005 a judge did not proceed with this claim ( atst\u0101t bez izskat\u012b\u0161anas ) on the grounds that the plea in law ( pras\u012bbas pamats ) and the amount of the claim ( pras\u012bbas summa ) had not been specified and the State duty had not been paid. The judge requested that the applicants supplement their claim before 29 June 2005. The applicants did not pursue this claim any further.","(b) Second claim","29. The second claim was, in essence, about a unilateral breach of lease contrary to the Civil Law and the Constitution, and the allocation of State or municipal apartments. This claim was examined by both the city court and the regional court. On 20 March 2006 a judge decided that the claim concerning the breach of lease was not amenable to examination by a (civil) court, and that the claim concerning the allocation of apartments was not sufficiently clear and needed to be supplemented (to indicate whether each of the applicants had requested two apartments or just one for privatisation). On 17 May 2006 the Riga Regional Court ( R\u012bgas apgabaltiesa ) upheld that ruling and set a time-limit of 19 June 2006 for the applicants to supplement their claim. Having consulted a lawyer, the applicants decided not to pursue this claim any further.","(c) Third claim","30. The third claim was brought on 13 November 2006 against the State, represented by the Cabinet of Ministers, and against Riga City Council. The applicants requested a court to compel Riga City Council to allocate and transfer ownership to apartments of the same standard or, alternatively, to reimburse them their full current market value. They invoked the general provisions concerning the duty to comply with contractual obligations. They also requested exemption from the payment of State duty and asked the court to \u201cdetermine the level of liability of each respondent\u201d and award compensation for pecuniary and non-pecuniary damage in the amount of LVL 1,000,000 (EUR 1,422,871.81) to each of the applicants.","31. On 20 November 2006 the Riga Regional Court refused to accept the applicants \u2019 claim on the grounds that the case did not fall within its jurisdiction. The regional court held that there was no civil dispute between the parties since the applicants \u2019 claim related to specific public legal relations ( publiski tiesiskas attiec\u012bbas ) between individuals and the State and was thus amenable to examination by the first-instance administrative court in accordance with the Administrative Procedure Law. The applicants appealed on the grounds that they did not wish to dispute specific administrative acts; they insisted that there was a civil dispute.","32. On 5 February 2007 the Civil Chamber of the Supreme Court ( Augst\u0101k\u0101s tiesas Civillietu tiesu pal\u0101ta ) quashed the regional court \u2019 s decision and issued a new ruling. It refused to accept the applicants \u2019 claim on the grounds that the dispute was not amenable to examination by a (civil) court. The Supreme Court held that the applicants had been assigned their rental apartments in accordance with an agreement of 1988. Being tenants in denationalised buildings, they were subject to a special law regarding assistance on matters relating to apartments and could exercise their rights in accordance with that law. Any disputes arising in connection therewith had to be examined in administrative proceedings before the relevant municipal bodies of Riga City Council; no such administrative proceedings had been instituted and no administrative acts (which would be amenable to judicial review) had been effected in respect of the applicants. A mere reference to legal provisions concerning contractual obligations could not make the claim judiciable. In essence, the Supreme Court concluded that the applicants \u2019 claim lacked any grounds.","33. On 1 March 2007 the Senate of the Supreme Court ( Augst\u0101k\u0101s tiesas Sen\u0101ts ) upheld that ruling. In order to enjoy the right to court, individuals had to follow a prescribed procedure in order to defend their interests. The applicants \u2019 reference to the civil-law provisions was held to be of no relevance; the dispute was not amenable to examination in court.","7. Administrative proceedings against Riga City Council","34. On 4 September 2006 the applicants brought a claim in the Administrative District Court ( Administrat\u012bv\u0101 rajona tiesa ) against Riga City Council. They argued that the municipality \u2019 s action in dealing with certain letters had been unlawful ( prettiesiska faktisk\u0101 r\u012bc\u012bba ) and claimed compensation. On 19 February 2007 they supplemented the claim and asked the court to compel Riga City Council to reply to their letters and to compensate them for the damage sustained.","35. On 18 February 2008 a judge heard their case. During the hearing the applicants argued that their claim was in essence about the fulfilment of a contractual obligation incumbent on the State, namely the obligation to allocate State or municipal apartments to the applicants in return for their work on the renovation of the building located at 4 J\u0113kabpils Street. The applicants confirmed that they did not wish to receive assistance on matters relating to apartments in accordance with the special law ( see paragraph 37 below ). The judge concluded that the claim was not amenable to examination in administrative proceedings and thus, on 16 June 2008, the proceedings were terminated ( izbeigta tiesved\u012bba ). The applicants \u2019 claim regarding the fulfilment of a contractual obligation could not be examined in administrative proceedings. The decision became final on 15 September 2008. The applicants noted their agreement with the decision, insisting that only a civil court was competent to examine this claim.","B. Relevant domestic law and practice","1. Property reform-related laws and residential tenancies","36. The relevant laws have been summarised in the above-mentioned decision in Liep\u0101jnieks (cited above, \u00a7\u00a7 25-33). The same decision contains extracts from the Constitutional Court \u2019 s judgment of 16 March 2006 in case no. 2005-16-1, whereby the statutory rent limits were declared unconstitutional and abolished with effect from 1 January 2007 (ibid., \u00a7 35).","2. Municipal assistance","37. The relevant provisions of domestic law ( likums \u201c Par pal\u012bdz\u012bbu dz\u012bvok\u013ca jaut\u0101jumu risin\u0101\u0161an\u0101 \u201d), which took effect on 1 January 2002, have been summarised in the Court \u2019 s decision in the case of \u0145ikitina v. Latvia (cited above, \u00a7 34).","38. Riga City Council, the biggest municipality in Latvia, has adopted several regulations on these issues, which were summarised in the same decision (ibid., \u00a7\u00a7 35-37)."],"103":["6.The applicant was born in 1935 and lived in Kalvarija. She died on 8April 2017.","7.In December 1993 a large sum of money disappeared from A.G.\u2019s mother\u2019s home in the town of Kalvarija. A.G. suspected the applicant\u2019s son R.A., and R.A.\u2019s friend, Z.V., of having stolen the money.","8.As later established by the Court of Appeal (see paragraph 40 below), on 19April 1994 A.G., acting with accomplices, forced R.A. and Z.V. into a car and drove them to a forest in Kalvarija. R.A. and Z.V. were tied to a tree, interrogated, beaten, put in a hole in the ground and, when they tried to escape, shot, stabbed and thus killed. Both victims were then buried in the forest in an attempt to hide the evidence. Their bodies were never found.","9.On 8 July 1994 the applicant\u2019s daughter reported to the police that her brother R.A. had disappeared.Having examined the material indicating that on 19April 1994 R.A. had been placed in a car and had not returned, on 29August 1994 the police opened a criminal investigation into charges of unlawful deprivation of liberty.","10.In autumn 1994 the authorities started connecting A.G. to the disappearance of the applicant\u2019s son and Z.V. On 25October 1994 A.G. was arrested and placed in pre-trial detention. However, as later established by court decisions, when in October 1994 two witnesses gave false testimony that they had seen the two missing persons \u2013 R.A. and Z.V. \u2013 alive in Klaip\u0117da, on 4November 1994 A.G. was released from pre\u2011trial detention.","11.The criminal investigation into the charges of unlawful deprivation of liberty continued. The authorities questioned a number of witnesses, including A.G., who had also been questioned as a suspect earlier. In order to eliminate contradictions between the witnesses\u2019 testimony, the authorities conducted several formal confrontations (akistata). As noted by the Government, several forensic expert examinations were performed with regard to the seized vehicle allegedly used in the kidnapping, but no traces of blood were found in that vehicle.","12.On 29November 1994 the pre-trial investigator took the decision to suspend the criminal proceedings, because R.A. and Z.V. could not be located and there were no objective grounds for establishing who was responsible for their disappearance. The police were instructed to continue searching for R.A. and Z.V., as well as for those who were responsible for their disappearance.","According to the Government, the applicant did not appeal against that decision.","13.The Government also stated that afterwards R.A. had been considered a missing person (ding\u0119s be \u017einios). In order to find him, the authorities had entered information into the relevant registers and databases. Various police records had been inspected. R.A. had been sought in medical establishments. Information with regard to unidentified corpses had been checked in order to look for similarities. The media had also been employed to ask the general public for assistance. The search had been closed on 26May 2004 because of the expiry of the statutory limitation period. Before closing the search, R.A.\u2019s relatives had been questioned once again, and the matter of whether R.A. had crossed the Lithuanian border had been verified.","14.According to the Government, within the context of another criminal case instituted in April 2004 regarding an attempt to murder A.G., information was received that A.G. could have been involved in R.A.\u2019s and Z.V.\u2019s disappearance. According to the documents before the Court, in June2004 the Prosecutor General office asked the Criminal Police Bureau to continue investigating the disappearance.","15.On 24 January 2005 the Criminal Police Bureau found that A.G., acting together with G.S. and G.M., had killed R.A. and Z.V. (see paragraph8 above). The Criminal Police Bureau thus opened a criminal investigation into the murder of two persons. It appears that the evidence against A.G. consisted of witness testimony, including the testimony of two witnesses who agreed to testify on the condition that they could do so anonymously, as well as the secret surveillance of another witness who had misled the investigators in 1994 (see paragraph 10 above).","16.On 13 June 2005 the police wished to question A.G., but he could not be found either at his home or at his place of work. Two days later, on 15June 2005 the authorities issued a decision to charge A.G. with the murder of two persons. The following day an operative search (operatyvin\u0117 paie\u0161ka) in respect of A.G. was announced. By 24June 2005 the authorities obtained information that A.G. was already abroad, possibly in Latvia, and planned to travel to either the United States of America or Kazakhstan. On 30June 2005 a court authorised A.G.\u2019s detention, in the event that he was found.","17.On 18 July 2005 a prosecutor specified (patikslino) charges against A.G. and charged him with the aggravated murder of two persons (compare paragraph 11 above). Noting that the operative search which had been announced earlier had not brought about any results, the prosecutor announced a national and international search in respect of A.G. (vietin\u0117 ir tarptautin\u0117 paie\u0161ka). On 16August 2005 the Prosecutor General\u2019s Office issued a European arrest warrant in respect of A.G.","18.In December 2005 the Criminal Police Bureau obtained information that A.G. could be in Kazakhstan, and it noted that it intended to contact the Kazakhstan authorities in order to establish A.G.\u2019s exact whereabouts and to seek his arrest and extradition to Lithuania.","19.A.G was arrested on 17March 2006, when he came to the Prosecutor General\u2019s Office in Vilnius. He was questioned as a suspect in R.A.\u2019s and Z.V.\u2019s murder. He denied any involvement. By that time, the authorities had questioned a number of witnesses, performed searches, sent a legal aid request to Latvia, asked for information from the Lithuanian embassy in the United States of America, and also had agents travel to Ukraine, where one of A.G.\u2019s accomplices had been apprehended. The documents before the Court also show that between June 2005 and March2007 the Criminal Police Bureau investigator repeatedly questioned the suspects and organised formal confrontations between them, so that any inconsistent testimony would be clarified.","20.In response to a request by the applicant of 12June 2006, on 19September 2006 a prosecutor granted her civil claimant (civilinis ie\u0161kovas) status in the case regarding her son\u2019s murder.","21.The applicant\u2019s daughter had been granted the status of a victim (nukent\u0117jusioji) on 12June 2006. For her part, on 19September 2006 the applicant was recognised as a victim in the criminal case regarding her son\u2019s murder.","22.In September 2006 the prosecutor also imposed a restriction on A.G.\u2019s real property.","23.From 17 March to 22 November 2006 A.G. was again detained pending trial, including by a ruling of the Vilnius Regional Court of 20October 2006. The applicant appealed against that ruling.","24.As later established by a court decision (see paragraph 40 below), whilst being detained, on 22March 2006 A.G. had attempted to offer a bribe of 20,000 Lithuanian litai (LTL, approximately 5,800euros (EUR)) to the Criminal Police Bureau investigator, in an attempt to persuade the latter not to actively pursue leads in the criminal murder case, so that the remand measure which had been imposed on him\u2013pre-trial detention\u2013could be replaced with a less stringent one.","25.On 22 November 2006 the Court of Appeal ordered A.G.\u2019s release from pre-trial detention. Whilst acknowledging that, at that stage, it was not pronouncing judgment on the question of A.G.\u2019s guilt, the appellate court nevertheless noted that the evidence corroborating his guilt on the charges of murder was very scarce to support his detention pending trial. In particular, although the victims had allegedly been killed as early as 1994, their bodies had still not been found, and A.G. had been charged with their murder only in 2005. The Court of Appeal also pointed out that there was no evidence that A.G. could hide from the investigation, although these had been the grounds relied on by the prosecutor in support of A.G.\u2019s detention. On the contrary, the case material showed that, when summoned in March2006, A.G. had attended the Prosecutor General\u2019s Office. His wife had also later taken his passport to the prosecutor, which, according to the Court of Appeal, showed that he had not been hiding that document. Moreover, between June 2005 and February2006\u2013the period which the prosecutor referred to as the period when A.G. had been hiding from the authorities\u2013in reality, A.G. had been working in Lithuania and receiving a salary. Similarly, although the prosecutor claimed that in the summer of 2005 A.G. had been recognised as a suspect and a national and international search in respect of him had been announced, in reality, the police had not been actively searching for A.G. This was because, during the relevant time, A.G. had taken part in an unrelated court hearing in Lithuania and had also crossed the Lithuanian State border a number of times. It was very plausible that A.G. had not even known that he was being sought by the authorities. For the Court of Appeal, there were also no grounds to hold that A.G. could hide from the authorities abroad, because he had not done so, in spite of his numerous trips to foreign countries.","26.The Court of Appeal acknowledged that the case was particularly complex and the case file was voluminous, given that the case involved more than one suspect, numerous witnesses had been questioned, and many forensic examinations, including DNA, had had to be performed. Even so, the appellate court pointed to the inconsistency in relation to the arguments for A.G.\u2019s detention. In particular, in October 2006 and in a co-accused\u2019s case, the prosecutor had asserted that all necessary actions in the criminal investigation had already been performed, and that therefore it was unlikely that that co-accused would hide from the authorities and there were no grounds for his pre-trial detention. However, in A.G.\u2019s case, in October2006 the Vilnius Regional Court had extended A.G.\u2019s detention, considering that many investigative actions had yet to be performed. For the Court of Appeal, this meant that, with regard to the collection of evidence, double standards had been applied to the two co-accused in the case, which raised doubts as to the objectivity of the criminal investigation. The Court of Appeal also considered that such actions could be seen as discrimination under the European Convention on Human Rights. Furthermore, as was apparent from the material presented by A.G.\u2019s lawyer, a DNA examination had already been performed in the case. This fact had also been acknowledged by the prosecutor, who had also confirmed that all the main investigative actions had already been completed. The Court of Appeal thus considered that continuing A.G.\u2019s detention would be unnecessary, and would risk breaching Article 5 of the Convention.","27.The Court of Appeal lastly observed that A.G. had no prior convictions, and had a family, two minor daughters, a permanent place of residence, and a job. Accordingly, a less stringent remand measure could be imposed on him, and it was for the prosecutor to choose what that measure would be, given that the court could not choose another remand measure by itself.","28.On 22November 2006 the prosecutor thus varied the remand measure in respect of A.G. and imposed on him an obligation not to leave his place of residence. A.G. was also ordered to periodically register with the police (\u012fpareigojimas periodi\u0161kai registruotis policijos \u012fstaigoje) every other day, and he had his personal documents\u2013identity card and passport\u2013taken off him.","29.On 1February 2007 the prosecutor discontinued the criminal investigation into the murder charges in respect of A.G.\u2019s co-accused. The prosecutor established that the co-accused had not wanted R.A. and Z.V. to die, and that it had been only A.G. who had exceeded their initial plan (vykdytojo ekscesas) to kidnap R.A. and Z.V. and had murdered them.","30.In August 2007 A.G. asked that the criminal proceedings against him be discontinued on the grounds that pre-trial investigation had been going on too long. However, by a ruling of 28August 2007 the Vilnius City Second District Court dismissed his complaint, noting that even after 22November 2006 the investigators had continued to question suspects and witnesses, performing expert examinations on handwriting and documents, as well as other investigative actions. The court pointed out that the case file was voluminous, that the crime in question had been committed a long time ago, and that certain actions could not be performed because of A.G.\u2019s illness in 2007.","31.In January 2008 the applicant asked the Kaunas Regional Court to hear the criminal case without her being present. She submitted that her health was frail and that she could not face seeing her son\u2019s murderer at the court hearing. She asked the court to rely on her earlier testimony given at the stage of the pre-trial investigation. The Government specified that the applicant had later taken part in one hearing before the trial court.","32.The prosecutor drew up the bill of indictment on 11 October 2007 and transferred the case to the trial court. According to the chronology provided by the Government, afterwards the trial court held eighteen hearings, when witnesses were questioned and evidence was examined.","33.By a judgment of 2 February 2009 the Kaunas Regional Court acquitted A.G. of R.A.\u2019s and Z.V.\u2019s murder and of the attempted bribery of a police investigator. The applicant and her daughter had participated in some of the hearings before the trial court.","The trial court ordered that the remand measures imposed on A.G.\u2013the obligation not to leave his place of residence, the taking away his identity documents (passport and ID card), and the order to periodically register with the police\u2013should be lifted and his identity documents returned. The trial court also rejected civil claims by the applicant and I.V. (the mother of the other person who had been killed).","Lastly, the trial court lifted the restrictions on A.G.\u2019s real property (see paragraph 22 above).","34.It transpires from the documents before the Court that A.G.\u2019s identity documents were returned to him on 17 February 2009, after he requested this.","35.Both the prosecutor and the applicant\u2019s daughter appealed against the trial court\u2019s judgment acquitting A.G.","36.On 15 December 2010 the Court of Appeal upheld A.G.\u2019s acquittal in relation to the charges of murder and attempted bribery of a police investigator, and left the civil claims by the applicant and I.V. unexamined.","37.The prosecutor lodged an appeal on points of law, and by a ruling of 5July 2011 the Supreme Court quashed the Court of Appeal decision of 15December 2010 and remitted the case to the appellate court for fresh examination. The Supreme Court took note of the appellate court\u2019s conclusion that the case was a complex one because it involved criminal charges for a serious crime that had been committed many years previously. It also found that, although the appellate court had examined the evidence by questioning not only some of those witnesses who had already been questioned before the first-instance court, but also some newly summoned witnesses, it had nevertheless failed to rule on some other evidence and had not questioned an anonymous witness, even though earlier the appellate court had considered that witness\u2019s testimony pertinent to the case. Furthermore, the appellate court had not answered all the questions regarding the evaluation of evidence which had been raised in the appeal against the first-instance court\u2019s judgment.","38.Once the case was returned to the Court of Appeal, the latter completed the examination of the merits of the case during the hearing of 12October 2012, announcing that the judgment be pronounced on 27November 2012 (see paragraph 40 below).","39.It transpires that no remand measure was imposed on A.G. during the examination of the case by the Supreme Court and by the Court of Appeal.","40.On 27 November 2012 the Court of Appeal reversed the Kaunas Regional Court\u2019s judgment of 2 February 2009, and on the basis of all the evidence found A.G. guilty of the aggravated murder of two persons\u2013R.A. and Z.V.\u2013under Article 105 \u00a7 2 (2 and 5) of the old Criminal Code (see paragraph 49 below). The Court of Appeal established that that crime had been committed against persons in a particularly vulnerable situation (bej\u0117gi\u0161kos b\u016bkl\u0117s), since both R.A. and Z.V. had been shot after they had been beaten and placed in a hole in the ground with their hands tied, which was an aggravating circumstance. The Court of Appeal also found A.G. guilty of the attempted bribery of a pre-trial investigation officer, under Article 227 \u00a7 2 of the new Criminal Code (see paragraphs 24 above and 50 below). A.G. was sentenced to fourteen years\u2019 imprisonment, to be served in a correctional home (pataisos namuose). The time which he had already spent in pre-trial detention\u2013from 25October 1994 to 4November 1994 and from 17March 2006 to 22November 2006\u2013was to count as time served in relation to that sentence. The Court of Appeal noted that A.G. had no prior convictions; he worked, was married and had four children. Moreover, the criminal proceedings had lasted rather a long time, which was a reason to impose a less severe punishment than the maximum sentence of life imprisonment.","41.By the same judgment, the Court of Appeal also awarded the applicant and I.V. (the mother of the other murdered person), LTL150,000 (approximately EUR 43,500) each, as compensation for non-pecuniary damage in respect of the loss of their sons.","42.According to the Government, on 6December 2012 the Kaunas Regional Court sent the judgment convicting A.G. to the Marijampol\u0117 police, so that it could be executed.","43.As the documents before the Court show, on 11 December 2012 the police established that A.G. had absconded to avoid serving his sentence. The same day, the police announced a national and international search in respect of him. The Government provided the Court with a copy of an authorisation, confirmed by a notary, which A.G. had signed on 28November 2012 in the Smolensk Region in the Russian Federation, empowering his wife to represent his interests before the Lithuanian institutions. The Government specified that in November 2013 A.G.\u2019s wife had presented that authorisation to a court in Lithuania when she had asked to familiarise herself with the applicant\u2019s criminal file.","44.On 26 February 2013 the Lithuanian authorities issued a European arrest warrant in respect of A.G. The authorities noted, inter alia, that A.G. had been physically present when the Kaunas Regional Court had acquitted him on 2February 2009, when the Court of Appeal had delivered a ruling on 15December 2010, when the Supreme Court had issued a ruling on 5July 2011, and when the Court of Appeal had heard his case afterwards. He had also been physically present on 12 October 2012, when the hearing on the merits had been completed and the appellate court had adjourned pronouncement of the judgment. It had been A.G.\u2019s lawyer who had been physically present when the Court of Appeal had pronounced the judgment of 27 November 2012.","45.On 6 December 2012 the Kaunas Regional Court issued a writ of execution, pursuant to which the applicant and I.V. were to get LTL150,000 each from A.G. On 11 December 2012 the applicant took the writ of execution to the bailiff, who on the following day accepted the execution request and on that same day took a decision to seize A.G.\u2019s property. It transpires from the documents before the Court that in the period April-July 2013 amounts totalling about EUR 400 were recovered to compensate for the execution costs of roughly the same value already paid by the applicant\u2019s daughter. In July 2013 the bailiff decided to suspend the enforcement proceedings until A.G. was found. The applicant was informed about the decision to suspend the enforcement proceedings.","46.The applicant\u2019s daughter appealed against the Court of Appeal\u2019s judgment convicting A.G. (see paragraphs 40 and 41 above), asking for A.G. to be ordered to serve his sentence not in a correctional home, which was an institution with a less stringent regime, but in a prison. She pointed out that A.G. had killed her brother in a particularly cruel way when he had been particularly vulnerable. A.G., for his part, in his appeal on points of law, asked to be acquitted and for the criminal proceedings to be discontinued.","47.By a final ruling of 25June 2013, the Supreme Court dismissed the appeals on points of law by the applicant\u2019s daughter and by A.G. The Supreme Court considered that the punishment imposed on A.G. had been just. At the Supreme Court hearing, A.G.\u2019s wife admitted that her husband was abroad, but refused to disclose his whereabouts.","According to the information provided by the Government in 2017, A.G. had been granted refugee status in the Russian Federation (see also paragraph80 below)."],"104":["5.The applicant was born in 1965 and lives in Ostia Lido.","6.At birth, the applicant was entered in the civil-status registers as male and was given the forename L. However, the applicant stated that she had always identified as female and lived in society as a woman under the forename S. For instance, her work colleagues (the applicant has worked as a civil servant since 1999) had always called her S., and in the photograph on her identity card issued in August 2000 her appearance was that of a woman.","7.In 1999 S.V. began treatment with feminising hormones as part of the gender transition process.","8.On 9 November 2000 she applied to the Rome District Court on the basis of section 3 of Law no. 164 of 1982, stating that she wished to complete the transition process by permanently changing her primary sexual characteristics, and sought authorisation to undergo gender reassignment surgery.","9.In a judgment of 10 May 2001 the District Court found that the applicant had embarked on the gender transition process after careful consideration. Having taken note of her determination the court authorised her to undergo surgery in order to adapt her primary sexual characteristics to match her female gender identity.","10.On 30 May 2001 the applicant, while awaiting the surgery authorised by the District Court, applied to the prefect of Rome for a change of forename under Article 89 of Presidential Decree no. 396 of 2000. She argued that, given that she had been undergoing a gender transition process for several years, and in view of her physical appearance, the fact that her identity papers indicated a male forename was a constant source of humiliation and embarrassment. She also asserted that the waiting period for surgery was approximately four years.","11.In a decision of 4 July 2001 the prefect refused the applicant\u2019s request on the grounds that, under Presidential Decree no. 396 of 2000, a person\u2019s forename had to correspond to his or her gender. In the prefect\u2019s view, in the absence of a final court ruling ordering the change to her legal gender status for the purposes of Law no. 164 of 1982, the applicant\u2019s forename could not be changed.","12.The applicant appealed against that decision to the Lazio Regional Administrative Court and also requested a stay of execution of the prefect\u2019s decision.","13.On 23 July 2001 the applicant underwent mammoplasty. On 6September 2001 she was placed on a waiting list at Trieste University Hospital for surgery to alter her primary sexual characteristics.","14.On 21 February 2002 the Regional Administrative Court refused to grant a stay of execution of the prefect\u2019s decision.","15.On 3 February 2003, while the proceedings before the Regional Administrative Court were still pending on the merits, the applicant underwent an operation to change her sexual characteristics from male to female. She subsequently applied to the Rome District Court, on an unspecified date, for legal recognition of her gender reassignment under section 3 of Law no. 164 of 1982.","16.In a judgment of 10 October 2003 the Rome District Court granted the applicant\u2019s request and ordered the Savona municipal authorities to alter the indication of the applicant\u2019s gender from male to female and to change the forename L. to S.","17.By a judgment of 6 March 2008, deposited with the registry on 17May 2008, the Regional Administrative Court dismissed the applicant\u2019s appeal against the prefect\u2019s decision of 4 July 2001. The court held that Article 89 of Presidential Decree no. 396 of 2000 concerning changes of forename was not applicable in the present case, which actually came within the scope of Law no. 164 of 1982 concerning changes to legal gender status. The court stressed in that regard that, under the terms of the latter, the amendment of the civil-status records of a transgender person had to be ordered by the court ruling on his or her gender reassignment. It therefore considered that the prefect had correctly refused the applicant\u2019s request.","The applicant did not appeal against that judgment."],"105":["5.The applicants were born in 1993, 1992, 1992, 1994, 1993, 1993, 1995, 1993, 1996, 1994 and 1951 respectively and live in Tighina (Bender).","6.The applicants are ten pupils of the Romanian (Moldovan) language boarding school in Tighina (Bender) for orphans and other children taken into public care, and their head teacher and also legal guardian, at the time of lodging the application. Not all the applicants are orphans and some of them had sporadic contacts with their parents. The children studied and lived at the school. During the summer holidays, they either went to summer camps or stayed with the families of the school staff. In 2004 the children spent their summer holidays together with the families of school staff. The applicants\u2019 school was registered with the Moldovan Ministry of Education and was therefore using the Latin script and a curriculum approved by the Ministry of Education of the Republic of Moldova.","7.According to Article 12 of the Constitution of the \u201cMoldovan Republic of Trandniestria\u201d (\u201cMRT\u201d), the official languages within the \u201cMRT\u201d are \u201cMoldavian\u201d, Russian and Ukrainian. Article6 of the \u201cMRT\u201d Law on languages, which was adopted on 8September1992, states that, for all purposes, \u201cMoldavian\u201d must be written with the Cyrillic alphabet. The \u201claw\u201d provides further that use of the Latin alphabet may amount to an offence. In particular Article 200-3 (currently Article 5.28) of the \u201cMRT\u201d Code of Administrative Offences states that:","\u201cFailure by persons holding public office and other persons in the executive and State administration, in public associations, as well as in other organisations, regardless of their legal status and form of ownership, and in other entities, situated on the territory of the MRT, to observe MRT\u2019s legislation on the functioning of languages on the territory of MRT ... entails liability in the form of a fine which may amount to 50 (fifty) minimal salaries.\u201d","8.On 18 August 1994 the \u201cMRT\u201d authorities forbade the use of the Latin script in schools. By a decision of 21 May 1999, the \u201cMRT\u201d ordered that all schools belonging to \u201cforeign States\u201d and functioning on \u201cits\u201d territory had to register with the \u201cMRT\u201d authorities, failing which they would not be recognised and would be deprived of their rights. The registration meant that the schools had to follow the \u201cMRT\u201d school curriculum, use the Cyrillic alphabet and learn history in the interpretation of the MRT authorities.","9.More details about the general background of the facts of the case are described in the Court\u2019s judgment in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370\/04, 8252\/05 and 18454\/06, \u00a7\u00a713\u201142, ECHR 2012 (extracts)).","10.On 4 June 2004 the school administration was informed that the Bender city administration rescinded the utilities contracts because the school had failed to register with \u201cMRT\u201d authorities. However, the school was given a new time-limit, until 27 June 2004, to provide \u201cMRT\u201d authorities with documents in order to obtain such registration.","11.The school administration did not comply with the request and on 27June 2004 the water supply to the school was disconnected.","12.On 30 June 2004 the Bender city administration requested the school to provide, by 1 July 2004, documents certifying its legal status, its entitlement to use the building and utilities as well as its bank account.","13.On 5 July 2004 the school was disconnected from the electricity supply.","14.On 15 July 2004 the Bender city administration issued a decision formally closing the school, because it operated without registration and license.","15.In the evening of 26 July 2004, unidentified persons and around thirty \u201cMRT\u201d militia officers, acting on behalf of the Bender city administration, sealed the school buildings and restricted access to the school area. Russian peacekeeping forces were present but did not intervene. The following day, the children and teachers forcefully re-entered the school dormitory. They were still occupying it when the application was submitted.","16.On 27 July 2004 the school administration sent a fax to the President of the Russian Federation complaining about the acts of the \u201cMRT\u201d authorities which affected 300 children, and about the inaction of Russian peacekeepers on 26July 2004.","17.On 4 August 2004 the school was given a new time-limit, until 15August 2004, to register with the \u201cMRT\u201d authorities, otherwise the children risked being transferred by force to a Transdniestrian boarding school for children with disabilities. On 11 August 2004 the \u201cMRT\u201d authorities suggested to the school administration that children would have been safer if they were transferred to kindergarten no. 10 in Bender where appropriate living conditions would be available.","18.The school was disconnected from all utilities and its administration was denied access to the school kitchen or storehouses. From 27 July to 10August 2004 the Moldovan authorities provided the children with food and water, which was brought to the entrance of the city of Bender, the OSCE mission securing its transportation from there to the school. From 11August 2004 OSCE employees were not allowed to deliver food and water more than once per day.","19.On 21 August 2004 the school administration asked the Russian Embassy in Chi\u0219in\u0103u to intervene in order to remedy the situation of the children deprived of water, electricity and food."],"106":["3.The applicant, who is now deceased, was born in 1937 and lived in Paris.","4.On 23June 2009 the guardianship judge of the District Court of the 15th Administrative District of Paris placed the applicant, who was then seventy-two years of age, under enhanced protective supervision (curatelle renforc\u00e9e) for five years, on an initial request from his adoptive daughter. In order to reach her decision, the judge first of all requested the opinions of Dr M.F. and Dr J\u2011P.B., two specialists, who each drew up a medical certificate, on 25November 2008 and 14March 2009 respectively. She appointed M.-C.M as supervisor (see paragraphs 24 to 34 below for further details on the protective supervision system).","5.The applicant applied to the Paris Regional Court for the lifting of the measure, in the alternative for his placement under ordinary supervision, and in the further alternative for the reduction of the period of supervision to twenty-four months. On 18December 2009 the Paris Regional Court dismissed those requests. It noted that the report drawn up by DrR., a neuropsychiatrist whom the applicant had consulted, had ruled out any form of dementia but had confirmed a slight cognitive impairment and some psychological fragility and vulnerability, rendering a protective measure necessary in view of the extent of the applicant\u2019s personal assets. The court agreed with Dr B. that the applicant had previously considered the management of his real property as a hobby, that he no longer had the physical and mental capacities for performing that task, that it was important that he be relieved of the said task of managing his business interests and tax returns, and that, similarly, he should no longer be allowed to dispose of his property. However, the court considered that the measure could be adjusted on the basis of the cognitive impairment noted, allowing him to hold a bank account and a cash withdrawal card.","6.The applicant requested his supervisor\u2019s authorisation to marry M.S., a friend whom he had known since 1996 and who had become his partner in 2008. The supervisor interviewed M.S. and the applicant, at first separately and then together. They informed her of the importance which they attached to the religious dimension of marriage. On 17December2009 the supervisor refused to authorise the marriage on the grounds that she had only known the applicant for a few months and that she therefore lacked the necessary background to authorise a wedding.","7.By order of 21December 2009, the guardianship judge ordered a social inquiry, and commissioned the D\u00e9partement Union of Family Associations (the \u201cUDAF\u201d) to gather information on the applicant\u2019s living conditions, lifestyle, social status and circle of friends. The applicant appealed to the Paris Court of Appeal against that order.","8.On 21 December 2009 the guardianship judge commissioned a medical opinion, on her own initiative, in order to consolidate her knowledge of the case file with an eye to determining the applicant\u2019s capacity to enter into wedlock.","9.On 18 January 2010 the psychiatrist appointed by the judge drew up a detailed medical certificate concluding that the applicant suffered from intellectual disorders. While noting the applicant\u2019s capacity to consent to marriage, the psychiatrist considered him incapable of dealing with the consequences of his consent in terms of his property and finances. In his report, quoting passages from his interview with the applicant, the psychiatrist gave his personal opinion on the facts of the case, including works carried out by the applicant on his apartment. He also considered that some of the arguments put forward by the applicant in favour of his marriage \u201cbordered on the absurd\u201d, including the fact that his grandmothers had also remarried at an advanced age and that he wanted help in looking after himself and carrying out everyday chores.","10.On 1March 2010 the Paris Court of Appeal declared inadmissible the applicant\u2019s appeal against the order of 21 December 2009. It held that it was in the interests of a vulnerable adult for the guardianship judge to take all the necessary action to ensure his protection, bearing in mind that a person under a supervision order can only get married with the authorisation of the supervisor, or failing that, of the judge, who could order a social inquiry or an inspection by a person of his or her choosing. The court noted that that was precisely the option which had been taken by the guardianship judge in issuing two separate orders for a medical examination and a social inquiry.","11.On 1 June 2010 the UDAF submitted its report. It emphasised that there was a financial stake at the heart of a major family conflict, in which the applicant\u2019s interest and well-being did not seem to be given much consideration. It noted that the applicant\u2019s daughter and M.S. accused each other of being primarily interested in the applicant\u2019s fortune, and that it was unclear whether the latter was being influenced by anyone. The UDAF added that the applicant was deeply affected by the conflict and that he seemed to consider marriage as a way of ensuring that he had someone at his side to assist him and to organise his daily life, and to avoid having to end his life on his own.","12.On 24 June 2010, after hearing the applicant and his daughter, the guardianship judge dismissed the applicant\u2019s request. While noting that no one disputed the latter\u2019s attachment to M.S., it ruled that that was insufficient to justify authorising the planned wedding. Having pointed out that the applicant and M.S. were former alcoholics and that the applicant was apparently still drinking, the judge stated that he \u201cwas therefore only seeking greater safety in marriage in order to prevent a possible break-up and therefore the risk of ending his life alone\u201d. Furthermore, she considered that the lack of clarity as to the financial implications of the marriage was particularly worrying as the applicant was torn between his daughter and M.S., and financial considerations had manifestly led to a serious conflict between the two, quoting the UDAF\u2019s findings on that point. Without pronouncing on the religious dimension mentioned by the applicant, she concluded that the planned marriage as it stood was not in the applicant\u2019s interests. The applicant appealed.","13.By judgment of 6September 2011 the Paris Court of Appeal upheld the guardianship judge\u2019s decision of 24June 2010. It noted that although the applicant had on several occasions expressed the wish to marry M.S., the serious disorders from which he had been suffering for several years had severely affected his judgment, as noted in the medical certificates of 14March 2009 and 18January 2010. Moreover, his anosognosia had prevented him from planning his joint life with his partner, taking account of the financial and legal implications of marriage. Furthermore, while the applicant seemed emotionally attached to his partner, the court noted that since they had been living together the applicant had been managing his affairs in an increasingly unreasonable manner, and his supervisor had not always been able to protect his interests. In particular, the applicant had had work carried out in the family apartment to the tune of 250,000 euros a few months after his wife\u2019s death, and had placed her furniture in storage under somewhat questionable conditions. The court of appeal also noted that a draft handwritten will had been prepared on 14August2009 in M.S.\u2019s favour, observing that according to his lawyer\u2019s submissions, the applicant held assets of some 6,000,000euros and had concluded with his deceased wife a universal community of assets contract. The court of appeal further noted that the applicant\u2019s relations with his daughter, M.D., had seriously deteriorated. The court of appeal concluded that although the inquiries ordered by the guardianship judge had mentioned the applicant\u2019s and M.S.\u2019s mutual affection, the psychopathological turn in his disorders and his failing perception of the realities of his finances were such that he could not give his informed consent to marriage.","14.The applicant appealed on points of law. In that appeal he also put a request for a preliminary ruling (a \u201cQPC\u201d) on the constitutionality of Article 460 (1) of the Civil Code. He submitted that that provision contravened, in particular, the principle of freedom of marriage by making the marriage of a supervisee subject to the supervisor\u2019s authorisation, or failing that, to that of the guardianship judge.","15.By decision of 29 June 2012 (no. 2012-260 QPC), the Constitutional Council, noting that the right to marriage was based on Articles2 and 4 of the 1789 Declaration of the Rights of Man and the Citizen, declared Article 460 (1) of the Civil Code to be in conformity with the Constitution, given that it did not prohibit marriage but rather permitted it with the supervisor\u2019s authorisation, the withholding of which could be brought before a court, which was required to organise adversarial proceedings followed by a reasoned decision, against which an appeal also lay. The court also considered that, having regard to the personal and pecuniary obligations stemming from marriage, the latter was an important civil act with which the said restrictions on freedom of marriage did not interfere disproportionately.","16.On 5December 2012 the Court of Cassation dismissed the applicant\u2019s appeal on points of law. On the one hand, it noted that the Constitutional Council had declared Article 460 (1) of the Civil Code constitutional, and on the other, held that the Paris Court of Appeal had lawfully reasoned its decision by analysing not only the relevant medical certificates but also the other documents on file, thus enabling it to deduce that the applicant was incapable of providing informed consent to his marriage owing both to the psychopathological evolution of his disorders and to his loss of control over the realities of his financial situation.","17.On 15February 2016 counsel for the applicant informed the Court of his client\u2019s death on 4February 2016.","18.On 6 September 2016 he informed the Court of M.S.\u2019s intention to pursue the application. The Registry of the Court invited the Government to present their comments on that development."],"107":["5.The applicant was born in 1970 and lives in Istanbul.","6.On 19 November 2007 the applicant\u2019s sons, Aykut and Aykan, born in 1991 and 1992 respectively, left home in their school uniforms with their rucksacks to go to their secondary school. When they did not return home at the usual time in the evening, their mother called the applicant, who in turn enquired about his sons\u2019 whereabouts from friends and family. When his enquiries did not yield any results, the applicant informed the police that his sons were missing.","7.In his statement taken at the Samand\u0131ra police station on 20November 2007 the applicant told the police that his sons had apparently not gone to school after leaving home the previous day, and that they had left their mobile telephones at home. He also informed the police that they had not had any disagreements or fights which could have prompted their disappearance.","8.On the same day, the police informed the Kartal public prosecutor of the disappearance of the applicant\u2019s sons. The public prosecutor instructed the police to take the statements of those who could have information as to the two children\u2019s whereabouts, and to keep him informed of developments.","9.On 22 November 2007 the police took the applicant\u2019s wife\u2019s statement. She told the police that on the morning in question her sons had left home on foot, whereas they had normally taken a minibus to go to school. She had noticed that Aykan had looked somewhat anxious before leaving home, and that he had forgotten to wear his school tie and socks. She had had no idea where Aykut and Aykan could have gone, and none of their friends, relatives or school teachers had had any information on the two childrens\u2019 whereabouts either. Although her son Aykut had had a mobile telephone, he had left the telephone at home that day. She added that she had no reason to suspect anyone with regard to her children\u2019s disappearance.","10.Based on the information obtained from the applicant and his wife, the police registered Aykut and Aykan as missing persons.","11.Still on 22 November 2007, the Kartal district gendarmerie asked the Kartal public prosecutor\u2019s office to authorise access to Aykut Aka\u2019s mobile phone records for the past six months.","12.On 27 November 2007 the Kartal public prosecutor\u2019s office asked the Turkish Telecommunication Institution to provide a record of the individuals who had called Aykut Aka\u2019s mobile telephone in the past three months, together with their complete identity information and addresses.","13.In the meantime, on 23 November 2007 three fishermen, T.G., K.S. and A.D., had contacted the coast guard as they had spotted a corpse at the bottom of the sea off the Emirgan coast. The male corpse recovered by the divers deployed to the incident site was fully dressed in a school uniform and wearing a rucksack. While removing the rucksack from the body, they noted that the rucksack was filled with heavy stones. The student identity card subsequently discovered in the victim\u2019s pocket suggested that the body was that of the applicant\u2019s son, Aykan Aka. The body was subsequently taken to the morgue of the \u0130stinye State Hospital, where the applicant confirmed the identity of his son.","14.On the same day, a post mortem examination was conducted on the body in the presence of the Kartal public prosecutor. An initial examination revealed no sign of violence on the body. It was decided to transfer the body to the Forensic Medicine Institute for a full autopsy, without which the definite cause of death could not be established.","15.On the same day, officers from the Sar\u0131yer Security Directorate prepared an incident scene report. After reiterating the aforementioned information, the report verified that stones weighing three to four kilograms had been found in the victim\u2019s rucksack.","16.Still on the same day, the police took another statement from the applicant. After reiterating the statement he had made on 20November2007 (see paragraph 7 above), he provided the following additional information.","-On 21 November 2007, two days after their disappearance, his son Aykut\u2019s mobile telephone had rung. When he had picked up the telephone, a woman unknown to him had asked why he had answered that telephone, and then had hung up. When the applicant had called the number back, someone else had answered and hung up, after shouting at him for calling.","-His son Aykut had received a text message in Arabic on the occasion of the bayram[1], one month prior to his disappearance. Following his request, the Samand\u0131ra gendarmerie command had managed to locate the owner of the number from which the message had been sent (M.Y.), but M.Y. had denied any involvement with the message.","-After his sons\u2019 disappearance, the applicant had found a handwritten note by Aykan in their room, which read:","\u201cI, Aykan Aka, will die and become a martyr on December 13th at 2.25 a.m. Place of [death]: Istanbul Samand\u0131ra\/Kavakl\u0131k. I will be waiting for all of you. Words: Aykan Aka Written by: Aykan Aka [and signature]. I am giving my life to his holiness Azrael, this is wonderful\u201d.","17.On 26 November 2007 the police questioned the principal of the secondary school which the applicants\u2019 sons had attended, along with Aykan\u2019s school friends, Y.D. and \u00d6.K. The principal said that Aykut had been talkative and a successful student. Aykan, on the other hand, had not had good marks, and, according to his schoolmates, had not been very sociable. Y.D. stated that he had met Aykan some three months before at the start of the school year. Aykan had been withdrawn, but he had not appeared to have any problems at school or home. He had always studied during the breaks, and had told him to study too so that they could get good marks. He had regularly scribbled notes such as \u201cdoomsday signs\u201d, \u201cdajjal[2]\u201d or \u201cChrist\u201d in his notebook. He had once made a calculation and said that the doomsday would arrive in fifty two years and two hours, and had then said that it would not matter whether they died then or fifty two years later. \u00d6.K.\u2019s statement corroborated Y.D.\u2019s.","18.The applicant requested that an underwater search be carried out along the Emirgan coastline to find his other son Aykut\u2019s body. This was done on 30 November 2007. A body was located at the sea floor some fifty metres from the coast. Just like Aykan, Aykut was also wearing a rucksack filled with heavy stones. His rucksack was also attached to his body by a rope.","19.The incident scene report prepared on the same day noted no signs of violence on Aykut\u2019s body. The post mortem examination conducted subsequently found that the cause of death appeared to be drowning. It was, however, decided to transfer the body to the Forensic Medicine Institute for a full autopsy, without which the definite cause of death could not be established.","20.On 3 December 2007 the Sar\u0131yer public prosecutor\u2019s office requested detailed information on incoming and outgoing calls pertaining to four telephone numbers which had been apparently used by the applicant and his sons in the period between 5 and 30 November 2007.","21.The Turkish Telecommunication Institute informed the Sar\u0131yer public prosecutor\u2019s office in a letter dated 13 December 2007, that the requested information had been compiled. The call records enclosed with that letter were not submitted to the Court. However, a handwritten note on the letter, by an unknown author, indicates that no significant calls were detected in the records.","22.According to a report prepared by the police on 28 December 2007, the CCTV footage from 19 November 2007 of the place where the bodies were recovered did not reveal any information that could shed light on the circumstances of the applicants\u2019 sons\u2019 suspicious deaths.","23.The autopsy reports issued by the Forensic Medicine Institute on 14and 25 January 2008 in regard to Aykan and Aykut respectively noted their cause of death as drowning. The report also indicated that no toxic substances were found in their bodies, nor were any signs of trauma noted.","24.On 1 February 2008 the Sar\u0131yer public prosecutor rendered a decision not to prosecute in connection with the death of Aykan. The decision simply noted that the cause of death had been established as drowning by the Forensic Medicine Institute, and that no evidence of a crime had been found.","25.In a similar decision not to prosecute taken on 15February 2008 with respect to Aykut, the Sar\u0131yer public prosecutor stated that there was no reason to hold anyone accountable for his death.","26.On 1 April 2008 the applicant objected to the decisions delivered by the Sar\u0131yer public prosecutor. He claimed in particular that the public prosecutor had failed to conduct a comprehensive investigation into the incident. He had not fully investigated his sons\u2019 telephone records or CCTV footage that could have revealed information regarding their deaths, nor had he questioned his sons\u2019 close friends. The lack of an effective investigation into the incident had impaired his trust in the justice system, which had compelled him to participate in a live TV show in the hope of gathering information that could shed light on the circumstances of his sons\u2019 deaths. A number of viewers had called the studio with possible information on the incident, yet the public prosecutor\u2019s office had not sought those individuals out with a view to getting official statements. He also made the following allegations.","-On 7 February 2008 five individuals had attempted to kidnap his younger son Volkan, an incident which had been reported to the police.","-On 22 February 2008 three photos of his son Aykan had been left on his doorstep, which had also been reported to the police.","He claimed that all of these factors, when viewed together, showed that his sons\u2019 deaths had not been a simple case of drowning, and that he suspected that they had been killed. He asked the authorities to extend the investigation into the deaths and to question his sons\u2019 friends H.B., Y.A., E.\u0130., F.\u00c7. and E.\u00c7., none of whom had yet been questioned.","27.On 10 June 2008 the Bak\u0131rkoy Assize Court dismissed the applicant\u2019s objection, holding that the Sar\u0131yer public prosecutor\u2019s decisions not to prosecute had complied with the procedure and law."],"108":["7.The applicant was born in 1979.","8.The applicant is the biological mother of four children. Together with her husband, G., a French citizen, she has a son, P., who was born on 13November 2001. In December 2005 he was placed in foster care in Slovenia and has remained there ever since, having only occasional contact with the applicant. The applicant does not attend meetings with the welfare workers and foster parents and does not pay maintenance for him. On 19November 2007 the applicant gave birth to her second child, M. In April 2008 the competent French authorities placed M. in foster care in France and referred the applicant for psychological counselling. M. was later adopted in France and has no contact with the applicant.","9.On 5 January 2010 the applicant gave birth to her third child, A., in the Postojna Maternity Hospital. The hospital informed the Ljubljana Social Work Centre of A.\u2019s birth. The Ljubljana Social Work Centre arranged for the applicant to be transported to and accommodated at her mother\u2019s home. The Cerknica Social Work Centre (\u201cthe Cerknica Centre\u201d) provided the applicant with a nursing service and housekeeping assistance three times a week. The T. Association also helped the applicant care for A. Nonetheless, it was noted that the applicant was unable to take care of A. and often travelled and left A. at home, and that the applicant\u2019s mother could not cope with this. Since December 2010 A. has been living with his father, G., in France.","10.The present application concerns the withdrawal of the applicant\u2019s parental rights in respect of her fourth child, E., who was born on 31December 2010.","A.Factual background to the withdrawal of the applicant\u2019s parental rights in respect of E.","11.On 29 December 2010 the applicant\u2019s mother phoned the Cerknica Centre to inform them that the applicant was returning from France by train and was heading directly to Postojna Maternity Hospital, where she would shortly give birth. On 4 January 2011, after the applicant had given birth to E., the Cerknica Centre\u2019s social workers visited her in the hospital, where the medical staff brought to their attention that the applicant was unable to take care of E. and needed constant supervision and help. Consequently, on 7 January 2011 the applicant\u2019s stay in the hospital was extended until 10January 2011. Following her discharge from the hospital, she went to live with her mother temporarily \u2013 an arrangement which the applicant and her mother agreed upon following an intervention by the Cerknica Centre. The Cerknica Centre provided the applicant with family help at home, a social service which included the participation of the T. Association and the community nursing service, domestic help with household tasks three times a week, and the assistance of a peripatetic worker from the Ljubljana Psychiatric Hospital.","12.On 19 January 2011, via email, the Cerknica Centre asked the Slovenian Consulate in Paris to enquire of G. whether he was willing to take care of E. On 7 February 2011 the consulate replied to the Cerknica Centre that the French social services had talked with G., who had doubts as to whether E. was his daughter and whether he could take care of her. The Cerknica Centre\u2019s records of the phone call show that on 11 February 2011 it tried to telephone G. but was unsuccessful. On 15 February 2011, via email, the Cerknica Centre asked the consulate to enquire of G. whether he was willing to give his consent to E.\u2019s adoption.","13.On 20 January 2011 the peripatetic worker who monitored the applicant at home (see paragraph 11 above) informed the Ljubljana Psychiatric Clinic of his concerns about the applicant\u2019s mental state. The applicant was referred for an emergency examination by a clinical psychologist, which she refused to undertake. In addition, the community nursing centre and the worker helping the applicant with household tasks informed the Cerknica Centre of problems they had noticed in the applicant\u2019s care of the newborn.","14.On 28 January 2011 the social workers talked to the applicant, who, considering E. old enough to travel, explained to them that she was planning to travel to France before 31 January. Subsequently, the team of professionals met at the Cerknica Centre and concluded that E.\u2019s well-being was at serious risk.","15.On 30 January 2011 the applicant travelled to France to see her husband. She left E. with her mother, E.\u2019s grandmother. As the applicant\u2019s mother was not willing to take care of E., on 1February 2011 the Cerknica Centre issued an interim removal order with immediate effect whereby E. was removed from her parents and placed in the Crisis Centre for Children. The Cerknica Centre also filed a criminal complaint against the applicant for abandoning a child, but the criminal proceedings were later discontinued.","16.On 16 February 2011 E. was placed in the care of the Cerknica Centre on the basis of section 201 of the Marriage and Family Relations Act (hereinafter \u201cthe Family Act\u201d \u2013 see paragraph 60 below). On 18 February 2011, by way of an interim care order, the Cerknica Centre placed E. in the care of foster parents, who later adopted her (see paragraph50 below). On 23 March 2011 the Cerknica Centre issued a final removal and care order removing E. from her parents and placing her in foster care. It based its decision on sections 119, 120, 157 and 158(2) of the Family Act (see paragraph 60 below). It does not appear that the applicant attempted to challenge the removal and\/or care order in any way.","17.Following E.\u2019s birth the applicant often changed places and travelled back and forth to France. Her location was not always known to her family or the Cerknica Centre, which tried to reach her, unsuccessfully.","B.The applicant\u2019s illness and treatment","18.The applicant has been diagnosed with paranoid schizophrenia. In October 2009 she was placed in a psychiatric hospital for the first time, in Ljubljana Psychiatric Clinic. Since giving birth to E. she has been placed in a psychiatric hospital several times, including against her will on at least one occasion.","19.In her statement of 10 January 2011 a doctor from the Postojna Maternity Hospital noted that the applicant had been refusing to take medication, and the peripatetic worker from the Ljubljana Psychiatric Clinic said the same in his statement of 20 January 2011 (see paragraph 13 above).","20.The case file indicates that as of 7 January 2011 the applicant was regularly examined by a psychiatrist from the Idrija Psychiatric Hospital, often on a monthly basis.","21.The Cerknica Centre\u2019s records of 9 April 2014 show that the Cerknica Centre offered services including counselling to the applicant, who refused this, arguing that she had already joined a self-help group and had monthly sessions with a psychologist and psychiatric examinations every three months.","22.Dr M., who examined the applicant, stated in his report of 31 March 2014 and at a hearing (see paragraph 41 below) that the applicant\u2019s illness, paranoid schizophrenia, had been in remission for some time and she had been taking her medication regularly. In 2015 the applicant\u2019s condition worsened and she had to be hospitalised twice in that year.","C.The applicant\u2019s contact with E. after the removal order","23.On 15 March 2011 the Cerknica Centre held the first meeting of the Individual Project Team (hereinafter \u201cthe IPT\u201d), which was set up under the Foster Care Execution Act (see paragraph 61 below) to monitor E.\u2019s foster care. Although, as E.\u2019s parent, the applicant was invited to the meeting, she did not attend it because she was travelling. The IPT was composed of social workers, the foster parents and the applicant.","24.The Cerknica Centre\u2019s records of the IPT\u2019s meeting, prepared by a social worker, show that on 6 June 2011 the applicant visited the Cerknica Centre, enquiring about E. for the first time. On 5 July 2011 the first contact session with E. took place. The social worker who was supervising the contact session noted in the report that the applicant\u2019s behaviour during the contact session had been inappropriate for E.\u2019s age, because she had tried to put E., then six months old, on her feet.","25.The Cerknica Centre\u2019s records of the IPT\u2019s meeting show that on 12January 2012 the applicant again asked the Cerknica Centre if she could see E. The second contact session took place on 31 January 2012. The applicant cancelled the next scheduled contact session which was to take place on 28 March 2012 because of her alleged departure to France. On 15May 2012 the third contact session took place. The Cerknica Centre\u2019s records of a phone call with the applicant indicate that on 19 June 2012 the Cerknica Centre contacted her with a view to arranging another contact session, but no agreement was reached as she ended the conversation saying that she was busy. On 2 July 2012 the Cerknica Centre enquired with the applicant as to whether she wanted another contact session to be arranged, but she declined, referring to her poor \u201cstate\u201d. As further noted in the Cerknica Centre\u2019s records, the applicant confirmed that she was aware that the Cerknica Centre would organise another session as soon as possible if she so wished. Following a request by the applicant of 4 July 2012, the fourth contact session took place on 11 July 2012. A social worker from the Kranj Social Work Centre who was supervising the contact session noted in her report that the applicant was tired during the contact session and stopped playing with E. after a couple of minutes. The contact session scheduled for 26 September 2012 was cancelled due to the applicant\u2019s illness.","26.Another thirteen contact sessions between the applicant and E. took place before the end of 2014.They all took place in the presence of the foster parents and the Cerknica Centre\u2019s social worker. According to the records of the IPT meetings, the presence of the foster parents was necessary because of E.\u2019s age and the need to ensure her sense of security, given that she and the applicant did not have a close relationship.","27.The reports of the contact sessions prepared by the social worker supervising them indicate that during most of the sessions the applicant appeared distant and remained largely passive, observing E. without having any interaction with her. Numerous reports of the contact sessions further indicate that during the sessions E. did not approach the applicant on her own initiative. On several occasions she wanted to leave before the end of the contact session and stayed only because the foster parents entertained her. Furthermore, in her reports of the sessions, the social worker noted that the foster parents encouraged E. to establish contact with the applicant and the relatives present at the sessions, and that they were accessible and communicative with respect to the applicant and her questions about E. Following a request made by the applicant at the IPT meeting in February 2014 for help in establishing her relationship with E., the social worker and the foster parents offered her help with regard to future contact sessions and encouraged her to engage more actively in establishing the relationship. It was noted in the reports of the contact sessions of 2 July 2014 and 10September 2014 that the applicant had made efforts to establish a connection with E., which had led to some interaction between them. However, no such interaction had occurred at the last contact session, which had taken place on 26 November 2014.","28.The records of the IPT meetings, which took place every couple of months, show that the contact sessions took place on the dates agreed at the meetings based on the applicant\u2019s requests. The Cerknica Centre, the foster parents and the applicant agreed that the contact sessions would take place gradually because E. did not know the applicant.","29.On 8 January 2014 the applicant asked the Cerknica Centre for contact sessions on a more regular basis. The Cerknica Centre advised her to institute proceedings before the Ljubljana District Court, which was competent to decide on her contact with E. in the absence of the agreement.","30.As requested by the applicant in May 2016, the inspection authorities of the Ministry of Labour, Family, Social Affairs and Equal Opportunities carried out an inspection with a view to determining whether the Cerknica Centre had impeded contact between the applicant and E. Their report and the documents in the file show that on at least on five further occasions the Cerknica Centre informed the applicant that she should institute proceedings before the Ljubljana District Court if she was not satisfied with the existing arrangements. The IPT records also show that at that time the applicant was in contact with her lawyer, with whom she had discussed the possibility of taking the matter to court.","31.According to the report issued by the inspection authorities, the Cerknica Centre had acted in a professional way in arranging the contact sessions, and had good reasons to put the interests of the child first. The inspection report also noted that the Cerknica Centre had insisted on that contact pending a decision by the Constitutional Court, and had on numerous occasions informed the applicant of the judicial remedy she should use if she found the existing contact arrangements unsatisfactory. The report further found that after the Constitutional Court had confirmed the withdrawal of the applicant\u2019s parental rights (see paragraph 48 below), the Cerknica Centre had properly considered that the contact had been forced upon E. and thus was not in her best interests.","32.It would appear that the Cerknica Centre also asked the Human Rights Ombudsman to provide a general opinion on what would be in the child\u2019s best interests in the situation in question \u2013 the withdrawal of parental rights or permanent foster care. On 29 July 2015 the Human Rights Ombudsman replied to the Cerknica Centre, noting that if the child could not be reunited with her family, the next best solution was adoption. They confirmed that foster care should be understood to be a temporary measure and that, as regards a change in contact arrangements, advising the mother to institute court proceedings was the only available option.","33.The records of the Cerknica Centre indicate that on 23 September 2015 the Cerknica Centre enquired of the applicant whether she had taken any steps to change the arrangements by means of court proceedings. According to those records, she answered that she had been too busy with other things.","34.On 15 February 2016 the Cerknica Centre sent the applicant some photos of E.","D.Proceedings relating to divesting the applicant of her parental rights","1.First set of proceedings before the Ljubljana District Court","35.On 7 March 2011 the Cerknica Centre lodged an application with the LjubljanaDistrict Court seeking that the applicant and G. be divested of their parental rights, on the grounds that they had neglected and abandoned E., had not taken care of her basic needs, had repeated the problematic behaviour, and had jeopardised the well-being of the child. In the Cerknica Centre\u2019s opinion, protecting the interests of the child required the withdrawal of the parental rights of both parents.","36.The applicant received legal aid and was represented by legal counsel in the proceedings. She disputed the Cerknica Centre\u2019s arguments in the application of 7 March 2011, and argued that she, as a result of mental illness, was not able to understand the proceedings. She submitted that since E. was safe in foster care there was no urgency to divest her of her parental rights. In her view, the court should wait for her mental health \u2013 which at that point was poor \u2013 to improve before deciding the application. Provided that she received appropriate therapy, she would be capable of taking care of the child, so the withdrawal of her parental rights was not necessary. In addition, the applicant argued that the aim of the proceedings was to give E. up for adoption and preclude her from later seeking to have her parental rights restored.","37.The court appointed an expert psychiatrist, Dr K., who met the applicant for an interview. In his opinion of 16 May 2012 he submitted to the court that the applicant suffered from a disease on the schizophrenia spectrum, but had the capacity to be a party in the proceedings. He noted that the applicant was in remission (the period when a patient does not have positive psychotic symptoms); however, that was a recent development and the remission was still unstable. He further noted that the disease could rapidly turn into its active form. Dr K. also stated that provided the applicant took the prescribed medication regularly, her health condition would not deteriorate; however, if she failed to do so, the deterioration would be inevitable. He attached the opinion of an expert in clinical psychology, J., who had also examined the applicant and found that her attitude toward her health condition was not sufficiently serious and that her sense of reality was deficient. The applicant showed indications of extensive and persecutory delusions, while her emotional state was elated and inappropriate for the situation. Dr K. further explained that, in his opinion, the applicant was not able to take care of the child at that time. Her health condition had not improved to such a degree that she could assume the care and upbringing of a child who was a minor.","38.On 29 November 2012 the Ljubljana District Court issued a decision whereby it divested the applicant and G. of their parental rights in relation to E. on the basis of section 116(1) of the Family Act (see paragraph 60 below). With regard to the applicant\u2019s understanding of the proceedings, the Ljubljana District Court concluded, on the basis of Dr K.\u2019s expert opinion as well as the applicant\u2019s own statements, that she was regularly taking the medication and that she did not lack the capacity to be a party to the proceedings at issue. With respect to G., who had not responded to the Cerknica Centre\u2019s application for the withdrawal of his parental rights and had remained inactive in the court proceedings, the court noted that he had not shown any interest in E. and had clearly demonstrated that he was not going to take care of her. With respect to the applicant, it found that the applicant had abandoned E. and had seriously neglected her parental responsibilities. The court pointed out that the same pattern could be observed as regards the applicant\u2019s attitude towards the other three children.","2.The applicant\u2019s first appeal","39.Following an appeal by the applicant, on 16 April 2013 the KoperHigher Court quashed the first-instance court\u2019s decision in the part relating to the applicant and remitted the case for re-examination. It stressed that the lower court had failed to clarify whether the applicant\u2019s behaviour in question and her attitude towards her illness and treatment was due to the mental illness itself, or was a result of her voluntary actions.","3.Second set of proceedings before the Ljubljana District Court","40.In the new proceedings, the Ljubljana District Court appointed a new expert psychiatrist, Dr M., and obtained the opinion of an expert psychologist, DrP. The court held a hearing and, inter alia, examined the applicant and the two experts.","41.After personally examining the applicant on 23 September 2013, DrM. submitted to the court a written expert opinion confirming that she had a mental disorder on the schizophrenia spectrum and noting that her character appeared to have been affected by the illness. According to DrM., the applicant\u2019s lack of a realistic understanding of her illness, her negative attitude towards treatment, and her abandonment of E. were all the results of her mental illness. Acknowledging that the illness could be controlled and the symptoms managed by medication, as well as noting that the course of the condition depended on each individual, Dr M. stressed that the prognosis for the applicant\u2019s illness was not good, and therefore it was not possible to expect her to be able to take care of E. In particular, it was noted that, notwithstanding the episodes of remission, schizophrenia, like some other mental illnesses, led gradually to a permanent deterioration in a person\u2019s capacities, and such a process would occur despite the applicant\u2019s medical treatment. Dr M. also noted that, in the interview, the applicant herself had openly expressed doubts as to whether she could take care of her daughter on her own.","42.After conducting an interview with the applicant and clinically examining her, Dr P. submitted a written report in which he noted that the applicant suffered from a chronic mental disorder on the schizophrenia spectrum which was incurable but treatable (manageable). In his opinion, deterioration causing the applicant\u2019s unpredictable behaviour was inevitable, and the old behaviour pattern was likely to repeat. According to him, the applicant\u2019s understanding and awareness of the child\u2019s needs had been reduced to an understanding and awareness of her primarily physiological needs. The applicant did not understand the parental role and was unable to see the child as an individual with her own needs and desires. He found that the applicant was properly equipped intellectually, but had emotional problems such as diminished empathy. In his opinion, at that time the applicant was not able to care for or bring up E., and was not a suitable person to do so because she could not be expected to provide a stable environment for the child. He also noted that she had not expressed a wish to have custody of E., but had expressed her desire to have more frequent contact with her. Dr P. found E. lively, communicative and cordial, but restrained in relation to the applicant. The expert concluded that contact with the mother was burdensome and forced upon E. The expert also noted that, when observing the contact session, he had not noticed any emotional connection between the applicant and E.","43.On 3 April 2014 the Ljubljana District Court issued a new decision divesting the applicant of her parental rights in relation to E. on the basis of section 116 of the Family Act (see paragraph 60 below). The court found, on the basis of the new expert opinions (see paragraphs 41 and 42 above), that the applicant had suffered from paranoid schizophrenia for many years before its critical manifestation. It further reasoned that the consequences of the disease in the applicant were a non-critical attitude to the illness, and as a result the applicant was not able to understand her health problems, their seriousness, or the importance of treatment. Equally, her neglectful conduct in relation to E. when she had left her did not reflect the true will and conscious action of the applicant. The court weighed the interests of the child against those of the applicant. It noted that, in the absence of any realistic possibility of the applicant resuming care of the child, it was more appropriate to withdraw her parental rights and provide the child with a substitute family for permanent care and emotional stability. Having regard in particular to the above\u2011mentioned expert opinions, the court concluded that the applicant should be divested of her parental rights. It based the conclusion on the fact that she suffered from paranoid schizophrenia which, though controllable, was incurable, could possibly worsen, and would in any event lead to negative personality changes. The court also had regard to fact that the applicant had four children but all the children were cared for by other foster or adoptive parents, and she had spent only a month with E., whereas E. had spent most of her life with the foster family, in an environment where she could be provided with permanent care and emotional stability, something which could not be provided by her mother.","4.The applicant\u2019s second appeal","44.The applicant appealed, arguing that it was unacceptable to divest her of her parental rights solely because of her mental illness, and that the legislation provided no basis for such an extreme and disproportionate measure. In her opinion, E.\u2019s interests would be sufficiently safeguarded by foster care, which would be a less intrusive measure. Moreover, she argued that her illness was in remission, she was regularly taking medication, and did not present any danger to E. She further argued that the conclusion that contact was not in E.\u2019s interests was unfair. In her view, the first-instance court had not taken into account that she had been doing her best, including by trying to find a job in order to improve her situation.","45.On 21 October 2014 the Koper Higher Court dismissed the applicant\u2019s appeal. It held that the fact that her actions had not been deliberate could not be a crucial factor in a decision under section 116 of the Family Act. The main criterion for a decision was the child\u2019s best interests. The court further found that the reason behind the withdrawal of the applicant\u2019s parental rights was the fact that there was no prospect that the family would ever be reunited. During the remission stage of her illness, the applicant could function in her daily life, but she could not take care of her daughter either at that time or in the future. In this connection, the court found that the applicant lacked empathy, did not understand her parental responsibilities, and had been mostly passive during the contact sessions with E. The court noted that the applicant had not abused her contact rights, but had failed to establish proper communication with E., and consequently a basic parent-child relationship. The court rejected the applicant\u2019s argument that E. should remain in foster care, finding that this was only a temporary measure intended to enable parents to exercise their parental responsibilities pending their children being returned to them. Since reunification of the applicant\u2019s family was not likely to happen, protection of the child\u2019s best interests required a more lasting measure aimed at ensuring permanent care and emotional stability for the child. The court concluded that \u201cwhen balancing the child\u2019s interests against the mother\u2019s rights, it was not possible to give priority to the mother\u2019s interest in maintaining her parental rights\u201d.","46.The applicant subsequently asked the Supreme State Prosecutor to lodge a request for theprotection of legality. On 19 February 2015 the Supreme State Prosecutor informed the applicant that there were no grounds for his intervention in the case.","5.The applicant\u2019s constitutional complaint","47.On 30 January 2015 the applicant lodged a constitutional complaint against the Koper Higher Court\u2019s decision (see paragraph 45 above). She invoked several provisions of the Constitution, as well as Articles 6, 8 and14 of the Convention and Article 1 of Protocol No. 12 to the Convention. She disputed the lower court\u2019s findings concerning the poor quality of the contact she had had with E., and argued that depriving her of her parental rights was unjustified because she had not posed any danger to E., and the court\u2019s preference for adoption over fostering in cases such as hers violated the biological parents\u2019 rights. In her opinion, the lower court\u2019s position implied that people with incurable mental illnesses who presented no danger to their children could not have parental rights just because they were unable to take proper care of their children. She also argued that the concept of proper care had not been defined by any of the lower courts. Furthermore, she pointed out that she wished to maintain contact with E., but had been unable to do so since the Koper Higher Court\u2019s judgment of 21October 2014.","48.On 10 December 2015, by five votes to three, the Constitutional Court dismissed the applicant\u2019s constitutional complaint. It found that the lower court\u2019s arguments relating to the applicant\u2019s permanent inability to take care of E., the absence of a family bond between her and E., her inability to establish a relationship with E. during the contact sessions, and the benefits of providing E. with a substitute family for permanent care and emotional stability, justified the withdrawal of her parental rights in the child\u2019s best interests. In the Constitutional Court\u2019s opinion, when weighing the child\u2019s interests against the mother\u2019s rights, the interests which should prevail were E.\u2019s interests in her permanent and stable care and upbringing. As regards the applicant\u2019s argument concerning discrimination against mentally ill people, the Constitutional Court found that the withdrawal of her parental rights had not been based on the fact that she suffered from mental illness, but on the fact that she had been permanently incapable of taking care of E. and the finding that there was no prospect that the family would ever be reunited. It was for domestic courts to protect the child\u2019s interests in the most appropriate way. In E.\u2019s case, they had decided that this was possible only by ensuring a permanent and stable substitute family environment. Moreover, the Constitutional Court upheld the Koper Higher Court\u2019s finding that section 116 of the Family Act could be applied to the present case despite the applicant lacking intent as regards her actions threatening E. (see paragraph 45 above). It considered that the Koper Higher Court\u2019s interpretation of the scope of the application of section 116 complied with Article 54 (1) of the Constitution, which provided that parents could be divested of their parental responsibility or have that responsibility limited only on the grounds provided for by law in order to protect a child\u2019s interests. In the Constitutional Court\u2019s view, that provision did not imply that the State was to protect the child\u2019s interests only when he or she was threatened by the deliberate actions or omissions of his or her parents. The Constitutional Court\u2019s decision was served on the applicant\u2019s representative on 12 January 2016.","49.Judge D. Jadek Pensa of the Constitutional Court, who voted against the above decision, wrote a dissenting opinion, joined by the other two dissenting judges. She pointed out that the interference in the applicant\u2019s case had been particularly serious, and noted that the right to know one\u2019s parents and have contact with them was an internationally recognised right of a child. In her view, the lower court should explain why E. would be at risk of harm by knowing her mother and having contact with her. She also found it questionable whether the applicant had been given sufficient opportunity to form a bond with E., and argued that the positive obligations imposed on the authorities, including the Cerknica Centre, had been disregarded.","E.Adoption of E.","50.On 16 May 2016 the Cerknica Centre issued a decision on E.\u2019s adoption by her foster parents. On 2 June 2016 the decision became final and the foster care in respect of E. was terminated and in effect replaced by the adoption. The applicant was not a party to those proceedings.","51.In its decision, the Cerknica Centre relied on Article 20 of the Convention on the Rights of the Child and section 141 of the Family Act (see paragraphs 60 and 63 below). It emphasised that foster care was a temporary measure and that a child needed a long-term placement which provided him or her with permanent loving care and intimacy from the same person. The Cerknica Centre found that it had exhausted all possibilities for reunification with the biological family. Furthermore, the Cerknica Centre held that the relationship between E. and her foster parents was strong and safe, indicating that the foster parents would take care of her in a responsible and appropriate manner.","F.Contact proceedings","1.Proceedings before the Koper District Court","52.On 19 May 2016 the applicant initiated court proceedings against two social work centres which had been involved in the contact arrangements in the past and E.\u2019s adoptive parents, seeking the regulation of her contact with E. and an interim decision setting out temporary contact arrangements pending the court proceedings. She requested that contact sessions take place every fortnight for three hours. In her opinion, it was in the child\u2019s interests for her to know her mother. She maintained that contact sessions with E. in the past had been rare, and that she had expressed her wish to have them more often; however, the Cerknica Centre had limited them even further and had suspended them after the Constitutional Court\u2019s decision (see paragraphs 31 and 48 above). The applicant received legal aid and was represented by legal counsel in the proceedings.","53.The Koper District Court appointed an expert in psychiatry and paediatric psychiatry, Dr Z., who, inter alia, carried out a psychiatric examination and an interview with the applicant, and held a paediatric psychiatric interview with E. In her expert opinion, Dr Z. emphasised the applicant\u2019s inability to establish an adequate relation with E. Notably, her findings showed that the applicant was emotionally unresponsive, lacked empathy, had a distorted view of reality, and was not capable of either perceiving the child as an individual or reacting to her needs. In Dr Z.\u2019s opinion, E.\u2019s contact with someone like the applicant, who did not understand and was not able to react to the child, would be unpleasant, painful and burdensome. Since, in the present case, it was the child\u2019s biological mother who did not know how to respond or touch the child, the contact experience could be traumatic for E. Dr Z. also emphasised the relevance of the applicant\u2019s negative attitude towards E.\u2019s adoptive parents, which could be harmful to E. She observed that, in the past, E.\u2019s adoptive parents had encouraged E.\u2019s contact with the applicant and had not acted as her competition. The expert refused to arrange a contact session between the applicant and E., as she believed that that would be contrary to the professional rules of medicine and harmful for E.","54.On 9 August 2016, after holding a hearing, the Koper District Court dismissed the applicant\u2019s application for the regulation of contact (predlog za ureditev stikov) and an interim decision. It firstly observed that E. had been adopted after the contact proceedings had been initiated (see paragraph50 above). Consequently, the social work centres had stopped playing a role in arranging the contact, and the court dismissed the applicant\u2019s application in so far as it was directed against them, without any further examination. Furthermore, the adoption had resulted in a different legal basis which the court had to apply in determining contact between the applicant and E. In particular, since the applicant was no longer considered to be E.\u2019s parent, the relevant provision for the regulation of contact became section 106.a of the Family Act, which regulated a child\u2019s contact with people who were not his or her parents (see paragraph 60 below). The court held that it would allow contact between E. and the applicant if it established on a cumulative basis that E. was personally attached to the applicant, had a family-type relationship with her, and that the contact was in E.\u2019s interests. Therefore, it found the question of responsibility for the quality of contact sessions in the past irrelevant for the purposes of determining the case at hand.","55.In its assessment, the court relied on Dr Z.\u2019s expert opinion (see paragraph 53 above) and the statements of the social worker who had supervised the contact sessions in the past and observed that, during the sessions, the applicant had been largely passive and there had been no proper interaction between her and E. It concluded that there was no personal connection between the applicant and E. Having regard to the nature of the actual relationship between the applicant and E., the applicant\u2019s health situation at that time, her inability to form a relationship that would be beneficial to E., her negative attitude towards the adoptive parents, and the consequences the contact would have for E., the court found that the contact would not be in her interests. As the child\u2019s interests constituted the first and paramount consideration in the case, it dismissed both the application for contact and the application for an interim decision.","2.The applicant\u2019s appeals","56.The applicant appealed, maintaining that the decision not to grant her any contact was disproportionate and based on flawed findings and an erroneous application of the law. She argued that Dr Z.\u2019s expert opinion was incomplete and focused on the observations of contact sessions in 2014. In the applicant\u2019s opinion, Dr Z. had failed to examine the possibility that progress in establishing a relationship with E. could have been made had the Cerknica Centre not arbitrarily suspended the contact more than a year and a half earlier. Furthermore, invoking Article 8 of the Convention, she argued that the first-instance court had not carried out a proportionality test when weighing up the rights of the child and the applicant. It had also failed to assess whether the authorities had done everything to maintain her relationship with E., especially after her parental rights had been withdrawn.","57.On 4 April 2017 the Koper Higher Court dismissed the appeal. It found that the first-instance court had convincingly established in a well-reasoned decision that contact with the applicant was not in E.\u2019s interests because of the applicant\u2019s lack of emotional capacity to establish a relationship with E. and her negative attitude towards the adoptive parents. The Koper Higher Court emphasised that in cases like the one at hand, where the interests of the biological mother, the child and the adoptive family had to be balanced against each other, the interests of the child constituted the main guidance. Since the reintroduction of contact with the applicant would be harmful, even traumatic, for E.\u2019s health and development, the mother\u2019s right to family life had to give way to the child\u2019s right.","58.The applicant lodged an application for leave to appeal on points of law, which was rejected as inadmissible by a decision of the Supreme Court of 8 August 2017. The court held that the decision against which the applicant had lodged an application for leave to appeal had been issued in non-contentious civil proceedings in which an appeal on points of law was inadmissible unless otherwise provided for by law.","59.A request by the applicant for free legal aid for the proceedings before the Constitutional Court had been rejected on the basis that the proceedings had no prospect of success owing to non-exhaustion of domestic remedies. She did not appeal against that decision, nor did she lodge a constitutional complaint."],"109":["5.The applicants were born in 1950 and 1945 and live in \u0130stanbul and Ankara respectively. They are university professors specialising, inter alia, in human rights protection.","A.The facts common to the three applications","1.The applicants\u2019 appointment to the Consultative Council on Human Rights","6.On 5 February 2002 the applicants were appointed as members of the Consultative Council on Human Rights (\u201cthe ConsultativeCouncil\u201d), a public body answerable to the Prime Minister which was set up under Law No. 4643 of 12 April 2001 and is responsible for providing the Government with opinions, recommendations, proposals and reports on the whole range of issues relating to the promotion and protection of human rights.","7.At its first meeting on 26 February 2003 the Consultative Council elected Mr Kabo\u011flu as its chairman. At its second meeting on 9 May 2003 the Consultative Council elected Mr Oran chairman of the Working Group on issues relating to minority and cultural rights.","2.Report on minority and cultural rights","8.On 1 October 2004 the General Assembly of the Consultative Council discussed and adopted a report on minority and cultural rights (\u201cthe report\u201d), presented by the above-mentioned working group. On 22October 2004 the report, as amended by Mr Oran in line with the comments put forward by members of the Consultative Council at the meeting on 1 October 2004, was submitted to the Deputy Prime Minister responsible for Human Rights Affairs. The report first of all dealt with the concept and definition of and the historical background to the protection of minority and cultural rights in worldwide and in Turkey. It then went on to consider issues relating to the protection of minorities in Turkey, relying on the relevant provisions of the Treaty of Lausanne, national legislation and practice and the case-law of the higher courts. According to the report, there were two primary reasons for the problematical situation of minorities in Turkey: a theoretical reason tending to define the supra-identity in terms of \u201crace\u201d (\u0131rk) and religion as Turkish (T\u00fcrk) and not as T\u00fcrkiyeli (\u201ccoming from Turkey\u201d, \u201ccitizen of Turkey\u201d), which resulted in alienating the infra-identities of citizens who do not belong to the Turkish \u201crace\u201d or the Muslim religion; and an historical\/political reason stemming from the paranoia (paranoya) inherited from the dismantling of the country in the recent past, a syndrome referred to in the report as \u201cthe S\u00e8vres syndrome\u201d[1].","9.Having explained that the Governments in the 1920s and 1930s had attempted to create a homogeneous and monocultural nation, the report stated that, having regard to the presence in the country of a patchwork of different cultures and identities, and in the light of global developments as regards the organisation of society up until the 2000s, now was the time to revise the citizenship concept and to adopt, like all the European nations, a multi-identity, multicultural, democratic, liberal and pluralist societal model. It consequently proposed rewriting the Constitution and the relevant legislation from a liberal, pluralist and democratic angle, including the participation of the organised fringes of society; guaranteeing the rights of persons laying claim to different identities and cultures to preserve and develop those identities on the basis of equal citizenship; making central and local administrations more transparent and democratic such as to ensure participation and oversight by the citizens; signing and unreservedly ratifying the international treaties laying down the universal standards of human rights, and in particular the Council of Europe\u2019s Framework Convention for the Protection of National Minorities; and, as regards international treaties, discontinuing the practice of entering reservations or interpretative declarations tending to negate infra-identities in Turkey.","3.Reactions and events following the adoption of the report","10.Following the publication of the report, several articles were published in broadly ultranationalist newspapers disparaging the text and criticising the applicants. Furthermore, a number of political leaders and senior officials criticised the report and its authors. On 26 October 2004, for example, an MP speaking in the National Assembly used, with regard to the authors of the report in question, expressions such as \u201chired boffins\u201d (entel dev\u015firme), \u201cindividuals spitting their venomous saliva\u201d, \u201cpeople in the pay of foreigners\u201d, \u201cpersons who hate the words \u2018Turkishnation\u2019\u201d, \u201ctraitors\u201d, \u201cthose who want to split up the Republic of Turkey\u201d, and \u201cenemy of the Turks\u201d. The Deputy Prime Minister spoke of a \u201cmarginal report by marginal people\u201d, claiming that the authors had drawn it up without informing the Government of its content. The Minister of Justice described the report as \u201csowing intellectual discord\u201d. The Deputy Chief-of-Staff also criticised the report, declaring that the unitary structure of the State was beyond question. Moreover, the Director of Human Rights at the Prime Minister\u2019s Office questioned the validity of the report by alleging that there had been no quorum when it had been adopted by the Assembly of the Consultative Council.","11.On 1 November 2004 Mr Kabo\u011flu, in his capacity as Chairman of the Consultative Council, organised a press conference in order to reply to the criticisms of the report in question. At the beginning of the conference, which was shown on television, an ultranationalist trade unionist, F.Y., who was also a member of the Consultative Council, interrupted the meeting by ripping up a copy of the report in front of MrKabo\u011flu and saying \u201cthis report is fake and unlawful, we will not allow it to be read.\u201d","12.In February 2005 the Prime Minister\u2019s Office informed the applicants and twelve other members of the Consultative Council that their term of office would end on 5 February 2005. The Consultative Council has not been reconvened by the Government since that date.","13.On 14 November 2005 the Ankara public prosecutor brought proceedings against the applicants on charges of incitement to hatred and hostility and denigration of the State judicial organs on account of the content of the report. After criminal proceedings lasting some four years and seven months, the applicants were acquitted on the charge of incitement to hatred and hostility; as regards the charge of denigration of the State judicial organs, since the Justice Minister had not consented to the opening of criminal proceedings \u2013 a legal precondition for that particular offence \u2013 the case was struck off the list.","14.In that context, the applicants received death threats from ultranationalist groups and individuals by mail and email. In view of the threats and at the request of counsel for MrKabo\u011flu, the Istanbul Police Department granted him personal protection as from 2007, which protection has been renewed every year since that date. In January 2007 the Ankara police department decided ex officio to task a police officer with protecting Mr Oran. In January 2013 the measure was converted into one of on-call protection.","B. Application no. 1759\/08: proceedings concerning the articles authored by N.K.Z., B.A. and A.T.","1.Civil proceedings against N.K.Z.","15.On 28 October 2004 the daily newspaper Halka ve Olaylara Terc\u00fcman published an article by N.K.Z. on the subject of the report on minority and cultural rights. In the article, the author stated the following:","\u201cThese people should not be considered asliberal intellectuals. Some of them may be bona fide liberals. But their ringleaders are nothing less than traitors ...; there are no two ways about it: the Turkish nation, the Turkishness of Turkey and the Republic of Turkey are facing all-out treason ...; if [the country\u2019s Turkish majority] begins to growl, shout and roar, the traitors will find no hiding or breathing place ...; you obscurantists (karanl\u0131k\u00e7\u0131lar) who present yourselves as liberal intellectuals ..., you can stick your phoney minorities up your Europe (siz o uydurma az\u0131nl\u0131klar\u0131n\u0131z\u0131 al\u0131n da gidin Avrupa\u2019n\u0131za sokun)! ... I would warn some of [those who are going too far] not to play with fire.\u201d","16.On 31 December 2004 the applicants brought civil proceedings against the author of the article and the newspaper publishers. They claimed compensation for the non-pecuniary damage which they had sustained on account of the insulting and threatening language used by the author of the article against them.","17.By judgment of 25 January 2005 the Ankara Regional Court dismissed the applicants\u2019 claim. The court ruled that the impugned article had not directly targeted the claimants since their names had not been cited, and that it was only to be expected that opinions which had been set out in a scientific report designed to guide government policies, but which had prompted concern about the preservation of Turkey\u2019s unitary structure, should be severely criticised.","18.On 20 April 2006 the applicants appealed on points of law. They submitted that since the author of the article had referred to their report he had obviously been directing his insults and threats at them and not at any unnamed persons. They further argued that the court\u2019s refusal to condemn the impugned article, which, they submitted, had comprised insults and incited to violence against them, had amounted to an infringement of their right to freedom of expression.","19.On 14 June 2007 the Court of Cassation upheld the first-instance judgment on the grounds that it complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. That judgment was served on counsel for the applicants on 10 July 2008.","2.Civil proceedings against B.A.","20.On 27 October 2004 the daily newspaper Yeni\u00e7a\u011f published an article relaying statements made by B.A., the Chairman of the Public Employers\u2019 Union Confederation, Kamu-Sen, concerning the applicants\u2019 report. B.A. had said:","\u201cThis report is a real piece of treachery, and those who wrote it should have it ripped to shreds over their heads. Those who want to see the Turkish nation as a minority in this country will have us to contend with.\u201d","21.On 8 November 2004 the daily newspaper Ortado\u011fu also published B.A.\u2019s statements, including the following:","\u201cThis report is the result of a line of thought that has been put about for years with a view to dividing and separating us ... I would appeal to those responsible, and I swear that the price of the soil is blood, and if need be blood will be shed.\u201d","22.On 7 January 2005 the applicants brought civil proceedings against B.A. They claimed compensation for the non-pecuniary damage which they considered they had sustained on account of the insults and threats against them contained in those two statements.","23.By judgment of 25 July 2006 the Ankara Regional Court dismissed the applicants\u2019 claim on the grounds that their report was the subject of public debate, that in view of their social status they should tolerate criticism, including virulent critiques, and that B.A.\u2019s statements had remained within the bounds of acceptable criticism. The court also considered that the expression \u201cthe price of the soil is blood, and if need be blood will be shed\u201d was a popular saying which meant that people could lay down their lives for their country, rather than being a threat to the applicants. Furthermore, the statement \u201cthose who want to see the Turkish nation as a minority in this country will have us to contend with\u201d was only a criticism of the opinions expressed in the report.","24.The applicants appealed on points of law. They argued that the impugned statements by B.A. had amounted to a clear and concrete call to violence, and had been intended to intimidate them and single them out as targets.","25.On 22 October 2007 the Court of Cassation upheld the first-instance judgment on the grounds that it had complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. That judgment was served on counsel for the applicants on 26 November 2007.","3.Civil proceedings against A.T.","26.On 26 October 2004 A.T. published an article in the daily newspaper Yeni\u00e7a\u011f including the following passages:","\u201cThe rapporteur for the second set of S\u00e8vres negotiations, Prof. Dr Bask\u0131n Oran ...\u201d, \u201cthe treasonous report (ihanet raporu) penned by Bask\u0131n Oran\u201d, \u201cwhen the time is ripe, they will be held to account for having prepared a treasonousreport ...\u201d","27.Another article by A.T., published on 31 October 2004 in the same newspaper, contained the following passage:","\u201c... The report, concerning minority and cultural rights, [was drafted by] twenty-four leftist, separatist, subversive [persons] unhappy about the unity of the country [who deserve] the death penalty ...\u201d","28.On 4 November 2004 the Yeni\u00e7a\u011f newspaper published another article signed by A.T. which included the following sentences:","\u201cF.Y. vehemently protested against \u0130brahim Kabo\u011flu and Bask\u0131n Oran, who had prepared and defended a report which might as well be called the \u2018report on the second set of S\u00e8vres negotiations\u2019\u201d; \u201cthe leaders of the traitor networks say that there are millions of \u00fclk\u00fcc\u00fc [\u2018idealists\u2019, extreme right-wing activists] ...: so all these people are idiots and you are intelligent, is that it? Kabo\u011flu\u2019s and Oran\u2019s bad faith has been revealed on many occasions. Irregularities in the operation of the Consultative Council have been exposed. Why do these gentlemen ignore the protests against the irregularities committed during the preparation of this report, [and why] do they prefer to attack those who exercise their right to tear up this bumph dubbed as a \u2018report\u2019?\u201d","29.In another article published on 5 November 2004 in the same paper, A.T. stated the following:","\u201c... The lickspittles with their report on minorities and cultural rights are threatening the country\u2019s integrity ... \u0130brahim Kabo\u011flu says \u2018Atat\u00fcrk did not say T\u00fcrk, he said T\u00fcrkiyeli\u2019 ... Anyone who goes so far as to hijack the words of Mustafa Kemal shows his bad faith, separatist aims and treachery...\u201d","30.Another article by A.T., published on 6 November 2004 in Yeni\u00e7a\u011f, contained the following statements and expressions:","\u201cWithin the Prime Minister\u2019s office people are working on dismantling Turkey, and when we intervene we are accused of using brute force ...; be careful, twenty-four persons did vote for this report, but they did not sign it. The traitors are emerging when Turkey is weakened. ... The main pro-S\u00e8vres cheerleader, Kabo\u011flu, ... was going to present the report to the public ... No one sees the unlawfulness, the deviousness, the betrayal underlying this case. They condemn as brutal F.Y.\u2019s act of snatching the report from the hands of the pro-S\u00e8vres cheerleader and ripping it up. If someone had kicked and punched the pro-S\u00e8vres leader and his treacherous assistants, that would have been brutality. In my view, if those individuals had been beaten up, people would have been relieved. The S\u00e8vres apologists deserved a good thrashing... No punches were thrown, and yet they consider the ripping up of the bumph as a brutal act ...\u201d","31.On 7 November 2004, A.T. wrote the following in his article published in the same newspaper:","\u201c... No one mentions the fact that the intention had been to publish the treasonous document [clandestinely]. They pay scant attention to the treachery, but on the other hand they consider that in tearing up the report F.Y. had committed a brutal act ... just because they sup from the same dog-bowl as \u0130brahim Kabo\u011flu and Bask\u0131n Oran.\u201d","32.On 31 December 2004 the applicants brought an action for damages against A.T. and the company owning the newspaper having published the impugned articles.","33.By judgment of 25 July 2006, the Ankara Regional Court dismissed the applicants\u2019 claim on the grounds that the statements in the impugned articles fell within the ambit of the provisions protecting their author\u2019s freedom of expression. The court held that insofar as the report in issue contained virulent criticism of the governments of the Republic and dismissed those who objected to their ideas as paranoiacs, the applicants should also tolerate the same kind of criticism, or indeed even more virulent criticism, short of actual violence.","34.The applicants appealed on points of law. They complained that the Regional Court had failed to protect them in the exercise of their freedom of expression and had considered that the insults against them had fallen within the ambit of the legal provisions protecting freedom of expression.","35.By judgment of 12 November 2007 the Court of Cassation upheld the impugned judgment on the grounds that it had complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. In a dissenting opinion, one member of the Court of Cassation considered that A.T.\u2019s articles had overstepped the bounds of the right to criticism as protected under the right to freedom of expression, on the grounds that those articles had comprised insulting expressions explicitly targeting the applicants. The judgment was served on counsel for the applicants on 2 January 2008.","C.Applications nos. 50766\/10 and 50782\/10: proceedings relating to S.K.\u2019s article","36.In an article published in the daily newspaper Ak\u015fam on 27 October 2004, S.K. wrote the following on the subject of the applicants\u2019report:","\u201c... After the European Union\u2019s \u2018never make any progress\u2019 report of 6 October 2004, it was expected, as a \u2018conditioned reflex\u2019, that those in the pay of the wild west (vah\u015fi bat\u0131n\u0131n beslemeleri), almost all of whom are former ... communists, would follow their masters, and even surpass them. The comparison is perfectly apt. Like little dogs rolling over and wagging their tails when their food is served in their dog-bowls or when [they are promised] a bone, they begin their subtle attacks ... Those who pose as the eyes, ears and spleen of the Trojan horse infiltrating our country, the fools and idiots posing as smart alecs ...; in this report on minorities prepared by this insolent, perfidious and pathetic minority, the losers, who would never have dared commit this type of treason before, are clearly targeting the indivisible integrity of the State and the nation ...; some losers who, their whole lives long, have never got rid of their paranoia about Turks ... designate as \u2018S\u00e8vres paranoia\u2019 the watchful and persevering attitude of those who represent the heart, head and intelligence of our nation against the new S\u00e8vres dictates and are attempting to insult them, driven on by their wilfulness; their shared characteristic is apostasy ...; someone has said \u2018he who is not a communist at the age of twenty is an ass, and he who is not a capitalist at the age of thirty is the ass\u2019s son\u2019. Being a libo\u015f [a derogatory word for liberals in Turkey] under the auspices of the [European Union] suits these ex-communist apostates perfectly.","Just look at this assailant (bask\u0131nc\u0131[2] eleman) who drew up this scandalous report on minorities on behalf of the Consultative Council on Human Rights ... This is the treacherous dagger which this man, ... disguised as a scientist, and the minority which he is using, has perfidiously stabbed into the heart of the Republic of Turkey and into the unity and peace of our nation...!","And there is another man whose life depends on the fact of eating and swallowing; the more dogfood he eats, the more applause he attracts ... A miserable spy and apostate. Are his windows flung open not to the world, but to his stomach? Alongside a Statesman, the miniature poodle aspires to the status of a large poodle. Now he constantly growls. Perhaps he thinks [that if he continues to] bark ever more loudly, his western masters will one day make a man of him. Oh the poor little chap! God has made him a dogfood gobbler. Calm down a little, [you might scratch] the Rolex on your front paw. Carry on anyway with your bird-brain dividing, dismantling and growling. In any case we are not forced to listen to you. The most you will manage to do is tug at the backs of a few trouser legs. We have seen lots of crawlers like you, you know, and how many have we stoned? If someone like you, rootless and without a pedigree, can [bark] at people, how unfortunate for you! Oh crack-voiced, short-breathed bootlicker! Go on then! Waste your saliva! What a pity [you are allowed to] talk, what a shame [you are listened to and people are allowed] to listen to you ...\u201d","37.On 7 January 2005 the applicants brought an action for damages for insult and defamation against the author of that article and the company owning the newspaper which had published it.","38.By judgment of 8 June 2006 the Ankara Regional Court upheld the applicants\u2019 claim. Considering that the impugned article overstepped the bounds of admissible criticism and infringed the dignity of the applicants, the court ordered the defendants to pay the latter damages in respect of the non-pecuniary damage sustained.","39.By judgment of 31 January 2008 the Court of Cassation (4th Civil Chamber) quashed the first-instance judgment. It found that the first section of the impugned article had consisted of severe criticism of the attitude of Turkish intellectuals to national issues, that the second section on Bask\u0131n Oran had amounted to a statement of a critical opinion on the report in question, and that the expressions used in the last section had not concerned the applicants. The Court of Cassation consequently considered that the article in question had comprised not any gratuitous attacks on the applicants but a series of acerbic and virulent critiques of their report, and that it had not overstepped the bounds of admissible criticism. In a separate dissenting opinion, one member of the Court of Cassation expressed the view that the first-instance judgment should be confirmed.","40.On 20 November 2008 the Ankara Regional Court decided not to follow the Court of Cassation\u2019s judgment and to uphold the judgment which it had delivered on 8 June 2006.","41.On 3 June 2009 the Plenary Assembly of the Civil Chambers of the Court of Cassation, upholding the arguments put forward in the cassation judgment of 31January 2008, set aside the Ankara Regional Court\u2019s judgment.","42.By judgment of 3 December 2009 the Ankara Regional Court, bound by the judgment of the Plenary Assembly of the Civil Chambers, dismissed the action brought by the applicants. That judgment was served on counsel for the applicants on 28 January 2010."],"110":["8.The applicant was born in 1974. He is currently serving a life sentence in Marche-en-Famenne prison (Belgium).","A.The applicant\u2019s arrest in France","9.The applicant was arrested on 17 December 2007 by the French gendarmerie in a village situated in the French d\u00e9partement of Nord and taken into police custody under a European arrest warrant issued against him on 14 November 2007 by an investigating judge of the Charleroi (Belgium) Court of First Instance, on the basis of a request of 6November 2007 from the Crown Prosecutor attached to that court.","10.The warrant stated that the applicant was wanted for the premeditated murder of his former girlfriend, M.B., committed on 5November 2007. The warrant stated that a witness who was a neighbour of M.B. had formally identified the applicant. It also referred to a risk of reoffending in view of his history of violence.","11.The interview record drawn up by the French gendarmes at the time of the applicant\u2019s arrest on 17 December 2007 indicated that he had waived his right under Article 63-4 of the French Code of Criminal Procedure to consult with a lawyer of his choosing or, failing that, officially assigned counsel.","12.In a judgment of 21 December 2007, the Investigation Division of the Court of Appeal of Douai (France), after acknowledging that the applicant had not renounced his entitlement to the rule of speciality[1], ordered his surrender to the Belgian judicial authorities for the execution of the above\u2011mentioned arrest warrant. The applicant was assisted before the Investigation Division by a lawyer, Ms A., of the Douai Bar.","B.Surrender to Belgian authorities and pre-trial investigation stage","13.Having been surrendered to the Belgian authorities at 10.40 a.m. on 31December 2007, the applicant was interviewed by the criminal investigation police from 11.50 a.m. to 3.55 p.m.","14.As shown by the police interview record, in accordance with Article47bis of the Code of Criminal Procedure (code d\u2019instruction criminelle) (see paragraphs 62-65 below), the applicant was notified that he was entitled to request the verbatim transcription of all the questions put to him and his answers, to request any investigative act or the conducting of any interview, and that his statements could be used in evidence.","15.During that first interview, the applicant explained that he had met M.B. in early 2007 through C.L., his then girlfriend. He admitted that he had been present on 5 November 2007 at the scene of the crime but denied having committed the murder. He claimed that the victim, M.B., had been struck with a hammer by her thirteen-year-old son. He explained that he had intervened and grabbed the hammer from the child, but the latter had continued to hit his mother. The applicant stated that he had left with an axe \u2013 which the police had later found near the scene \u2013 because he was afraid of being accused on account of his criminal record. He explained that he had fled the scene and had been hiding in his car when the emergency services arrived. He stated that he was unaware that the victim was dead.","16.During the interview the applicant was also questioned about a statement made to the police by M.B. on 25 October 2007 according to which the applicant had tried to kill her by running her over. The applicant explained that he had accidentally skidded while driving his car and had probably hit M.B., but denied that his intention had been to kill her as she had alleged.","17.The investigators informed the applicant that they had intercepted a number of text messages that had been sent to relatives of M.B., following her death, from a mobile phone belonging to him. Those messages included one offering condolences for the death of M.B. The applicant denied having sent them himself.","18.The applicant\u2019s detailed statements were taken down by the police in an eight-page record. The record indicated at the very end that following the interview the applicant had read over his statements and had not wished to correct them or add to them.","19.All subsequent records of his statements contained the same indications and were signed by the applicant. Except for the first police interview record, of which a copy was given to him after his examination by the investigating judge later that day, the applicant received his copies immediately after being questioned.","20.Following his interview by the criminal investigation police, the applicant was examined by the investigating judge at the Charleroi Court of First Instance at 4.45 p.m. that day. He confirmed his statements to the investigating judge.","21.On being asked by the investigating judge at the beginning of the examination whether he had chosen a lawyer, the applicant answered in the negative. At the end of the interview record it was stated:","\u201cI (the investigating judge) have notified him that I have informed the deputy to the Chair of the Bar Council, given that, at the current stage of the proceedings, he has not appointed counsel.\u201d","22.Following the investigating judge\u2019s examination, which finished at5.42 p.m., the judge observed that a psychiatrist needed to be called immediately. He formally charged the applicant with the premeditated murder of M.B. An arrest warrant was issued to the applicant on the same day and he was remanded in custody.","23.It is not in dispute that the applicant was not allowed to communicate with a lawyer between the time of his surrender to the Belgian authorities and the end of his period in police custody on 31December 2007. He was only allowed to consult with a lawyer, in accordance with the applicable law, once the decision had been taken by the investigating judge to remand him in custody (see paragraphs 21 above and 55-56 below). Moreover, even though he was subsequently assisted by a lawyer during the judicial pre-trial investigation, that lawyer did not attend the police interviews, examinations by the investigating judge or other investigative acts which took place throughout that phase of the proceedings (see paragraph59 below).","24.On 11 January 2008 the applicant was again interviewed by the criminal investigation police. He confirmed his previous statements about M.B.\u2019s death and provided further particulars about what had happened. The applicant stated that he had indeed seen a person passing by in the street who had witnessed the blows inflicted by the victim\u2019s son, and that this witness had been accompanied by a woman, and he admitted to having threatened the witness with a fake gun that had subsequently been found in his car after his arrest. When the officers pointed out the inconsistencies in his account, the applicant acknowledged that he had been carrying a real gun at the time but continued to deny that he was the murderer.","25.There is no indication in the interview record of 11 January 2008, or elsewhere in the file, that the applicant had actually been assigned a lawyer following the notification to the Bar on 31 December 2007, or that he had been in contact with a lawyer prior to that interview.","26.In parallel to the investigation into the murder of M.B., the applicant was interviewed by the police on four occasions between 6 and 7March 2008 for \u201ccriminal association\u201d in respect of car thefts.","27.When examined again by the investigating judge on 17March 2008, the judge asked the applicant if he had chosen a lawyer. He replied in the affirmative and mentioned that he had been in contact with a lawyer at the Brussels Bar. The applicant was informed that the psychiatric assessment had been received and that it had identified an antisocial personality disorder. When questioned about the facts related to M.B.\u2019s murder, the applicant confessed to having stolen a document from the case file, although the authorities had been unaware of this. Subsequently, having repeated that the perpetrator of M.B.\u2019s murder was her son, the applicant changed his account of the events. He mentioned the presence of C.L. at the scene of the crime at the time when M.B. was attacked. He explained that he had witnessed an argument between the two women and that he had had to wrest a hammer from C.L.\u2019s hands.","28.On 25 March 2008 the criminal investigation police interviewed the applicant for the purposes of a morality and personality assessment. A second police interview was held on the same day concerning bodily harm inflicted on C.L. on 17 September 2007. The applicant acknowledged that he had invited C.L., then pregnant, to get into his car. He stated that he had punched C.L. in the face to \u201cprotect\u201d her from a possible encounter with M.B. that had been planned with the aim of stealing the latter\u2019s mobile phone and bank card. He explained that M.B., with the help of an accomplice, had then pushed C.L. into the canal.","29.A neuropsychological assessment of the applicant was carried out on 28April 2008 and sent to the investigating judge. The expert psychologist concluded that the applicant had limited verbal skills but that his reasoning was not abnormal. The expert also highlighted his significant lack of empathy and sociability.","30.On 6 June 2008 a reconstruction of the events of 5November 2007 was held at the scene of the crime. The two eyewitnesses took part in the reconstruction (see paragraphs 10 and 24 above). The applicant\u2019s lawyer was absent, as the law did not provide for the attendance of a lawyer at any investigative act (see paragraph 59 below). In the context of the reconstruction, the applicant mentioned when interviewed that another person, A.N., had also been at the scene on the day in question. He changed his version of events again and stated that he had falsely accused the victim\u2019s son. He claimed that the fatal blows had in fact been struck by C.L. and that he had fired a gun to intimidate C.L.","31.During the interview conducted on the same day by the criminal investigation police, the applicant challenged the account given by the two eyewitnesses at the reconstruction and confirmed his new version of the facts. There is no evidence in the file that the applicant sought to communicate with his lawyer before or after the reconstruction or the interview of the same day.","32.An arrest warrant was issued on 8 August 2008 extending the investigating judge\u2019s remit, on the basis of the submissions of the Crown Prosecutor dated 23 May 2008 and 7July 2008, to three additional offences: the attempted murder of M.B. on 25October 2007, and two offences committed on 17 September 2007 against C.L., namely robbery with violence or threats, and fraud.","33.The applicant was examined on that subject by the investigating judge on 18 August 2008. The information provided for by Article 47bis of the Code of Criminal Procedure (see paragraph 65 below) was repeated to him; he was also notified of his right to refuse the extension of the charges and to consult with his lawyer on this matter beforehand. The record of the examination shows that he agreed to the extension, thereby renouncing his entitlement to the speciality rule that had been granted by the French authorities (see paragraph 12 above). He also expressed his wish that his lawyer should confirm his position.","34.On 5 December 2008 the applicant was heard by the Crown Prosecutor as to whether he agreed to the extension of the charges. He replied that he wished to consult with his lawyer on this matter.","35.Acknowledging that the applicant had not ultimately given his consent, in a judgment of 13January 2009 the Investigation Division of the Douai Court of Appeal agreed to extend his surrender for the purposes of a criminal prosecution to the three above-mentioned additional charges.","36.At the close of the judicial investigation stage, the applicant was committed to stand trial before the Assize Court of Hainaut Province by a judgment of 31August 2009 of the Indictment Division (chambre des mises en accusation) of the Mons Court of Appeal. The Indictment Division found that there were serious indications of the applicant\u2019s guilt in the light, principally, of the witness statements, the investigators\u2019 findings, the real evidence gathered and the forensic medical and psychiatric assessments.","C.Proceedings in the Assize Court","37.At the start of the trial in the Assize Court, on 1 February 2010, the applicant, assisted by his Belgian counsel, filed a submission in which he requested that the records of the interviews conducted without legal assistance and the ensuing acts should be annulled and that the prosecution case should be declared inadmissible. He argued that his lack of access to a lawyer while in police custody, on 31 December 2007, and during the subsequent interviews and examinations had entailed a breach of an essential formal requirement directly affecting his defence rights and thus irretrievably vitiating the arrest warrant. The applicant complained that the absence of a lawyer had necessarily caused him damage.","38.Referring to the Court\u2019s case-law and in particular the judgments in Salduz v. Turkey ([GC], no. 36391\/02, ECHR 2008) and Dayanan v.Turkey (no. 7377\/03, 13 October 2009), the applicant submitted that it laid down an absolute principle not allowing for any case-specific assessment, given that the restriction arising from Belgian law was one of a general and mandatory nature, and that Belgian law did not meet the requirements of the Convention in such matters.","39.The Assize Court, in an interlocutory judgment of the same day, dismissed the applicant\u2019s plea to dismiss the prosecution case. It began by pointing out that the Court\u2019s case-law did not guarantee, in an absolute manner, the presence of a lawyer at all stages of the criminal proceedings from the first interview onwards and that the Court had emphasised the need to take account of the proceedings as a whole when assessing whether the right to a fair trial had been upheld. It explained that, in principle, defence rights would be irretrievably affected only where incriminating statements were made. The Assize Court further found that courts had no power to substitute their own solutions for those of the legislature in order to make good the shortcomings complained of by the applicant.","40.As to the consequences of the Court\u2019s case-law for the proceedings in the present case, the Assize Court took the view that, in respect of the French part of the proceedings, the applicant had initially waived his right to legal assistance. Later, before the Investigation Division of the Douai Court of Appeal he had been assisted by a lawyer. The Assize Court dismissed his allegation of pressure by the French gendarmes on the grounds that in one of his interviews (namely in the context of the reconstruction of 6 June 2008 referred to in paragraph 30 above) the applicant had given a different explanation as to why he had falsely accused the victim\u2019s son, allegedly under duress, at the time of his arrest.","41.As to the Belgian part of the proceedings, the Assize Court found that the applicant had not incriminated himself in respect of the charges, had not claimed that he had been put under any pressure by the investigators, had not been interviewed in a state of particular vulnerability, had expressed himself freely on the facts and had not in any way been compelled to incriminate himself, even being able to exercise his right to remain silent. The applicant had been able to confer with his lawyer after each police interview and examination by the investigating judge to discuss his defence and had been afforded every opportunity to consult with his lawyer throughout the investigation stage. He had also been able, for the two years of his pre-trial detention, to prepare his defence with his lawyer every time he had appeared before the pre-trial courts (juridictions d\u2019instruction), but he had failed, on those occasions, to mention the omission of which he later complained in the Assize Court.","42.Furthermore, the Assize Court noted that the applicant had been committed to stand trial before it in the light of indications of guilt which stemmed primarily from material other than his own statements (see paragraph 36 above) and that he had availed himself of the right to request the performance of additional investigative acts. After pointing out that the jury\u2019s inner conviction was formed during the oral proceedings before it, the Assize Court concluded that the applicant\u2019s defence rights had been observed and that there was no reason to declare the interview\/examination records or prosecution invalid. It therefore declared the prosecution case admissible and ordered that the proceedings be continued.","43.The bill of indictment drawn up by the Principal Crown Prosecutor on 23 November 2009 was read out at the hearing in the Assize Court. Containing twenty-one pages, it set out the facts and how they had occurred, the investigative acts and their results, and the forensic medical assessments, together with the applicant\u2019s background and family life. The indictment referred to the particulars that had been acknowledged by the applicant (his presence at the scene of M.B.\u2019s murder, the threatening of a witness and the fact that he had been alone with C.L. and had struck her). It also reproduced the various versions of the events that he had given during his police interviews and examinations by the investigating judge, explaining that those accounts were inconsistent with the investigators\u2019 factual findings and were contradicted by the various witness statements.","44.At the close of the trial, on 9 February 2010, the jury found the applicant guilty, principally of the premeditated murder of M.B. on 5November 2007 and of the attempted premeditated murder of C.L. on 17September 2007.","45.The jury\u2019s reasons were set out in the Assize Court\u2019s \u201creasoning judgment\u201d (arr\u00eat de motivation) of the same day. The relevant parts read as follows:","\u201c... the main reasons for the decision given by the jury are as follows:","\u2013 The first and second questions [concerning the murder of M.B. on 5November 2007]","The jury considered decisive the consistent and mutually corroborative testimony of the youngsters who had seen only the defendant and the victim at the scene of the crime, without any other person being present, the threats previously made by the defendant against his victim and the various steps taken by Philippe Beuze (in particular the fact of hiding the axe in a bush) in preparation for the crime.","\u2013 The third and fourth questions [concerning the attempted murder of M.B. on 25October 2007]","[Finding of not guilty]","\u2013 The fifth and sixth questions [concerning the attempted murder of C.L. on 17September 2007]","The jury found that the following evidence proved both the actual occurrence of the acts and the homicidal intention which had driven the defendant:","\u2013 the defendant had deliberately arranged to be alone with a pregnant woman, whom he knew was thus placed in a weakened position;","\u2013 he violently struck C.L., as shown by the medical findings, and left her for dead;","\u2013 he then fled the scene without calling for help, even though he had the means to do so;","\u2013 he subsequently sent text messages clearly showing his intention to kill C.L.","The jury also took the view that the acts committed by the defendant before going off towards the canal at the end of a long walk (simulation of a flat tyre, deliberate car crash, etc.) all constituted evidence of premeditation.\u201d","46.In a sentencing judgment dated 10 February 2010, the Assize Court sentenced the applicant to life imprisonment.","D.Proceedings before the Court of Cassation","47.The applicant lodged an appeal on points of law against the Assize Court judgments of 1, 9 and 10 February 2010. Alleging a violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention, as interpreted in the Court\u2019s case-law, he relied on the right to be assisted by a lawyer and submitted that the presence of a lawyer during questioning was mandatory under the Convention.","48.In a judgment of 26 May 2010 the Court of Cassation dismissed that ground of appeal as follows:","\u201c3.Sections 1, 2, 16(2) and (4), and 20(1) of the Law of 20 July 1990 on pre\u2011trial detention do not provide for the presence of a lawyer to assist the person in police custody during the twenty-four hour period laid down by Article 12, paragraph 3, of the Constitution.","The secrecy imposed by Article 28quinquies, \u00a7 1, first paragraph, and Article57 \u00a71, first paragraph, of the Code of Criminal Procedure precludes, as a rule, the lawyer\u2019s attendance at acts performed during the preliminary investigation by the public prosecutor and the judicial pre-trial investigation.","4.These provisions cannot be said in themselves to violate the right to a fair trial. There are two reasons for this. First, the impugned restriction must be assessed in relation to the full set of legal safeguards made available to the defendant with a view to ensuring the effective protection of his defence rights from the time the prosecution is brought. Secondly, the appellant\u2019s interpretation of Article 6 of the Convention must be examined with reference to the constitutional principle of the legality of criminal proceedings.","5.In the light of the following elements, there can be no automatic finding that it is irretrievably impossible for a person questioned by the police and the investigating judge without a lawyer to have a fair trial: the formal requirements laid down for the questioning of a suspect in Article 47bis of the Code of Criminal Procedure, the brevity of the police custody period, the immediate issuance to the person charged (upon notification of the arrest warrant) of all the documents referred to in sections16(7) and 18(2) of the Law of 20 July 1990, the right of the person charged to communicate immediately with his lawyer in accordance with section 20(1) and (5) of that Law, access to the file as governed by section 21(3) of the Law, the lawyer\u2019s presence at the recapitulatory examination provided for in section 22(1), (2) and(3), and the rights set forth, in particular, in Articles 61ter, 61quater, 61quinquies, 136 and235bis of the Code of Criminal Procedure.","6.As a rule, Article 12, paragraph 2, of the Constitution does not allow the court to amend the formalities of criminal proceedings as laid down by the law of a democratic State. The only exception is where a domestic rule, if declared incompatible, may be set aside without distortion by the court of the legal framework of which it is part.","On account of its lack of precision, the weight that the appellant attaches to a fair trial cannot trump the above-mentioned principle of legality, whereby the investigation, prosecution and trial can only proceed in accordance with pre-existing and accessible statutes. The submission does not determine the extent to which the court should set aside the domestic statute in order to render the trial fair for the purposes of Article 6 of the Convention according to its proposed evolutive interpretation.","Therefore, neither the appellant nor the case-law on which he relies indicate clearly whether the trial would have been fair on the sole condition that the lawyer had been present during the police custody period or whether it would have been necessary to extend that assistance to all investigative acts.","The right to a fair trial also implies that none of the parties should be placed in a more favourable or less advantageous situation than that of another party. It cannot therefore be regarded as established that the proceedings submitted to the court\u2019s review would have been fairer, within the meaning of the appellant\u2019s submission, simply if a lawyer had been present at all his interviews, without an equivalent advantage being secured to the other parties.","7.The submission that the alleged right of the accused is absolute in nature must accordingly be rejected, and it is necessary to consider in concrete terms whether, in the light of the proceedings taken as a whole, the matter complained of by the appellant may have vitiated those proceedings.","This does not appear to have been the case. As can be seen from the following findings of the judgment appealed against [of 1 February 2010]:","(i)the appellant made no self-incriminating statements while in police custody;","(ii)prior to his first interview by the French gendarmerie, he expressly waived the legal assistance to which he was entitled under Article 63-4 of the French Code of Criminal Procedure;","(iii)the appellant was assisted by a lawyer from the time of his appearance before the Investigation Division of the Douai Court of Appeal and for the two years of his pre-trial detention;","(iv)the appellant was at no point compelled to incriminate himself, and at all times expressed himself freely.","The Assize Court therefore acted within the law in refusing to declare the prosecution case inadmissible.\u201d"],"111":["A.Background of the case","4.The first applicant, Ms R.I., was born in 1975 and lives in Bucharest. She was in a stable relationship with R. She had two children with him: the second applicant, M.I., born in 2006, and the third applicant, I.I., born in 2009. In 2010, the relationship broke down and R. moved out of the family home. The parents agreed that the children would remain with the first applicant, in their family home. The parents also decided that R. would have unrestricted access to the children and would play an active role in their education.","5.On 28 October 2013 the children and their maternal grandmother were involved in a traffic accident, as a result of which only the grandmother needed medical care and attention. In November R. took the children from the first applicant\u2019s home without her consent. According to the first applicant, from that time until May 2014, she managed to see the children only occasionally and always in their father\u2019s presence. After 5May 2014 (see paragraph 9 below) contact between them became even more scarce, and after 6 June 2014 (see paragraph 11 below) all contact stopped.","6.On 25 November 2013, the first applicant instituted custody proceedings against R. before the Bucharest District Court (see paragraph26 below). At the same time she applied for an interim injunction (ordonan\u0163\u0103 pre\u015feden\u0163ial\u0103), seeking to have the children\u2019s residence set at her place during the custody proceedings (see paragraph 9 below).","7.On 20 December 2013 the first applicant also brought the situation of the second and third applicants to the attention of the Bucharest Directorate General for Social Welfare and Child Protection (\u201cthe Bucharest child protection authority\u201d). She feared that they were showing signs of emotional abuse caused by their father.","8.In two official reports of 21 January and 5 February 2014, the Bucharest child protection authority observed that the children were well taken care of, were enjoying optimal conditions at their father\u2019s home, and manifested affection towards their father and his new partner. The reports concluded that no signs of abuse had been identified. The experts noted, however, that the children experienced a considerable degree of anxiety and distress because of the conflicts between their biological parents. They recommended counselling.","B.Enforcement of the interim injunction of 5 May 2014","9.Deciding in the interim proceedings (see paragraph 6 above), in a final decision of 5 May 2014 the Bucharest County Court ordered that the children should reside with their mother and that R. should pay monthly child support of 1,000 euros (EUR) for each child until the end of the custody proceedings.","10.On 4 June 2014 the first applicant applied to the bailiff\u2019s office for enforcement of the decision of 5 May 2014. Her request was approved by the bailiff on 6 June 2014 and by the Bucharest District Court on 16June 2014.","11.On 6 June 2014 the first applicant went to the children\u2019s school to pick them up and take them home. R. showed up as well and became abusive towards the first applicant. The police had to intervene. The first applicant was unable to take the children home. Advised by the school administration, she returned on 9 June to pick them up, but on that day the children were absent.","12.On 13 June 2014 the first applicant wrote to the Bucharest child protection authority to ask for help, but the authority could not intervene as the father was not found at home.","13.In a letter of 26 June 2014 the bailiff asked R. to comply with the court order and to return the children to their mother within ten days. As he failed to comply, the bailiff summoned him to bring the children on 17July 2014 to the bailiff\u2019s office, where the first applicant, two police officers and representatives of the Bucharest child protection authority would be present. R. and the children did not attend.","14.On 4 August 2014 the first applicant contacted the Bucharest child protection authority again and complained that R. was manipulating the children into fearing and rejecting her, and was forbidding any contact between her and her children. She also informed the authority about the incident of 6 June 2014 (see paragraph 11 above). The authority could not verify her allegations as R. was not at home and did not contact the authority, despite being invited to do so.","15.The bailiff scheduled a second meeting for 14 August 2014. This time, R. went with the children. As noted by the bailiff in his report drafted on the same day, the children refused in absolute terms to return to their mother. They alleged that she used to shout at them and had occasionally beaten them when they had lived together. The enforcement could not take place.","16.Following the meeting of 14 August 2014, on 9 September 2014 the Bucharest child protection authority asked the Bucharest District Court to order a two-month psychological counselling programme for the children, under the provisions of Article 912 of the Code of Civil Procedure (psychological counselling for children who refuse contact with the estranged parent). The first applicant contacted the child protection authority with a similar request on 16 and 19 September 2014. On 2October 2014 the District Court allowed the request made by the Bucharest child protection authority.","17.Between 7 November 2014 and 2 January 2015, a psychologist met the children and their parents ten times. On 22 January 2015, she drafted a final report, recommending as follows:","\u201cBearing in mind the numerous relationship problems identified, I consider it opportune to recommend an immediate[1] clinical psychological evaluation of the children and the parents, of the current relations between them, as well as their continued psychological counselling.\u201d","18.On 28 January 2015 the first applicant contacted the Bucharest child protection authority again and explained that the behaviour exhibited by the children during their recent encounter made her fear that they were suffering from parent alienation syndrome because of their father\u2019s influence over them.","19.Acting upon the first applicant\u2019s request, a social assistant from the Bucharest child protection authority interviewed the children. On 17February 2015 he drafted his report, finding that the children refused to see their mother because allegedly she used to beat them and be mean to them. The social assistant asked the father to take the children for a psychological evaluation. He also sent his report to the Bucharest child protection authority\u2019s service for violence against children.","20.On 14 May 2015 the Bucharest child protection authority drafted a two-month plan for the rehabilitation of the two children \u201cwith the aim of ensuring their harmonious physical and psychological development and protecting their dignity and their best interests\u201d. The plan required cooperation between the social assistant responsible for their case, a psychologist, the school administration and the two parents.","21.On 30 June 2015 R. complained to the Bucharest child protection authority that the psychologist had put pressure on the children and induced a state of stress which had required the children\u2019s hospitalisation after one of their meetings. He demanded to know on what grounds the children continued to be subjected to psychological counselling.","22.Acting upon an application made by the first applicant (asigurarea probelor), on 7 July 2015 the Bucharest District Court requested a psychological evaluation of the children and their parents. After meeting with them on several occasions between 13 August and 30October 2015, the psychologist rendered a report on 17 November 2015. She found that there was no indication of physical abuse from the mother but that there was an indication of psychological abuse in the form of parental alienation exercised by the father. The relevant parts of the report read as follows:","\u201c(1)During the expert evaluation there was no relevant information from the children that would confirm the existence of physical abuse by their mother. The evaluation only highlighted the children\u2019s and their father\u2019s statements as well as the resistance of both children in relation to their mother.","(2)Because they are involved in the parental conflict, the children exhibit emotional and behavioural indicators frequently associated ... with psychological abuse. ...","(3)There are ... several symptoms of parent alienation syndrome, in particular in respect of [the second applicant]. ...","In particular concerning underage children, the father\u2019s behaviour corresponds to the profile of the \u2018alienator parent\u2019 who behaves in this manner out of a genuine conviction that he can protect and care for the children better than their mother. His behaviour may also be connected to a profound aversion to, and hostility towards, the children\u2019s mother, which has more to do with the relations between the adults than with their parenting abilities.","According to the specialised literature, the alienated parent also plays a role in losing his or her ties with the child. It appears from the information offered during the interview by Mrs [R.I.] that she has experienced occasional doubts and insecurities concerning her maternal role which might have undermined her relationship of secure attachment with her children in their early childhood.","Recommendations","1.It is recommended that the parents undertake psychological counselling, in order to receive assistance in finding methods of cooperation for the present and future well-being of their children. ...","Parents must be aware that parental alienation has negative consequences for the children\u2019s development; without specialised intervention and the conscious participation of both parents, children can develop emotional or behavioural problems.","2.It is recommended that the two children be no longer involved in the conflict between the parents. Their exposure to the parental conflicts has had a traumatising effect on them and left painful marks in their emotional development.\u201d","23.On 23 November 2015, the first applicant asked the bailiff to resume the enforcement proceedings. New meetings were convened for 7and23March 2016 in the bailiff\u2019s office. R. and the children did not appear.","24.On 18 December 2015 the first applicant contacted the Bucharest child protection authority again and reiterated her fears that the children\u2019s father was alienating the children from her.","25.R. contested the enforcement proceedings, but on 9November 2016 the Bucharest District Court dismissed his complaint. An appeal lodged by him was also dismissed in a final decision of the Bucharest County Court on 18September 2017.","C.Enforcement of the custody order of 24 September 2014","26.On 24 September 2014 the Bucharest District Court decided on the application for custody (see paragraph 6 above). It granted the mother physical custody of the children and ordered R. to pay child support of 5,000Romanian lei (RON \u2013 approximately EUR 1,100 at the relevant time) per month until the children reached the age of majority. R. appealed, but on 18 January 2016 he informed the Bucharest County Court that he did not wish to maintain his appeal. The first applicant appealed on points of law, arguing that the County Court had unlawfully reduced the award for costs. In a final decision of 2 June 2016 the Bucharest Court of Appeal rejected her appeal as inadmissible.","27.On 27 July 2016 the first applicant applied for enforcement of the decision of 24 September 2014 on the payment of child support and legal costs. On 19 August 2016 the first applicant asked the bailiff to extend the enforcement order to the return of the children. Her request was granted by the bailiff\u2019s office on 8 September 2016 and by the Constan\u0163a District Court on 20 September 2016.","28.In March 2017 R. informed the authorities that he had moved with the children to N\u0103vodari, Constan\u0163a County, where they would be spending weekends and school holidays. The Constan\u0163a Directorate General for Social Welfare and Child Protection (\u201cthe Constan\u0163a child protection authority\u201d) visited R. and the children in the new location and kept in touch with the Bucharest child protection authority. R. informed the Constan\u0163a child protection authority that he was willing to pursue counselling for his children in N\u0103vodari and reiterated that he had not prohibited the first applicant from seeing the children.","29.On 7 March 2017, the Constanta District Court partially allowed R.\u2019s opposition to the enforcement, finding that he had complied in full with the obligation to provide for the children since they lived with him and that he could not be asked, in addition, to pay child support in their favour.","30.In August 2017 the first applicant reinitiated the enforcement proceedings in respect of the return of the children, but on 12September 2017 R. appealed against the enforcement order. On 19September 2017 R. sought a stay of the enforcement, pending the outcome of his appeal; his request was granted by the Constan\u0163a District Court on 25 September 2017. On 8 May 2018 his appeal was dismissed by a final decision rendered by the Constan\u0163a County Court and the decision was notified to the first applicant on 31 May 2018.","31.On 18 July 2018 the applicants\u2019 representative informed the Court that on 16 July 2018 the applicants and R. had met in the bailiff\u2019s office. The children had refused in absolute terms to move in with their mother.","D.Criminal investigations","32.Meanwhile, the first applicant had lodged a criminal complaint against R., accusing him of disobeying the court order concerning the custody arrangements. On 17 June 2014 the police started investigating the case under the supervision of the prosecutor\u2019s office attached to the Bucharest District Court.","33.On 16 August 2016 the first applicant asked the prosecutor to extend the investigation to also cover allegations of ill-treatment of minors, arguing that R. was subjecting the children to psychological abuse. In a decision of 28June 2016 the prosecutor\u2019s office refused her request on the grounds that no evidence of ill-treatment had been found. On 10 October 2016 an objection lodged by the first applicant was dismissed by the prosecutor\u2011in\u2011chief and on 13 October 2016 the Bucharest District Court\u2019s preliminary chamber rejected as inadmissible a complaint lodged by the first applicant against the prosecutor\u2019s decisions.","E.Attempts to change the custody arrangements","34.On 17 August 2016 R. had applied for physical custody of the children. On 20 March 2017 the Bucharest District Court decided that the children should live with their father. It based its judgment on the fact that the children had been living with him for the past three years and that he represented the only parental figure in their life. A sudden change in their life would cause them more distress. Based on the conclusions of the expert report of 17 November 2015 (see paragraph 22 above), the court noted that the children felt uncomfortable in their mother\u2019s presence and refused to move in with her, preferring their father\u2019s presence. The court also noted that the first applicant had never been prevented from visiting them, but had chosen not to and had instead demanded that the children be returned to Bucharest. The court further observed that the first applicant had not sought enforcement of the custody order, limiting her request to the enforcement of the child-support allowance and costs. It concluded that it would be in the children\u2019s best interests to remain with their father. It advised the parents to put an end to their conflict for their children\u2019s sake and to allow the mother\u2011children relationship to be rebuilt.","35.The first applicant became aware of the content of that decision on receiving the Government\u2019s observations in the case (sent to her by the Registry of the Court on 28 July 2017). At her request, she was notified of the decision on 1 September 2017. On 7 September 2017 she lodged an appeal against it.","36.In a final decision of 24 April 2018 the Bucharest County Court allowed the appeal, quashed the previous decision and dismissed R.\u2019s request to be granted physical custody of the children. It found as follows:","\u201c... the [first applicant] is not at fault in the non-enforcement of decision no.590A\/5May2014, in so far as the Romanian State had a positive obligation to urgently take all necessary legal measures in order to protect the [first applicant]\u2019s right to family life, by immediately returning the children to their mother\u2019s home, in order to avoid the parental alienation exhibited by the children towards the [first applicant].","Therefore, by penalising [the first applicant] with losing the possibility of having her children live with her, for circumstances for which she is not responsible, ... would affect the substance of her right of access to a court and [the right] to respect for her family life. ...","The court notes that the first-instance court\u2019s decision to set the children\u2019s home with their father on the grounds that they were attached to him by strong affection and that they refused to communicate with [the first applicant], is the direct consequence of the non-enforcement of decision no. 590A\/5 May 2014. [R.] had a real possibility to influence the children to see their mother as a stranger, as a danger to the father\u2011children family relationship, and as a danger to their health. ...","The break of the family ties between the mother and her children will without any doubt become permanent if the children are to live with their father, and therefore any visiting programme for the mother and the children will be illusory and formal in so far as the mother was unable to obtain the enforcement of a final decision for more than four years and as during that time she practically could not even speak with the children.\u201d"],"112":["1. The applicant, F.J.M., is a British national who was born in 1970 and lives in Abingdon. She was represented before the Court by Mr J. McNulty, a lawyer practising in Oxford. On 6 November 2018 the Court decided of its own motion not to disclose the applicant \u2019 s identity (Rule 47 \u00a7 4 of the Rules of Court).","A. The circumstances of the case","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","3. The applicant is a vulnerable adult with psychiatric and behavioural problems. According to her treating psychiatrist, she has \u201can emotionally instable personality disorder and at times when her mental state has deteriorated she has presented with frank psychotic symptoms\u201d. She had lost two public sector tenancies on account of her behaviour.","4. In May 2005 the applicant \u2019 s parents purchased a property with the assistance of an eight-year mortgage. They then granted the applicant an assured shorthold tenancy of the property and she claimed housing benefit to pay the rent.","5. The parents fell into arrears on the mortgage repayments and in August 2008 the finance company exercised its powers under the mortgage to appoint receivers. As the rent was being paid regularly and the arrears were not substantial (approximately GBP 527) the receivers initially took no steps to end the tenancy. However, the mortgage arrears persisted and on 13 January 2012 the receivers served notice on the applicant under section 21 of the Housing Act 1988, which permitted a court to make an order for possession of a property let on an assured shorthold tenancy if it was satisfied that the landlord had given the tenant at least two months \u2019 notice in writing that possession was required.","1. The County Court","6. The applicant sought to resist the possession order. As she did not have capacity to conduct legal proceedings, her brother acted as her litigation friend. In addition, she was represented throughout by counsel. On her behalf, two arguments were advanced before the County Court. First, that the receivers were not authorised to issue the section 21 notice (\u201cthe authorisation ground\u201d); and secondly, that a possession order would violate her rights under Article 8 of the Convention (\u201cthe Article 8 ground\u201d).","7. Having found that the receivers were authorised to issue the section 21 notice, the court proceeded to consider \u201cthe more difficult and attractive submissions\u201d in relation to the Article 8 ground. In this regard, a report was advanced in which the applicant \u2019 s treating psychiatrist expressed the view that if evicted she would have real difficulty finding alternative accommodation on account of her mental health history and there was therefore a significant possibility that she would become homeless. Even if alternative accommodation was found, the psychiatrist believed that the stress and upheaval would have a significantly detrimental effect on her mental health, with the possibility of harm to herself or suicide, or violence towards others.","8. Nevertheless, having regard to the case-law of both this Court and the domestic courts, the County Court found no authority for the proposition that a proportionality assessment was required where the claimant was not a public authority. Therefore, \u201cwith regret\u201d, the court saw no reason not to order possession. However, it indicated that, had it decided otherwise, on balance it considered the applicant \u2019 s circumstances sufficiently \u201cexceptional\u201d to justify dismissing the claim for possession. In particular, it noted the applicant \u2019 s \u201cpalpable disability and fragility\u201d, the fact that the arrears were never very substantial, the fact that the rent was always up to date, and the fact that the applicant had failed to keep two previous tenancies provided by public authorities and would therefore find it very difficult to find alternative accommodation.","2. The Court of Appeal","9. The applicant appealed against the possession order on both the Article 8 ground and the authorisation ground. The Court of Appeal dismissed the appeal on the authorisation ground, agreeing with the County Court that the mortgage conditions gave the receivers appropriate authority to serve the section 21 notice and take proceedings. In respect of the Article 8 ground, it indicated that the crux of the appeal was whether the applicant, as a tenant of a private landlord, could claim under Article 8 \u00a7 2 of the Convention that a possession order would be disproportionate. The Court of Appeal concluded that the county court had been correct in finding that she could not, since there was no \u201cclear and constant\u201d jurisprudence of this Court to the effect that the proportionality test should apply where the landlord is a private person or organisation rather than a public authority. In any case, the court considered that even if the proportionality test had applied, the possession order would still have been made. In this regard, it was unable to agree with the County Court \u2019 s selection of factors for the purpose of the balancing exercise under Article 8 of the Convention. For example, the Court of Appeal considered that the amount of arrears could not by themselves be considered a relevant factor because the lender was also entitled to recover its capital. Moreover, there was no indication that the County Court had directed itself that very few cases would meet the high standard required for interference with the rights of the landlord in a public sector case. It therefore found that it would have to set the County Court \u2019 s assessment aside and make its own assessment.","10. In making that assessment, it observed that where the right of a former tenant to respect for his home had to be balanced against the rights of a landlord, the balance would almost always be struck in the landlord \u2019 s favour because the landlord was enforcing his property rights and may have suffered financial loss (such as arrears of rent) which he might not be able to recover. Moroever, there could be third parties liable to be prejudiced by the refusal to make a possession order, such as mortgagees of the property and other creditors of the landlord \u2013 or, indeed, homeless persons interested in the enforcement by social landlords of their rights to recovery of their housing stock from tenants to whom they no longer owe any housing duty. On the facts of the present case, the court considered that even if the proportionality test had applied, a possession order could have been made Although there was clear medical evidence that the applicant would suffer distress on having to move home, those caring for her would be able to help her and take precautions to prevent her from causing herself serious harm. On the other hand CHL was owed some GBP 200,000 which it would be unable to recoup unless a possession order was made.","11. Further, and in any event, the court considered itself bound by Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, in which the Court of Appeal held that section 21(4) of the Housing Act 1988 was not incompatible with Article 8 of the Convention.","12. Therefore, the court also dismissed the appeal on the Article 8 ground.","3. The Supreme Court","13. The applicant was granted permission to appeal to the Supreme Court, which, on 15 June 2016, handed down a unanimous judgment (Lady Hale and Lord Neuberger gave the leading judgment, with which the other Justices agreed).","14. The Supreme Court identified three issues raised by the appeal. The first was whether a court, when entertaining a claim for possession by a private sector owner against a residential occupier, should be required to consider the proportionality of evicting the occupier in light of section 6 of the Human Rights Act 1998 and Article 8 of the Convention. The second issue was whether, if the first question was answered in the affirmative, section 21(4) of the Housing Act 1988 could be read so as to comply with that conclusion. Finally, if the answer to the first and second questions was yes, whether the trial judge would have been entitled to dismiss the claim for possession in this case, as he said he would have done.","15. Before turning to these issues, the Supreme Court first considered the history of successive Governments \u2019 policies towards renting in the private sector. In essence, the court observed that the creation of assured shorthold tenancies and the subsequent decrease in statutory protection for such tenants had served to reinvigorate the private residential rented sector in England and Wales over the past twenty-five years.","16. With regard to the first issue, the applicant had contended that as a court was a \u201cpublic authority\u201d within the meaning of section 6(3)(a) of the Human Rights Act 1998, no judge could make an order for possession of a person \u2019 s home without first considering whether it would be proportionate to do so, and a private sector residential tenant was therefore in a similar position to a public sector residential tenant. The court responded to that argument in the following terms:","\u201cIn the absence of any clear and authoritative guidance from the Strasbourg court to the contrary, we would take the view that, although it may well be that article 8 is engaged when a judge makes an order for possession of a tenant \u2019 s home at the suit of a private sector landlord, it is not open to the tenant to contend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants. In effect the provisions of the Protection from Eviction Act 1977, section 89 of the Housing Act 1980 and Chapters I and IV of the 1988 Act, as amended from time to time, reflect the state \u2019 s assessment of where to strike the balance between the article 8 rights of residential tenants and the A1P1 rights of private sector landlords when their tenancy contract has ended. ...","To hold otherwise would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations, whereas the purpose of the Convention is, as we have mentioned, to protect citizens from having their rights infringed by the state. To hold otherwise would also mean that the Convention could be invoked to interfere with the A1P1 rights of the landlord, and in a way which was unpredictable. Indeed, if article 8 permitted the court to postpone the execution of an order for possession for a significant period, it could well result in financial loss without compensation - for instance if the landlord wished, or even needed, to sell the property with vacant possession (which notoriously commands a higher price than if the property is occupied).","... ... ...","It is, of course, true that a court, which is a public authority for the purposes of the 1998 Act (and is regarded as part of the state by the Strasbourg court), actually makes the order for possession which deprives the tenant of his home - and indeed puts an end to the [assured shorthold tenancy]. However, as Lord Millett explained in Harrow London Borough Council v Qazi [2004] 1 AC 983, paras 108-109, the court is \u201cmerely the forum for the determination of the civil right in dispute between the parties\u201d and \u201conce it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate\u201d.","This conclusion does not mean that a tenant could not contend that the provisions of the 1988 Act did not, for some reason, properly protect the article 8 rights of assured shorthold tenants: that would involve arguing that the legislature had not carried out its obligations under the Convention. However, quite rightly, no such argument was advanced on behalf of the appellant in this case. As the summary in paras 11-19 above shows, the Government \u2019 s approach to the private rented sector in England has been designed to confer a measure of protection on residential occupiers, without conferring so much protection as to deter private individuals and companies from making residential properties available for letting. The extent of the protection afforded to tenants under [assured shorthold tenancies] is significant, if limited, and it enables both landlords and tenants to know exactly where they stand. While there will of course occasionally be hard cases, it does not seem to us that they justify the conclusion that in every case where a private sector landlord seeks possession, a residential tenant should be entitled to require the court to consider the proportionality of the order for possession which she has agreed should be made, subject to what the legislature considers appropriate.","Of course, there are many cases where the court can be required to balance conflicting Convention rights of two parties, eg where a person is seeking to rely on her article 8 rights to restrain a newspaper from publishing an article which breaches her privacy, and where the newspaper relies on article 10. But such disputes arise not from contractual arrangements made between two private parties, but from tortious or quasi-tortious relationships, where the legislature has expressly, impliedly or through inaction, left it to the courts to carry out the balancing exercise. It is in sharp contrast to the present type of case where the parties are in a contractual relationship in respect of which the legislature has prescribed how their respective Convention rights are to be respected.","Given that that is our view as a matter of principle, it is necessary to consider the jurisprudence of the Strasbourg court to see whether it points to a different conclusion.\u201d","17. The Supreme Court then turned to consider the Strasbourg jurisprudence, but agreed with the lower courts that there was no support for the proposition that a judge could be required to consider the proportionality of a possession order in a case such as the present.","18. The court therefore indicated that it would dismiss the appeal on the first issue. It then proceeded to consider the second and third issues. While it acknowledged that it was not necessary to do so, it observed that both were of potential importance.","19. With respect to the second issue, it found that it would not have been possible to read section 21(4) of the Housing Act 1988 so as to require a proportionality assessment.","20. Finally, with regard to the third issue, the court noted:","\u201cIn those rare cases where the court is required to assess the proportionality of making a possession order, the court has at least four possible options. ...","It may (a) make an immediate order for possession; (b) make an order for possession on a date within 14 days; (c) in cases of exceptional hardship make an order for possession on a date within six weeks; or (d) decline to make an order for possession at all. The cases in which it would be justifiable to refuse, as opposed to postpone, a possession order must be very few and far between, even when taken as a proportion of those rare cases where proportionality can be successfully invoked. They could only be cases in which the landlord \u2019 s interest in regaining possession was heavily outweighed by the gravity of the interference in the occupier \u2019 s right to respect for her home. ... Were a proportionality defence to be available in section 21 claims, it is not easy to imagine circumstances in which the occupier \u2019 s article 8 rights would be so strong as to preclude the making, as opposed to the short postponement, of a possession order.","In this case, the judge referred to the fact that the arrears of interest on the mortgage were insubstantial and the rent was always up to date. That is, however, only part of the story. The loan which enabled the appellant \u2019 s parents to buy this house was for a period of only eight years, expiring on 12 May 2013, three weeks after the judge gave his judgment. The lenders were entitled to their money back then. The amount due (apart from legal costs) was nearly \u00a3164,000. The best chance of recovering all that was due to them was to sell the property with vacant possession. ... In any event, it would be for the appellant to show that a possession order would be disproportionate, and that to refuse a possession order would not prevent the lenders from recovering the sums to which they were entitled. It is difficult to see how the appellant \u2019 s circumstances, most unfortunate though they undoubtedly are, could justify postponing indefinitely the lenders \u2019 right to be repaid.","In the circumstances, therefore, and on the evidence available to the judge, it seems likely that the most the appellant could hope for on a proportionality assessment would be an order for possession in six weeks \u2019 time.\u201d","B. Relevant domestic law and practice","1. The Housing Act 1988","21. Section 5 of the 1988 Act (as amended by the Housing and Regeneration Act 2008) provides, in so far as relevant:","\u201c(1) An assured tenancy cannot be brought to an end by the landlord except by -","(a) obtaining -","(i) an order of the court for possession of the dwelling-house under section 7 or 21,","and","(ii) the execution of the order,","...","and, accordingly, the service by the landlord of a notice to quit is of no effect in relation to a periodic assured tenancy.","(1A) Where an order of the court for possession of the dwelling-house is obtained, the tenancy ends when the order is executed.","...\u201d","22. Accordingly, a landlord under an assured shorthold tenancy can obtain an order for possession from a court against the tenant either under section 7 or under section 21 of the 1988 Act. Section 7, which was not in issue in the present case, applies where the assured shorthold tenancy is a periodic tenancy or has come to an end or could be brought to an end, and one of the specified grounds is made out by the landlord.","23. Section 21(1) of the 1988 Act (as amended by the Local Government and Housing Act 1989 and the Housing Act 1996 ) applies where the landlord has given the tenant two months \u2019 notice after the tenancy has come to an end. At the time of the service of notice and the hearing in the County Court in this case, it provided as follows:","\u201c[O]n or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied -","(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and","(b) the landlord ... has given to the tenant not less than two months \u2019 notice in writing stating that he requires possession of the dwelling-house.\u201d","Section 21(4) (as amended by the Housing Act 1996) states that:","\u201cWithout prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied -","(a) that the landlord ... has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and","(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above.\u201d","2. The Housing Act 1980","24. Section 89 of the 1980 Act provides that, subject to certain exceptions (which do not include orders for possession in respect of an AST):","\u201cWhere a court makes an order for the possession of any land ..., the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than 14 days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order. \u201d","3. The Human Rights Act 1998","25. Pursuant to section 6 of the 1998 Act, it is unlawful for a public authority (including any court or tribunal) to act in a way which is incompatible with a Convention right.","4. Manchester City Council v Pinnock [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] 2 AC 186.","26. Over the past ten years there has been an ongoing dialogue between this Court and the House of Lords\/Supreme Court concerning the applicability of the Article 8 proportionality assessment in possession cases. The House of Lords originally took the view that although a claim for possession of residential property by a local authority engaged the Article 8 right of the residential occupier, the proportionality of making an order for possession had already been taken into account by Parliament through the legislation, which limited the landlord \u2019 s right to obtain possession. However, this Court held that the existence of the legislation did not prevent an occupier in such a case from raising his or her Article 8 rights when possession of his or her home was being sought (see, for example, McCann v. the United Kingdom, no. 19009\/04, \u00a7 50, ECHR 2008)","27. In Pinnock, the Supreme Court concluded that, in light of Strasbourg \u2019 s clear and constant jurisprudence,","\u201cif our law is to be compatible with Article 8, where a court is asked to make an order for possession of a person \u2019 s home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact\u201d.","28. However, the Supreme Court also made it clear that it would \u201conly be in \u2018 very highly exceptional cases \u2019 that it will be appropriate for the court to consider a proportionality argument\u201d and that \u201cwhere ... the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate\u201d.","29. In Pinnock, the Supreme Court made it clear that \u201cnothing\u201d said in the judgment in that case was \u201cintended to bear on cases where the person seeking the order for possession is a private landowner\u201d, and added that it was \u201cpreferable for this court to express no view on the issue until it arises and has to be determined\u201d.","30. Following the Supreme Court judgment, the applicants complained to this Court under Article 8 of the Convention. In a decision dated 24 September 2013 the Court held the complaint to be inadmissible as manifestly ill-founded, as the Supreme Court had not exceeded its margin of appreciation in finding the applicants \u2019 eviction to be proportionate (see Pinnock and Walker v, the United Kingdom, no. 31673\/11, 24 September 2013)."],"113":["7.The applicants were born in 1962 and 1939 respectively and live in Arma\u00e7ao dos Buzios (Brazil). The second applicant is the first applicant\u2019s mother and guardian.","8.The first applicant has been deaf since birth, speaks her mother tongue with great difficulty and has no capacity of discernment on account of a severe disability which has required comprehensive therapeutic provision throughout her life. She was granted an extraordinary invalidity insurance pension (\u201cenhanced pension forcongenitally disabled persons\u201d) as from 1 September 1980, and a disability allowance as of 1 September 1997. From January 2009 to March2010 (15 months) the Cantonal Social Insurance Office of the Canton of Geneva granted the first applicant allowances to a total of CHF 39,900 (approximately 35,400 euros at current rates).","9.The legal provisions applicable in this sphere state that beneficiaries of the extraordinary pension and the disability allowance, which are non-contributory benefits, must have a private address and their habitual residence in Switzerland (see paragraphs 21 and 25 below).","10.During review proceedings brought in July 2009, the Geneva Canton Disability Insurance Office obtained information, in particular, from the second applicantand from MichelBelli, the first applicant\u2019s divorced parents.","11.In fact, the second applicant had decided to settle in Brazil with her new husband, a French national \u2013 with whom the applicants submit they have been living since 1982 \u2013 in order to purchase and run a hotel. The first applicant, who had been placed under the second applicant\u2019s parental authority in summer 2009, had been living with her in Brazil for several years, visiting her father in Switzerland for about three weeks every three months.","12.By decision of 3 December 2010, the Disability Insurance Office for Insured Persons Resident Abroad (OAIE) rescinded the first applicant\u2019s entitlement to the extraordinary invalidity pension and the disability allowance with effect from 1 April 2010.","13.On 5 October 2012 the Federal Administrative Court dismissed the applicants\u2019 appeal against that decision. In short, the court held that the first applicant was no longer entitled to the benefits in question because she did not have a private address or her habitual residence in Switzerland.","14.Exercising their right to lodge a public-law appeal, the applicants invited the Federal Court to set aside the judgment of the Federal Administrative Court and the decision of 3 December 2010, and to order the OAIE to pay \u201cuninterruptedly\u201d to the first applicant, in respect of costs and expenses, the extraordinary invalidity pension and the disability allowance with 5% annual interest.","The applicants submitted that the withdrawal of the benefits on the grounds that they were non-exportable amounted to a disproportionate and therefore unjustified interference with their private and family life, as well as their private home as protected by Article 8 of the Convention. If the withdrawal were upheld, the first applicant would be forced to return to Switzerland in order to receive the benefits which were necessary for her quality of life, which meant that either she would have to live separately from her mother or the latter would be obliged, in order to avert such separation, to return to Switzerland to live with her daughter, which would entail separation from her current husband. The right to respect for the home would also be affected, since the insured person would be forced to move to Switzerland. The applicants took the view that the said infringement was also discriminatory within the meaning of Article 14 of the Convention, read in conjunction with Article 8, because the benefits had been withdrawn for reasons linked to the nature of the insured person\u2019s disability: she had been born with a health impairment and had therefore not been able to contribute to the disability insurance scheme before the disability had occurred.","15.By judgment of 15 April 2013, notified on 26 April 2013, the Federal Court dismissed the appeal lodged by the two applicants. In short, the Federal Court found that the withdrawal of the right to an extraordinary invalidity pension and a disability allowance on account of the lack of a private address and residence in Switzerland did not fall within the ambit of Article 8 of the Convention. In that connection, the court emphasised that the benefits in question had not pursued the aim of protecting family life or intervening in personal or family relations.","\u201c4.1 ... Art. 8 para. 1 ECHR also protects the individual\u2019s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect of the home are not confined to concrete or physical breaches, such as unauthorised entry into a person\u2019s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference (see ECtHR judgment Moreno v. Spain, 16 November 2004, ECHR Reports 2004-X p. 307 \u00a7 53).","4.2 According to the constant case-law of the ECtHR, Art. 8 ECHR does not give rise to direct entitlement to social insurance benefits. The Court has indeed acknowledged that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may, in certain circumstances, be positive obligations inherent in effective respect for private or family life (see, among other authorities, Botta, \u00a7 33). However, it has held that Art. 8 ECHR does not impose on the Contracting States any obligation to provide specific financial assistance or to guarantee a specific standard of living (see Petrovic v. Austria, 27 March 1998, Reports 1998-II p. 579 \u00a7 26 et seq., and the inadmissibility decision in Pancenko v. Latvia, 28 October 1999). That provision places no restriction on the Contracting States\u2019 freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme (see Stec and Others v. the United Kingdom, 12April2006, ECHR Reports 2006-VI p. 159, \u00a7 53). The ECtHR has thus considered that a refusal to grant a parental leave allowance cannot amount to a failure to respect family life, since Article 8 of the Convention does not impose any positive obligation on States to provide the financial assistance in question (see Petrovic, \u00a7 26).","Consequently, given that Art. 8 ECHR does not give rise to entitlement to a specific standard of living or to a positive obligation to provide a social insurance benefit, the withdrawal of the benefits in question owing to the insured person\u2019s departure from Switzerland does not amount to an interference with private or family life. Nor does this measure impinge on the necessary respect for the home within the meaning of Art. 8 (1) ECHR and the European Court\u2019s case-law, which the appellants have interpreted broadly, as it does not involve any practical infringement of the area in which their private and family life develops. Furthermore, it is plain that the appellants were not impeded by the Swiss authorities in their choice of way of life and the development of their family relations in Switzerland or abroad; in particular, they were not prevented from maintaining family and social relations in this country, from settling in it or leaving it as they wished.","It should be pointed out here that in all cases where the European Court has considered a denial of specific social insurance benefits in the light of the rights secured under the ECHR, it has relied on Protocol No. 1 of 20 March 1952 to the ECHR, as, for example, in Moskal v. Poland, 15 September 2009, \u00a7\u00a7 93 et seq., cited by the appellants (see also Stec and Others, \u00a7 53, and KouaPoirrezv France, 30 September 2003, ECHR Reports 2003-X p. 45 \u00a7\u00a743 et seq.). Since Switzerland has not ratified that protocol, it is not bound by the Court\u2019s case-law concerning the non-discriminatory granting of social security benefits based on Article1 of the protocol.","4.3 Contrary to the appellants\u2019 subsequent submissions, the withdrawal of the social insurance benefits in question does not, from a thematic perspective, fall within the scope of Art. 8 ECHR, which would enable them to pray in aid Art. 14 ECHR. That provision, which complements the other substantive provisions of the ECHR, can apply in the absence of an infringement of those provisions, provided that the facts of the case fall within the ambit of one or more of them (see, among many other authorities, Konstantin Markin v Russia, 22 March 2012, \u00a7 129 ...).","Generally speaking, the insurance invalidity benefit provided for in Swiss law is a social insurance benefit designed to offset the loss of earnings sustained by an insured person on account of the effects of a health impairment on his or her ability to work, or to compensate for an inability to perform everyday actions as a result of a health problem. The extraordinary invalidity pension pursues the same aim for individuals who have been disabled since birth (or have become disabled without having acquired entitlement to an ordinary pension). As regards the invalidity allowance, it is awarded on the basis of a long-term need for assistance by others or for the personal supervision of the insured person concerned in performing ordinary everyday actions on account of a health impairment.","Those social insurance benefits are paid regardless of the beneficiaries\u2019 lifestyle, that is, irrespective of whether they live alone, with family or in an institution (with certain exceptions irrelevant to the present case: see, for example, section 42 (5) LAI and section 35bis (3) RAI). From that angle, the benefits are, precisely, intended to enable adult beneficiaries to lead as autonomous a life as possible, without having to depend on help and assistance from members of their families. They are not designed to promote family life or to intervene in personal or family relationships. Contrary to the examples cited by the appellants, and according to a legal opinion to which they refer (MatthiasKradolfer, op. cit., p. 73), to wit a parental leave allowance (see Petrovic, \u00a7 27) and an \u2018assistance pension\u2019 paid to the parents of a disabled child (see Moskal v Poland \u00a7 93), the Swiss extraordinary invalidity pension and disability allowance are not aimed at enabling one of the parents to remain at home in order to look after their (adult) child. Accordingly, the withdrawal of those benefits on account of the non-fulfilment of the criterion of ordinary residence in Switzerland laid down in domestic law does not fall within the scope of Article 8 ECHR.\u201d","16.In declaring Article 8 of the Convention inapplicable in the instant case the Federal Court saw no need to assess the existence of discrimination within the meaning of Article 14 of the Convention.","A.Non-contributory benefits in Swiss law","1.Preliminary remarks","17.It should be pointed out at the outset that Switzerland has not concluded any international agreement with Brazil concerning disability benefits.","18.One of the main differences between ordinary pensions and, as in the instant case, extraordinary pensions and the disability allowance, is that the latter are granted on the condition of having a private address and ordinary residence in Switzerland. It follows that ordinary invalidity pensions, as contributory benefits, can be exported to a foreign country (under the exportation principle) and extraordinary invalidity pensions and the disability allowance cannot. The Report published by the Federal Commission of Experts for the introduction of disability insurance on 30November 1956 explained that extraordinary pensions, as non-contributory benefits, were not paid abroad because they were primarily funded from public monies, to which persons residing outside Switzerland do not contribute.","19.Section 17 (2) of the Federal Law on Social Insurance (general section) (LPGA) of 6 October 2000 provides that:","\u201cany long-term benefit granted pursuant to a decision which has become final shall, ex officio or on request, be increased or reduced accordingly, or else withdrawn, where the conditions for its grant have significantly changed.\u201d","2.Functional disability allowance (Hilflosenentsch\u00e4digung)","20.Pursuant to section 9 of the LPGA, a person suffering from functional disability is anyone who, on account of a health impairment, needs permanent assistance from another person or personal supervision in order to perform ordinary everyday actions.","21.Section 42 (1) of the Federal Law on Disability Insurance of 19 June 1959 (LAI) provides:","\u201cinsured persons suffering from functional disability ... who have their private address and ordinary residence ... in Switzerland are entitled to a functional disability allowance.\u201d","22.Under section 77 (2) LAI, the functional disability allowance is funded exclusively by the Confederation. It is a non-contributory benefit.","23.Entitlement to a functional disability allowance does not depend on whether or not the person concerned is in receipt of an invalidity insurance benefit. The allowance is a cash benefit assessed according to the person\u2019s needs in terms of assistance and supervision, irrespective of actual costs and actual recourse to the services of third persons.","3.Extraordinary disability insurance pension (\u201cpension increased in respect of persons disabled from birth\u201d)","24.Prior to 1 January 2008, a date which is decisive in the present case, persons with disabilities were eligible for an ordinary invalidity insurance pension if, at the onset of their invalidity, they had been contributing for at least one year. Persons who had not yet been subject to compulsory contributions for a full year were entitled to an extraordinary invalidity insurance pension.","25.Section 39 LAI mentions that the entitlement of Swiss nationals to extraordinary pensions is governed by the provisions of the 20December 1946 Federal Law on pension insurance and survivors (LAVS). Section 42 LAVS provides:","\u201c1 Swiss nationals having their private home and ordinary residence ... in Switzerland are entitled to an extraordinary pension if they have the same number of years\u2019 insurance as other persons in the same age bracket but are not entitled to an ordinary pension because they have not been subject to compulsory payment of contributions for at least one year. ... .","2 Any insured person who is granted a pension must personally satisfy the requirement of a private home and ordinary residence in Switzerland.\u201d ...","26.As regards the \u201cordinary residence\u201d requirement, section 13 (2 ) LPGA provides that","\u201ca person is deemed to have his or her ordinary residence at the place where he or she resides or has resided for a period of time, regardless of the length of that period of time.\u201d","27.Section 13 (1) LPGA refers to the Swiss Civil Code of 10 December 1907, the relevant provisions of which provide:","Article 23 CC: Private home (domicile) (Definition)","\u201c1A person\u2019s private home is the place where he or she resides with the intention of settling there; residence in a training institution or accommodation in an educational institution, a nursing or old people\u2019s home, a hospital or a detention centre does not per se constitute a private home.","2 No one may have several private homes simultaneously. ...\u201d","Article 26 CC: Private home of adults under general guardianship orders","\u201cThe private home of adults under general guardianship orders is the headquarters of the adult protection agency.\u201d","B.Non-contributory benefits in international social security law","28.Article 9 of the International Covenant on Economic, Social and Cultural Rights of 16 December 1966, which came into force in respect of Switzerland on 18September 1998, enshrines the right to social security. Nevertheless, in its General Comment No. 19 of 4 February 2008 (E\/C.12\/GC\/19), the Committee on Economic, Social and Cultural Rights notes the following as regards the international implementation of the obligations deriving from the right secured (italics added):","\u201c56. States parties should ensure that the right to social security is given due attention in international agreements and, to that end, should consider the development of further legal instruments. The Committee notes the importance of establishing reciprocal bilateral and multilateral international agreements or other instruments for coordinating or harmonizing contributory social security schemes for migrant workers. ...\u201d","29.Article 32 (1) of ILO Convention No. 128 of 29 June 1967 concerning Disability, Old-Age and Survivors\u2019 Benefits, which came into force in respect of Switzerland on 13 September 1978, permits the suspension of","\u201ca benefit to which a person protected would otherwise be entitled... (a) as long as the person concerned is absent from the territory of the Member, except, under prescribed conditions, in the case of a contributory benefit. ... .\u201d [italics added]","30.Pursuant to Article 11 of the European Convention on Social Security of 14 December 1972, designed as an instrument coordinating the Council of Europe social security schemes (Council of Europe Treaty Series (CETS) no. 078, not ratified by the Swiss Confederation, the following are excluded from the scope of that convention(italics added):","\u201c(a) special non-contributory benefits granted to invalids who are unable to earn a living; (b) special non-contributory benefits granted to persons not entitled to normal benefits; ... .\u201d","C.Non-contributory benefits under comparative law","31.Comparison of legislation in thirty-four member States of the Council of Europe (Albania, Armenia, Austria, Belgium, Bosnia-Herzegovina, Bulgaria, Cyprus, Croatia, Estonia, France, Germany, Greece, Hungary, Ireland, Iceland, Italy, Liechtenstein, Lithuania, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Monaco, the Netherlands, Poland, Portugal, Romania, the Russian Federation, San Marino, Serbia, Slovenia, Spain, Sweden, Turkey, Ukraine and the United Kingdom) and three non-member States (Canada, Hong Kong and the United States) led to the following conclusions.","(1) The general rule in seventeen of the States compared is that contributory pensions are exportable, but that permanent residence is a precondition for entitlement to non-contributory benefits (Albania, Armenia, Austria, Belgium, Canada, the United States, France, Germany, Hong Kong, Ireland, Italy, Lithuania, Poland, Portugal, San Marino, Turkey and Ukraine). Some of those States, however, lay down special rules on the exportability of non\u2011contributory benefits. In Austria and Germany, people with severe disabilities may apply for a \u201cseverely disabled pass\u201d (Schwerbehindertenausweis) stating their degree of disability and facilitating the receipt of benefits. Foreign residents can also obtain this pass if there is a \u201csufficientlink\u201d with the State of origin. Italy allows beneficiaries of some benefits to retain them abroad, albeit only for six months or for serious medical reasons. Poland also permits the exportation of specific benefits in the event of a temporary absence from the country. Belgium and Ireland allow for derogations from the general rule of non-exportability, particularly in cases of extreme necessity. In Portugal, exportation is exceptionally possible where the disabled person is accompanying a close relative working abroad in the Portuguese national interest.","(2) The general rule in eighteen of the States compared is that disability benefits are non-exportable, be they contributory or not (Bosnia-Herzegovina, Bulgaria, Cyprus, Estonia, Greece, Hungary, Iceland, Liechtenstein, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Monaco, the Netherlands, Romania, the Russian Federation, Serbia, Slovenia, Sweden and the United Kingdom).","(3) Two States fall into neither of those categories inasmuch as the exportability of a benefit is decided on a case-by-case basis, regardless of whether the benefit is contributory or not (Croatia and Spain).","(4) Benefits may, however, be exportable if the State in question has concluded a bilateral international agreement on that subject.","(5) Furthermore, EU Member States must comply with the relevant provisions of EU law set out below as regards the exportation of benefits within the European Union.","D.Non-contributory benefits in European Union law","32.Social security benefits are coordinated within the European Union. Such coordination is governed by the principle of the exportability of social welfare benefits between EU countries. However, European law does not address the matter of the exportability of benefits to third States, and the legislative powers in this field and competence to conclude international agreements with third States remain at the national level.","33.The original texts on social security coordination in the European Union (such as Regulation No. 1408\/71\/EEC of 14 June 1971) make no mention of special non-contributory cash benefits. Decisions were thus taken against a number of States which had refused to pay benefits to persons not residing in their territory. It was not until the enactment of Regulation No. 1247\/92\/EC that the category of special non-contributory cash benefits was created, specifying, within the ambit of Regulation No. 1408\/71\/EEC of 14 June 1971, that those benefits would not be exportable.","34.The Court of Justice of the European Union subsequently developed case-law concerning the conditions under which a benefit qualified as a special non-contributory cash benefit. Those conditions have now been codified in Regulation No. 883\/2004\/EC of 29 April 2004 (Article 70 paragraph 2):","\u201c2.For the purposes of this Chapter, \u2018special non-contributory cash benefits\u2019 means those which:","(a)are intended to provide either:","(i)supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in Article 3(1), and which guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned;","or","(ii)solely specific protection for the disabled, closely linked to the said person\u2019s social environment in the Member State concerned,","and","(b)where the financing exclusively derives from compulsory taxation intended to cover general public expenditure and the conditions for providing and for calculating the benefits are not dependent on any contribution in respect of the beneficiary. However, benefits provided to supplement a contributory benefit shall not be considered to be contributory benefits for this reason alone,","and","(c)are listed in Annex X.\u201d","35.The Regulation also states that disability benefits are subject to it, pursuant to Article 3 \u00a7 1 (c):","Article 3","\u201cMatters covered","1.This Regulation shall apply to all legislation concerning the following branches of social security:","(c)invalidity benefits; ...\u201d","36.Article 70 (4) of the Regulation sets out the principle that special non-contributory cash benefits are not exportable:","\u201c4. The benefits referred to in paragraph 2 shall be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation. Such benefits shall be provided by and at the expense of the institution of the place of residence.\u201d","37. Member States of the European Union must list the benefits which they grant and which satisfy the conditions governing special non-contributory benefits set out in Annex X to Regulation No.883\/2004\/EC of 29 April 2004 in order to obtain any derogation to the exportability of benefits.","38.However, the Court of Justice of the European Union does not verify whether the benefits listed in Annex X correspond to special non-contributory cash benefits. It transpires from its case-law that:","(i)if the benefit is considered as a sickness cash benefit, it must be granted irrespective of the Member State in which the recipient is resident (see CJEU, 5 May 2011, European Commissionv. Federal Republic of Germany, C-206\/10, para. 30); however,","(ii)the grant of benefits closely linked with the social environment may legitimately be made subject to a condition of residence in the Member State concerned, for example if it is based on the minimum wage or the standard of living in that State (see CJEU, 5May2011, Ralph James Bartlett and Others v. Secretary of State for Work and Pensions, C-537\/09, para. 38).","39.The Court of Justice has also restricted the possibility of invoking the residence condition against an EU citizen in respect of a special non-contributory cash benefit in cases involving freedom of movement. In a case concerning a man who was in receipt of benefits in the Netherlands until he moved to Belgium, when they were no longer paid even though he continued to work in the Netherlands, where he had also retained all his economic and social ties, the Court considered that the implementation of the conditions set out in the European regulation should not impinge on the rights deriving from the freedom of movement of workers beyond what was required to attain the legitimate object pursued by national law (see CJCE, Grand Chamber, 11 September 2007, H. v. Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen, C-287\/05, para. 56).","E.Applicability of Regulation No. 883\/2004\/EC to Switzerland","40.Regulation No. 883\/2004\/EC of 29 April 2004 has been applicable to Switzerland in its relations with the Member States of the European Union since 1 April 2012, in the framework of the Agreement on freedom of movement of persons between Switzerland and the European Union. The following Swiss benefits are listed in Annex X to the Regulation:","\u201c1. Supplementary benefits (Federal Supplementary Benefits Act of 6 October 2006) and similar benefits provided for under cantonal legislation.","2. Pensions in the case of hardship under invalidity insurance (Article 28 sub-paragraph 1a of the Federal Invalidity Insurance Act of 19 June 1959, as amended on 7 October 1994).","3. Non-contributory mixed benefits in the event of unemployment, as provided for under cantonal legislation.","4. Non-contributory extraordinary invalidity pensions for disabled persons (Article 39 of the Federal Invalidity Insurance Act of 19 June 1959) who have not been subject, before their incapacity for work, to the Swiss legislation on the basis of an activity as an employed or self-employed person.\u201d","41.In it judgment ATF 141 V 530 of 11 September 2015, the Federal Court pointed out that extraordinary invalidity pensions satisfied all the criteria to be considered as special benefits within the meaning of Article 70\u00a7 2 of Regulation No. 883\/2004.","\u201c7.3.3 In order to justify its position vis-\u00e0-vis the European institutions, the Swiss Confederation first of all observed that in order to be eligible for an ordinary disability insurance pension, insured persons had to have paid contributions for at least three years at the time when they became unfit for work. Persons who have been disabled since birth or childhood cannot fulfil that condition, given that they were unable to work before the age  at which they would have begun to pay contributions. That is why such persons were entitled to a special pension corresponding to the amount of the minimum ordinary invalidity pension. That pension was granted to persons over the age of eighteen living in Switzerland (see proposal of 28 June 2010 cited above, pp. 8 and 9).","According to the explanations provided by the Swiss Confederation, it was justifiable to include the extraordinary invalidity insurance pension in the list of special non-contributory cash benefits, because it fulfilled all the criteria for being considered as a special non-contributory benefit within the meaning of Article 4 para. 2bis of Regulation No. 1408\/71 and the relevant CJEC case-law. It was first and foremost a mixed benefit: on the one hand it had specific social-security features in that the persons concerned had a clearly defined right to that benefit and it covered the invalidity risk; on the other hand it was also linked to social assistance in that it was not based on periods of work or contribution and was not aimed at mitigating a situation of need by providing a minimum living wage to a socially underprivileged group (young persons with disabilities). The extraordinary pension was also a special benefit, since it was an alternative allowance aimed at persons who did not fulfil the insurance conditions to obtain an ordinary invalidity pension; it was closely linked to the socio-economic situation in Switzerland, since it corresponded to the minimum pension in that State. Finally, the extraordinary pension was non-contributory, as it was not funded from contributions but exclusively by the Confederation (see proposal of 28June2010 cited above, p. 8).\u201d","42.The Federal Court also confirmed that disability allowances (section 42 (1) LAI) constitute special non-contributory cash benefits (ATF 142 V 2, 17 December 2015).","F.United Nations Convention on the Rights of Persons with Disabilities","43.The relevant provisions of the UN Convention on the Rights of Persons with Disabilities of 13 December 2006, ratified by Switzerland on 15 April 2014, read as follows:","Article 2 (3)(definitions)","\u201c\u2018Discrimination on the basis of disability\u2019\u201d means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation ...","Article 3: General principles","The principles of the present Convention shall be:","(a) Respect for inherent dignity, individual autonomy including the freedom to make one\u2019s own choices, and independence of persons;","(b) Non-discrimination;","(c) Full and effective participation and inclusion in society;","(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;","(e) Equality of opportunity;","(f) Accessibility;","(g) Equality between men and women;","(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.","Article 5: Equality and non-discrimination","1.States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.","2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. ...","Article 19: Living independently and being included in the community","States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:","(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;","(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;","(c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.","Article 28: Adequate standard of living and social protection"," 1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.","2. States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures:","...","b) To ensure access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes;","...","e) To ensure equal access by persons with disabilities to retirement benefits and programmes.\u201d"],"114":["The applicant, Mr Sergey Nikolayevich Plotnikov, is a Russian national who lives in Abakan. He is represented before the Court by Mr D. Lantsov, a lawyer practising in Abakan.","A. The circumstances of the case","The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is the father of V., born in 2005, but now deceased.","In the evening of 30 May 2008, after she had returned home from a municipal nursery school, V. felt unwell. She had a headache and fever.","On the next morning V. \u2019 s condition deteriorated and she was urgently admitted to a municipal hospital. On the same day V. was diagnosed with meningococcosis. She was transferred to an intensive care unit, where she died shortly afterwards.","In the meantime, the applicant and his wife found out that another boy, who had attended the same group of the nursery school as V., had been admitted to hospital in a critical condition on 26 May 2008, with a diagnosis of an acute respiratory infection, neurotoxicosis. On 29 May 2008 his diagnosis was changed to meningocephalitis. On 3 June 2008 the boy died at the intensive care unit.","On 3 June 2008 the authorities brought criminal proceedings against Ms Sh., the head of the nursery school, for aggravated professional negligence which had resulted in the death of two children. In particular, she was suspected of having acted in breach of her professional duties by failing to alert health professionals and the parents of the children attending the nursery school about the infection, and to take measures to close the nursery school with a view to preventing the infection from spreading.","During the investigation witness statements were collected from the applicant, his wife, parents of other children at the nursery school, including those of the deceased boy, the personnel of the nursery school and the doctors of the hospital to which the deceased children had been admitted, as well as certain representatives of the State agency for epidemiological control, consumer rights and health protection (\u201cthe epidemiological authorities\u201d).","The personnel of the nursery school explained that, in the first few days following the boy \u2019 s hospitalisation, they had not received any official notice from the epidemiological authorities or the hospital that the boy had had a dangerous infectious disease requiring urgent sanitary measures to be taken at the nursery school, and that as soon as they had received such notice in respect of the applicant \u2019 s daughter, they had promptly taken all measures to protect other children and adults working in the nursery school.","The doctors stated that, although bacterial meningocephalitis was not listed in Decree no. 654 concerning the diseases in respect of which the competent authorities must be urgently notified as soon as those diseases were detected, it was on 29 May 2008 (that is, the same date on which they had received the boy \u2019 s tests showing that he had meningocephalitis ) that they had informed the epidemiological authorities thereof. They had furthermore informed those authorities of V. \u2019 s disease as soon as it had been diagnosed.","The representatives of the epidemiological authorities stated that they had, indeed, received a notice about a case of \u201c meningocephalitis \u201d on 29 May 2008; however, no urgent epidemiological measures had followed, as that disease was not listed in Decree no. 654, and the notice from the hospital had not specified the type of virus or bacteria which had caused the illness. They further stated that on 31 May 2008, as soon as the information about V. \u2019 s death and her diagnosis had reached them, they had launched all urgent epidemiological measures in respect of the children and the staff of the nursery school.","During the investigation, biological material from the deceased children was sent to a number of institutes and scientific centres for in-depth laboratory examinations. The studies showed that the boy had had septic meningocephalitis, caused by Haemophilus Influenzae, and the applicant \u2019 s daughter had had a combined septic meningococcosis.","Four expert examinations were conducted during the investigation. Their results were reflected in reports dated 9 October and 27 November 2008, and two reports dated 27 February 2009. The reports confirmed, in particular, that the boy \u2019 s death had been caused by septic meningocephalitis, and that V. had also died of septic meningocephalitis. The reports also stated that the bacteria that had provoked the boy \u2019 s disease had, most likely, been the same as the one that had caused V. \u2019 s illness (Haemophilus Influenzae ); however, it was not possible to establish precisely when the applicant \u2019 s daughter had been infected. Moreover, the exact latent period in cases of infection provoked by those bacteria was unclear; and any person, not necessarily the one showing the symptoms of the disease, could be a bearer and transmitter of those bacteria, and thus the source of infection. It was impossible to determine who of the two deceased children had been \u201cpatient zero\u201d, given the very short period of time that had elapsed between their two cases. The experts also confirmed that V. had received appropriate medical treatment as soon as she had shown the signs of the illness on 30 May 2008, but the rapid development of the disease and the particularities of her health had made her chances of survival very slim.","On 3 June 2009 the investigator in charge decided to discontinue the criminal proceedings against Ms Sh. as the constituent elements of a crime were not made out in her actions. The relevant decision stated that Ms Sh. had followed the applicable rules and regulations and, in the circumstances, she had clearly been unable to prevent the infectious disease from spreading, and to save the deceased children \u2019 s lives. Moreover, even before she had received a formal order from the competent authorities, she had, of her own motion, closed the nursery school as soon as she had been informed of the infection. The decision went on to state that the epidemiological authorities had also followed the applicable rules, and as soon as the applicant \u2019 s daughter \u2019 s disease had been identified, all necessary measures in respect of the other children in the nursery school had been taken without delay. The decision made it clear that, prior to that moment, neither the authorities nor the management of the nursery school had had any grounds to take any particular health measures.","The applicant challenged the investigator \u2019 s decision before the domestic courts. He argued, in particular, that the investigation had been superficial, that it had not established who was responsible for the death of his daughter, and that it had not been proved that Ms Sh. had not acted in breach of her duties. He further alleged that the said decision had referred to inappropriate rules and regulations.","On 2 March 2010 the Abakan Town Court of the Republic of Khakasia (\u201cthe Town Court\u201d) dismissed the applicant \u2019 s complaint. It considered that the investigation had been thorough and complete and the decision of 3 June 2009 had relied on appropriate rules and regulations of epidemiological and sanitary control as in force at the material time.","On 26 May 2010 the Supreme Court of the Republic of Khakasia upheld the Town Court \u2019 s decision on appeal.","B. Relevant domestic law","Decree no. 654 dated 13 December 1989 of the USSR Ministry of Health Care, as in force at the material time, set out the list of infectious and parasitic diseases which required that urgent notification be provided to the epidemiological authorities. The list included meningococcosis.","In accordance with section 9 of Federal Law no. 157-FZ on the immunoprophylaxis of infectious diseases, dated 17 September 1998, as in force at the material time, the national vaccination schedule included ten diseases, such as hepatitis B, diphtheria, pertussis and tuberculosis. Vaccination against Haemophilus Influenzae was not on the schedule at the time of the events."],"115":["1. A list of the applicant companies is set out in the appendix. They were represented by Mr P. Veil, a lawyer practising in Paris.","2. The Hungarian Government (\u201cthe Government\u201d) were represented by their Agent, Mr Z. Tall\u00f3di, Ministry of Justice.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. The applicant companies are financial institutions which are active in the field of financial leasing, consumer credit and consumer loan contracts in Hungary. They are members of the OTP Bank Group.","1. Background","5. According to the figures provided by the Government, the volume of consumer loans in Hungary reached its peak on 30 June 2010 when their aggregate value was 8,647.9 billion Hungarian forints (HUF). [1] Although in the subsequent years the value of those credits continuously decreased, on 30 June 2014 their volume still exceeded HUF 6,802 billion. The value of forint consumer loans amounted to HUF 3,139.1 billion, whereas the value of foreign-currency loans amounted to HUF 3,662.9 billion.","6. In the case of foreign-currency loans, the amounts provided by the creditor and repaid by the debtor were denominated in a foreign currency (calculation currency), but both parties were to pay the amounts in forints (payment currency). Under this type of contract the debtor had a debt in foreign currency and benefited from a more favourable interest rate than that payable in the given period on forint loans. Consequently, the debtor had to bear the effects of exchange-rate fluctuations: any depreciation of the forint would result in an increase in the debtor \u2019 s payment burden, and any appreciation of the forint would result in a decrease in that burden. The parties could also decide that the loan amount was to be provided and repaid in the calculation currency.","7. In 2010 the Government introduced measures to mitigate the detrimental effects of the 2008 financial crisis on debtors who held foreign \u2011 currency loans. Those measures included limiting unilateral amendments to loan contracts and fixing the exchange rates for the repayment of foreign-currency loans. In addition, Act no. CXXI of 2011 (\u201cthe Early Repayment Act\u201d) provided for the early repayment of foreign \u2011 currency loans secured by mortgages on residential real estate, resulting in a 23.3 percent decrease in such loans. That legislative change was unsuccessfully challenged by the financial institutions before the Constitutional Court, which found the interference with the financial institutions \u2019 rights to be justified on account of the exceptional and grave situation arising from the international financial crisis, which had prompted the State to take swift action to tackle the macroeconomic implications of the high volume of foreign-currency loans.","8. Following the financial crisis and the increased difficulties on the part of consumers to comply with the obligations stemming from their loan contracts, a large number of them instituted court proceedings seeking modification of the contracts. In response to the issues related thereto, K\u00faria ( the historical Hungarian name for the Supreme Court, see Baka v. Hungary [GC], no. 20261\/12, \u00a7\u00a7 24 and 48, 23 June 2016 ) delivered a number of opinions and decisions.","2. The K\u00faria \u2019 s opinions and decisions","9. On 12 December 2011 the K\u00faria issued Opinion no. 2\/2011. PK [Civil Division] on certain issues related to the invalidity of a consumer contract (hereinafter \u201cOpinion no. 2\/2011), in which it addressed the question of the unfairness of non-negotiated contractual terms and standard contractual terms employed in consumer contracts. It found that the unbalanced position of the contracting parties may necessitate the protection of the party in the weaker bargaining position. On the same day the K\u00faria issued Opinion no. 3\/2011. PK [Civil Division] on certain issues related to actio popularis in respect of consumer contracts (hereinafter \u201cOpinion no. 3\/2011). The K\u00faria confirmed that unfair general contractual terms employed in consumer contracts could be challenged before the court within the framework of actio popularis, even if the contracts in question had been concluded before 1 March 2006 (the date of entry into force of the corresponding provision in the old Civil Code, see paragraph 43 below) but only after 1 May 2004 (the date on which Hungary joined the European Union).","10. On 10 December 2012 the K\u00faria delivered Opinion no. 2\/2012 PK on the unfairness of the standard terms of contract (hereinafter \u201cSTCs\u201d) allowing for unilateral modification of a consumer-loan contract employed by a financial institution (hereinafter \u201cOpinion no. 2\/2012\u201d). It reads, as far as relevant:","\u201c(1) The financial institution may set out the right to the unilateral modification of interest rates, fees and charges, adversely affecting the consumer, among its general terms and conditions ... [in accordance with the law]. This contractual provision cannot, in itself, be qualified as unfair.","(2) ... any unlawful contractual provision relating to the unilateral amendment of a contract is deemed null and void. The court initially assesses whether the provision set out among the general terms and conditions of a contract infringes any legal provisions.","The contractual provision is also deemed null and void if, while it does not infringe legal regulations, one or more terms \u2013 the substance thereof \u2013 giving cause to the unilateral amendment of the contract grants an unreasonable and unilateral advantage to the financial institution and is disadvantageous for the consumer as it breaches the requirement of good faith and fairness and is, therefore, unfair within the meaning of section 209(1) of [the old Civil Code].","(3) The unfairness of a term, the substance of which is defined exhaustively by law, is not open to judicial review. If the mandatory ... legal provision is further specified by the parties, or if the parties derogate from the dispositive [non-mandatory] legal provisions, the unfairness of such a condition may be assessed.","...\u201d","11. The K\u00faria held that provided that the term relating to the unilateral amendment of the contract was not unlawful it was to be considered unfair, if it failed to comply with the seven principles listed in its opinion, which were substantially the same as those later set down in the Uniformity Act (see section 4(1) of that Act cited in paragraph 51 below). The K\u00faria went on to explain that an invalid contractual term according to the list of principles did not have legal effect. The courts were required of their own motion to determine whether the impugned general terms of contract were invalid, and whether their invalidity could be determined on the basis of available evidence. Furthermore, it stipulated that \u201cwhen this [was] necessary for the settlement of dispute proceedings brought by the consumer or by collective action\u201d, the court was \u201crequired to examine whether the contractual term relating to unilateral amendment was unlawful or unfair regardless of whether the financial institution had actually applied such term and even if the term [was] no longer in force\u201d.","12. Lastly, on 16 June 2014 the K\u00faria delivered Civil Law Uniformity Decision no. 2\/2014 (hereinafter \u201cthe Uniformity Decision\u201d). The K\u00faria held, inter alia, that the fact that the debtor bore the risk of currency fluctuations (in exchange for obtaining favourable interest rates) did not, in itself, make the agreements invalid. However, currency spreads, as provided for in the contracts, were invalid (see B\u00e1rdi and Vidovics v. Hungary (dec.) nos. 27514\/15 and 13876\/16, \u00a7 7, 19 December 2017). Moreover, STCs enabling the unilateral amendment of contracts were also invalid unless they complied with the seven principles laid down in the previous Opinion no. 2\/2012 (see paragraph 11 above).","3. Legislative developments","13. In order to ensure that the principles laid down in the K\u00faria \u2019 s Uniformity Decision could be enforced directly, not only in pending litigation but also in connection with potential, non-litigated claims concerning consumer loan contracts, Parliament adopted three pieces of legislation. Some of these statutes were enacted also to ensure that all foreign-currency loan agreements were converted into Hungarian forints and that settlements between the consumer and the financial institution \u2013 in respect of unfairly collected sums from exchange-rate spreads and costs that had arisen from unfair unilateral amendments \u2013 were implemented in accordance with the guidance of the K\u00faria and with pending court actions being meanwhile put on hold.","14. Act no. XXXVIII of 2014 on the resolution of questions relating to the Uniformity Decision concerning the settlement of certain issues relating to loan contracts between consumers and financial institutions (\u201cthe Uniformity Act\u201d, see paragraphs 49 to 53 below) provided that certain contractual terms which had not been negotiated, namely STCs, and which allowed the possibility to increase interest rates, fees and costs unilaterally, would be presumed unfair. It also defined the procedure by which the presumption of unfairness could be rebutted. Such presumption could be rebutted by proving that the impugned STCs complied with the seven principles listed in Opinion no. 2\/2012 (see paragraph 11 above). The Uniformity Act provided that STCs allowing the unilateral increase of interest rates, fees and costs should be considered void if the financial institution in question had not lodged a legal action in order to prove their fairness, or if a court had rejected such a legal action or if a court had declared such STCs void following proceedings instituted by the Hungarian National Bank. In such situations, the financial institution was obliged to settle the accounts with the consumer (see paragraph 15 below).","15. Act no. XL of 2014 on the rules of settlement laid down in the Uniformity Act (\u201cthe Settlement Act\u201d), which entered into force on 1 November 2014, regulated settlements between consumers and financial institutions resulting from the application of the Uniformity Act. Under the Settlement Act, the calculation of the amount due to the consumer or the amount to be set off against his or her outstanding obligations vis \u00e0 vis the financial institution was to be provided by the latter. However, the consumer had the right to challenge the calculation, first by complaining to the financial institution and then, if necessary, by lodging a claim with the Financial Arbitration Body.","16. Act no. LXXVII of 2014 on changing the currency of consumer loan agreements denominated in foreign currency (\u201cthe Currency Conversation Act\u201d), which entered into force on 6 December 2014, provided for the foreign-currency loan agreements to be converted into Hungarian \u2011 forint loans, using a defined exchange rate.","4. Proceedings initiated by the applicant companies","17. In the decisions outlined below, the domestic courts found the relevant STCs applied by the applicant companies unfair and thus declared them null and void. As a result, those STCs ceased to be part of individual consumer contracts and consumers were entitled to reclaim amounts they had previously paid under those terms.","a. Merkantil Car Zrt. (application no. 22853\/15) and Merkantil Bank Zrt. (application no. 22858\/15)","18. On 18 August 2014 the applicant companies, Merkantil Car Zrt. and Merkantil Bank Zrt. , lodged applications with the Budapest High Court, seeking to prove that the STCs used in their loan contracts to which the Uniformity Act applied were fair. The court dismissed their statements of claim as incomplete and on 28 August 2014 the applicant companies resubmitted the statements of claim, together with appendices, including extensive documentation concerning terms and conditions, as well as applicable fees and other provisions relevant to the proceedings. In particular, they attempted to prove the fairness of three STCs, arguing that all seven principles laid down in section 4(1) of the Uniformity Act had been complied with, and arguing that certain other STCs fell outside the scope of the Uniformity Act. They also argued that their rights had been violated, in particular as the legislation had been applied retroactively, its provisions were unclear and the K\u00faria had overstepped its powers by setting up new legal standards in the Uniformity Decision. The applicant companies requested that the court initiate constitutional review proceedings in respect of sections 4(1), 7(7)(a), 10(3)-(4) and section 11 of the Uniformity Act and the Uniformity Decision. Furthermore, they requested that the court initiate the preliminary ruling procedure before the Court of Justice of the European Union (\u201cthe CJEU\u201d). In the alternative, they requested that the court declare the contractual terms in question fair and valid.","19. The respondent submitted two statements of defence, the second one two days before the first hearing.","20. On 10 September 2014 the Budapest High Court held two hearings, during which counsels for the parties presented their oral pleadings. Two weeks later, after reviewing the STCs in question, the court delivered decisions finding that the STCs in question failed to comply with one or more of the seven principles set out in the Uniformity Act. The court dismissed the requests for the initiation of proceedings before the Constitutional Court and the CJEU, emphasising that the dispute could be decided by the sitting court and that no issue of unconstitutionality arose in the course of applying such provisions.","21. On 30 September 2014 the applicant companies appealed against the decision to the Budapest Court of Appeal. The latter upheld the decisions of the court of first instance with respect to both the compatibility of the impugned provisions with the Fundamental Law and the unfairness of the contractual terms. In particular, the court held that the Uniformity Act did not define new grounds of invalidity but codified the uniform judicial practice concerning section 209(1) of the old Civil Code (see paragraph 42 below). It further considered that the case did not require a preliminary ruling by the CJEU. The court reviewed the STCs in question only in terms of the requirement of transparency, upholding the decision regarding their unfairness.","22. On 12 and 13 November 2014 the applicant companies applied for a review of the above decisions before the K\u00faria. On 18 December 2014 the latter upheld the second-instance decisions, finding, inter alia, that it sufficed to establish non-compliance with only one of the seven principles defined in the Uniformity Act and that in such case the remaining principles did not need to be examined.","b. OTP Jelz\u00e1logbank Zrt. (application no. 33424\/15) and OTP Bank Nyrt. (application no. 33426\/15)","23. On 18 August 2014 the applicant companies, OTP Jelz\u00e1logbank Zrt. and OTP Bank Nyrt. , lodged applications with the Budapest High Court, seeking to prove the fairness of the STCs used in the loan contracts to which the Uniformity Act applied. On 5 September 2014 they re-submitted their claims, together with extensive appendices. The applicant companies argued that the STCs they had applied in the relevant period had complied with all seven principles defined in section 4(1) of the Act, and asked the court to declare that certain contractual terms did not fall within the scope of the Act. The applicant companies also requested that the court initiate constitutional review proceedings and the preliminary ruling procedure before the CJEU. They relied on arguments similar to those put forward by Merkantil Car Zrt. and Merkantil Bank Zrt. in the above-mentioned proceedings (see paragraph 18 above). In the alternative, they requested that the court declare the contractual terms in question fair and valid.","24. On account of the partly identical STCs applied by the applicant companies OTP Jelz\u00e1logbank Zrt. and OTP Bank Nyrt. , on 8 September 2014 the court decided to merge the respective proceedings. On the same day, the respondent submitted its first statement of defence. The respondent submitted its second statement of defence on 11 September 2014.","25. On 12 September 2014 the court held its first hearing and decided to suspend the proceedings and to seek a constitutional review of certain provisions of the Uniformity Act. It invoked Articles B(1) (rule of law), E (European integration), XXVIII.(1) (right to a fair trial) and 26(1) (judicial independence) of the Fundamental Law.","26. Following the Constitutional Court \u2019 s decision of 11 November 2014, finding that the Uniformity Act complied with the Fundamental Law (see paragraphs 35 to 39 below), the Budapest High Court held its second hearing on 21 November 2014. Two weeks later, on 5 December 2014, the court delivered a judgment. It found that some of the STCs referred to by the two applicant companies fell outside of the scope of the Uniformity Act and that the remaining STCs did not comply with one or more of the seven principles set out in section 4(1) of that Act.","27. Both the applicant companies and the Hungarian State lodged appeals, which were dismissed as unfounded on 8 January 2015. The second-instance court found the respondent \u2019 s appeal partly well-founded and it partly modified the reasoning of the first-instance judgment to widen the scope of STCs which were to be considered unfair. The applicant companies subsequently submitted an application for review to the K\u00faria.","28. On 24 February 2015 the K\u00faria upheld the lower court \u2019 s judgment. It held that several STCs referred to by the applicant companies fell outside the scope of the Uniformity Act and that the remaining STCs failed to meet the requirements of clear and intelligible wording and transparency. It also found the Uniformity Act to be compatible with relevant European Union law and therefore dismissed the request for the institution of the preliminary ruling procedure.","c. OTP Ingatlanl\u00edzing Zrt. (application no. 33737\/15)","29. On 18 August 2014 the applicant company OTP Ingatlanl\u00edzing Zrt. lodged an application with the Budapest High Court, seeking to prove the fairness of the relevant STCs used in its loan contracts. On 5 September 2014 it resubmitted its claims including extensive appendices.","30. The respondent submitted its first statement of defence on 10 September 2014. It submitted its second statement three days before the first hearing. The first hearing was held on 15 September 2014. The court decided to suspend the proceedings and seek a constitutional review of certain sections of the Uniformity Act.","31. Following the Constitutional Court \u2019 s decision of 11 November 2014 (see paragraphs 35 to 39 below), the High Court held its second hearing on 28 November 2014. Two weeks later, on 12 December 2014, it delivered a judgment. The court held that some of the STCs referred to by the applicant company fell outside of the scope of the Uniformity Act and that the remaining STCs did not comply with one or more principles set out in section 4(1).","32. On 8 January 2015 the Budapest Court of Appeal dismissed the applicant company \u2019 s appeal as unfounded.","33. Subsequently, the applicant company applied to the K\u00faria for a review. On 26 February 2015 the K\u00faria delivered a partial judgment, remitting certain issues to the second-instance court for new proceedings. The Court of Appeal delivered its second judgment on 24 March 2015 finding that some of the contractual terms referred to by the applicant company fell outside the scope of the Uniformity Act and that the remaining STCs failed to meet the requirements of clear and intelligible wording and transparency.","34. The applicant company applied to the K\u00faria for a review of the second judgment. The application was rejected by the K\u00faria on 27 April 2015.","5. The Constitutional Court \u2019 s decision of 11 November 2014","35. On 11 November 2014 the Constitutional Court issued Decision no. 34\/2014 (XI.14), in which it assessed the compatibility of the Uniformity Act, in particular section 1(1), (2), (3), (6) and (7), sections 4 to 15 and section 19 with the Fundamental Law. The Constitutional Court ruled by majority that the impugned legal framework did not contradict the principle of the rule of law and did not violate the right against retroactive legislation or the right to a fair trial. It found, inter alia, that section 210(3) of the old Credit Institutions Act (see paragraph 47 below), which was a lex specialis, allowed the unilateral modification of contractual terms governing interest rates, fees and other issues in a manner that was disadvantageous to the client. This, however, was only \u201ca type of enabling provision\u201d and it could not be said that the legislature had defined a contract term which \u201ccould not amount to being unfair\u201d. The Constitutional Court noted that the statutory requirement of good faith and fairness had, from the beginning, imposed a limit on unilateral contract modifications based on the enabling rule. The enabling provision of the old Credit Institutions Act did not repeal or suspend the requirements of fairness and fair dealing. In the Constitutional Court \u2019 s view, the Uniformity Act did not contain new substantive provisions that were applicable retroactively; Parliament had merely \u201cenacted in the form of an Act of Parliament \u2013 and thus elevated to the level of a statute \u2013 an interpretation developed and made mandatorily applicable in the practice of the European and domestic courts\u201d. In particular, it held as follows:","\u201cThe [Uniformity] Act did not change the evaluation under the old (and the new) [Civil Code] provisions and the principles laid down by the K\u00faria of the fairness of the contract stipulations at issue; it merely specified, within the statutory framework of the general clause, the ab ovo existing content of the general clause. ...[Opinion No. 2\/2012] expressed the same view, namely that \u2018 to establish the unfairness of a general contract term under the provisions of the old Civil Code in force at the time of the conclusion of the contract on a ground which later \u2013 in light of, for example, the experience gained from the related court practice \u2013 is mandatorily regulated under a separate Act, does not violate the prohibition of retroactive application of the law.\u201d","36. The Constitutional Court thus found that the impugned provisions, which had entered into force after the conclusion of the contracts, \u201ccontained no such elements that [might] have been unknown to the parties\u201d. It pointed out that \u201ca finding of legal invalidity necessarily affect[ed] the contract as of the date of its conclusion\u201d because \u201cinvalidity inherently contain[ed] the element that the contract, or part of the contract, suffered from some \u2018 legal defect \u2019 already at the time of its conclusion\u201d.","37. The Constitutional Court went on to note that \u201c[c]onsumer loan contracts [were] typically long-term contractual relationships in which the parties [had] mutual rights and obligations\u201d. It considered that \u201cthe position that in such relationships the various claims [could not] become separately time-barred during the existence of the contract [was] constitutionally acceptable\u201d. It explained that \u201csimilarly to the solution used with respect to instalment payments in leasing contracts, in the impugned Act the legislature provided, with a view to treating the legal relationship as a single unit, an interpretation which [was] not contrary to the old Civil Code \u2019 s statute of limitations rules, namely that the limitation period [should] start to run from the date on which the contractual relationship terminate[d] under the contract\u201d.","38. As regards the restrictions on procedural rights, such as short time \u2011 limits, under the Uniformity Act, the Constitutional Court found the following:","\u201c... [T]he statutory presumption was applicable solely to contractual provisions allowing unilateral increases in interest rates, fees and costs, which constituted a minor, clearly identifiable part of the general contractual terms. The identification of these elements, even in the case of a contract term of approximately 10 years \u2019 duration, did not pose such a problem which would make it impossible to bring an action ... with the time-limit. Moreover, the Act precisely specified the principles to be complied with by contractual provisions which had already been applied to certain contracts in ongoing lawsuits, based on which ... [the Opinion no. 2\/2012] and the Uniformity Decision had been adopted ... Some of the principles leave no room for discretion [e.g. point b): whether a list of grounds exists and if it does, whether it is exhaustive], whereas the adjudication of other issues falls within the discretion of the courts [e.g. point a): whether the wording of the general contract term at issue is clear and intelligible for the consumer]. Persuasive arguments and a detailed analysis of the contractual provisions were to be submitted basically only in respect of these latter elements.\u201d","39. As regards the need for the introduction of the Uniformity Act, the Constitutional Court expressed the following view:","\u201c... [A]ccording to the information provided by the minister of justice, those applying the law and the legislature were to expect the lodging of some 1.8 million civil lawsuits \u2013 as compared to 160,000, which is the average annual number of new civil lawsuits \u2013 which would have resulted in a caseload increase that would have paralysed the administration of justice for a long time. Therefore, the legislative intervention whereby a very great number of individual lawsuits could be replaced by some sui generis proceedings which allowed the financial institutions to rebut the presumption and which thus prevented the operation of the courts from being frustrated, cannot be regarded as State interference violating the requirement of legal security.\u201d","... [C]ourts are able to secure the enforcement of consumer protection laws only in individual cases; in the event of problems affecting the whole society, the State must interfere and provide a solution, even via legislation. The very fact that in respect of a given contractual provision the State has taken over claim enforcement from the consumer and from the entity entitled to lodge an action in the public interest is in harmony with the constitutional requirement of consumer protection.","... [T]he interpretation that, where unfair contractual terms exist in great numbers, a member State \u2019 s [right to interfere] ... via legislation ... in the interest of consumers, can also be inferred from the aim set forth in Directive 93\/13\/EEC.\u201d","B. Relevant domestic and European Union law and practice","1. Government Decree No. 275\/2010 (XII. 15)","40. Government Decree No. 275\/2010 (XII.15) on the unilateral amendment of interest rates agreed in a contract was in force between 18 December 2010 and 31 January 2015. Under the decree, the financial institution could unilaterally modify the interest rate in loan contracts to the disadvantage of the customer on certain conditions, which were listed in the decree and which concerned circumstances actually affecting the rate of interest ( such as certain adverse changes to the financing costs of the creditor and its ability to obtain funds).","2. Old Civil Code","41. As regards contractual relationships, pursuant to Act No. IV of 1959 on the Civil Code as amended (\u201cthe old Civil Code\u201d), the limitation period should start to run from the date on which the contractual relationship terminated.","42. In the period between 1998 and 2006 section 209 of the old Civil Code provided that the injured party could challenge the general terms in court if he or she considered them to be unfair.","43. As of 1 March 2006 the amended section 209 of the old Civil Code provided that the general terms were to be considered unfair if the rights and obligations of the parties arising from the agreement were stipulated, in breach of the requirement of good faith and fairness, in such a way that they gave unreasonable and unilateral advantage to the party who set the terms and conditions, to the detriment of the other party. Furthermore, a new section 209\/A provided for the conditions under which the injured party could challenge allegedly unfair STCs in court. It read as follows:","\u201c(1) A contractual term incorporated into the contract as a standard contract term may be challenged as unfair by the injured party.","(2) An unfair contractual term drafted in advance by the party entering into a contract with a consumer and not negotiated individually but incorporated into the contract as a standard contract term, shall be considered null and void. The contract may only be annulled in the consumer \u2019 s interest.\u201d","44. As of 2009 section 209 was amended and supplemented. It provided, as far as relevant, as follows:","\u201c(1) A standard contract term or a term which has not been individually negotiated in a consumer contract shall be regarded as unfair if, in breach of the obligation to act fairly and in good faith, it unilaterally and unjustifiably establishes the contractual rights and obligations of the parties to the detriment of the co-contractor of the party imposing the contractual term in question.","(2) The unfairness of a contractual term shall be assessed by taking into account the nature of the services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.","(3) Other legal regulations may define the contractual terms and conditions that are regarded to be unfair in respect of a consumer contract or that shall be regarded as unfair until proven otherwise.","(4) A standard contractual term or a term which has not been individually negotiated in a consumer contract shall also be regarded as unfair simply on the grounds that it is not [drafted] in plain intelligible language.","...","(6) Contractual terms determined in a statute or in accordance with a statutory provision shall not be deemed unfair.\u201d","3. New Civil Code","45. Act No. V of 2013 on the Civil Code (hereinafter \u201cthe new Civil Code\u201d), provides, in so far as relevant, as follows:","Section 6:103","\u201c...","(2) As regards contracts between a consumer and a business party, a standard contract term or any contract term which has been drafted in advance by the business party and which has not been individually negotiated shall be regarded as unfair if it is not drafted in plain and clearly understandable language, solely on that basis.","(3) Any unfair contract term that has been incorporated into a contract between a consumer and a business party shall be considered null and void. The right to have the term declared null and void may be invoked in favour of the consumer.\u201d","Section 6:104","\u201c...","(2) In contracts between a consumer and a business party a contractual term shall, in particular, be considered unfair, until proven otherwise, if its object or effect is to:","...","d) enable a business party to alter the contractual terms unilaterally without a valid reason which is specified in the contract, in particular to increase the monetary consideration fixed in the contract, or to allow the business party to alter unilaterally the terms of a contract where there are serious grounds laid down in the contract for doing so, provided that in such cases the consumer is not free to withdraw from or to terminate the contract;","...\u201d","4. Old Credit Institutions Act","46. The relevant part of section 210 of Act CXII of 1996 on Credit Institutions and Financial Enterprises, as in force after the amendment introduced by Act No. CL of 2009 Amending Certain Finance-Related Acts of Parliament (hereinafter \u201cthe old Credit Institutions Act\u201d), provided:","\u201c...","(2) The agreement for supplying financial services and for engaging in activities auxiliary to financial services must clearly indicate the interest rates, fees and all other charges and conditions, including the legal consequences of any default in payment, and the procedure for the enforcement of collateral obligations made in security of the contract and the legal ramifications involved.","(3) In loan contracts with consumers and in financial leasing agreements only the interest rate, fees and commissions may be changed unilaterally to the disadvantage of the customer. Other conditions, including a list of the grounds substantiating the unilateral modification of the terms and conditions of the contract may not be altered unilaterally to the disadvantage of the customer. The creditor shall be able to exercise the right of unilateral modification if the objective reasons giving grounds for modification are fixed in the contract, and if the creditor has committed its pricing criteria in writing.","...","(6) Having regard to the contracts mentioned in subsection (3) above, any changes applied unilaterally regarding interest rates, fees or commission ..., if to the disadvantage of customers, shall be published by way of posted notice sixty days prior to the operative date of such changes. ...","...\u201d","47. On 27 November 2010 Parliament amended the old Credit Institutions Act by adding a new section 210\/A, which applied to loan and credit agreements and financial leasing arrangements for housing purposes. The new provision prohibited the amendment of such agreements by financial institutions to the disadvantage of the consumer, declaring any such amended terms null and void, except \u201cin respect of the interest rate and only in cases and under the terms and conditions specified by a government decree, and if justified by changes in the central bank base rate, in the refinancing rates, money-market indices and the interest rates of credit institutions on fixed-term deposits, by changes decreed by the Government in the regulatory framework or in the assessment of credit risk.\u201d","48. Under section 235(1) of the old Credit Institutions Act the Government was empowered to issue detailed regulations concerning the cases and the terms and conditions under which a financial institution could be authorised to unilaterally modify the interest rates of the agreements referred to in section 210\/A of the Act to the disadvantage of the consumer.","5. The Uniformity Act","49. The Uniformity Act (see paragraph 14 above) was enacted by Parliament on 4 July 2014 and promulgated by the President of the Republic on 18 July 2014. The Uniformity Act applies to consumer loan contracts concluded between 1 May 2004 and the entry into force of the Act, namely 19 July 2014. The Act pertains to consumer loan contracts denominated in foreign currency or forints, as well as to certain financial leasing contracts (section 1 of the Uniformity Act). The Act establishes that STCs allowing the unilateral increase of interest rates, fees and costs should be presumed to be unfair unless they can be proved to comply with all of the seven principles set forth in Opinion no. 2\/2012 (see paragraphs 10 and 11 above) and enumerated in section 4 (1) of the Act (see paragraph 51 below).","50. Pursuant to section 4(2) of the Uniformity Act, it was for a financial institution to prove that the relevant STCs complied with the aforementioned seven principles and were therefore fair. For that purpose, the financial institution had to institute proceedings against the State, rather than against its individual clients.","51. The following provisions of the Uniformity Act are particularly relevant:","1. General provisions","Section 1","\u201c(1) This Act applies to consumer loan agreements concluded between 1 May 2004 and the date of entry into force of this Act. In the application of this Act the concept of consumer loan agreement shall cover any foreign exchange based (linked to, or denominated in, a foreign currency and repaid in forints) or forint based credit or loan agreement, financial leasing agreement concluded between a financial institution and a consumer, if it incorporates standard contract terms containing a clause provided for in Subsection (1) of Section 3 or Subsection (1) of Section 4 or any contract term which has not been individually negotiated.","(1a) In the application of this Act the concept of consumer loan agreement shall - in addition to what is contained in Subsection (1) - cover any foreign exchange credit or loan agreement, financial leasing agreement not qualifying as foreign exchange based, between a financial institution and a consumer, if concluded between times provided for in Subsection (1) hereof, and it incorporates standard contract terms containing a clause provided for in Subsection (1) of Section 4 or any contract term which has not been individually negotiated.\u201d","...","(6) In respect of claims arising out of consumer loan agreements, the provisions of Act IV of 1959 on the Civil Code regarding the statute of limitation shall be interpreted in such a manner that during the existence of the loan contract, the claims do not lapse; the limitation period starts to run upon termination of the contract.\u201d","4. Resolution of contract terms allowing the possibility to alter the terms of the contract unilaterally","Section 4","\u201c(1) As regards consumer loan agreements allowing for the possibility to alter the terms of the contract unilaterally, any term \u2013 with the exception of contract terms which have been individually negotiated \u2013 that creates a right to increase the interest rate and other costs and fees unilaterally is deemed to be unfair, given that it does not comply with:","a) the principle of clear and intelligible wording, where the term in question is neither plain nor understandable for the consumer;","b) the principle of detailed specification, where the conditions for amending the terms of the contract unilaterally are not specified in detail, that is to say the reasons are not listed, or the reasons supplied are merely indicative;","c) the principle of objectivity, where the conditions for amending the terms of the contract unilaterally lack objectivity, that is to say the party with whom the consumer is entering into a contract is able to cause such conditions to occur, and has the power to incite such conditions and to influence the extent of any change that may serve as grounds for substantiating the amendment;","d) the principle of effectiveness and proportionality, where the circumstances specified in the list of reasons do not effectively or proportionally influence the interest, costs and\/or fees;","e) the principle of transparency, where the consumer was not in a position to foresee what additional burdens would be passed on to him, nor the extent and reasons for such changes;","f) the principle of withdrawability, where the consumer does not have the right to withdraw from the contract if it is amended; or","g) the principle of symmetry, where the contract does not allow any change in the conditions that may occur to the consumer \u2019 s benefit to take effect for the consumer \u2019 s benefit.","(2) The contract terms referred to in subsection (1) hereof shall be deemed null and void if the financial institution has failed to lodge a civil action within the time-limit specified in section 8(1), or if the court dismisses the action or terminates the proceedings ...","...","(3) In the case provided for in subsections (2) and (2a), the financial institution shall settle accounts with the consumer as provided for in the relevant legislation.\u201d","5. Examination of standard contract terms and terms not individually negotiated","Section 5","\u201c(1) Financial institutions shall review within thirty days of the date of entry into force of this Act those standard contractual terms and any contract term which has not been individually negotiated (hereinafter referred to as \u201cSTCs\u201d) which form part of a consumer loan agreement allowing the possibility to alter the terms of the contract unilaterally.","(2) Within thirty days of the date of entry into force of this Act, financial institutions shall disclose to the Hungarian National Bank, acting within its supervisory and customer-protection function (hereinafter referred to as \u201cthe Authority\u201d) all STCs that contain a contract term as provided for in subsection (1), and shall indicate whether in their view the contract term in question should be considered fair or unfair. The notification referred to above shall include the identification numbers of the contracts which contain such terms and the amount of receivables outstanding on the basis of such contracts.","(3) Financial institutions shall review by 30 November 2014 those STCs which form part of consumer loan agreements provided for in section 1(1)a), allowing the possibility to alter the terms of the contract unilaterally.","(4) Financial institutions shall disclose to the Authority by 30 November 2014 all STCs that contain a contract term, as provided for in subsection (3), and shall indicate whether in their view the contractual term in question should be considered fair or unfair, and shall disclose whether any amendment was made to the contract resulting in an increase in the interest rate, fee or commission on the basis of such contractual terms. The notification referred to above shall include the identification numbers of the contracts which contain such terms and the amount of receivables outstanding on the basis of such contracts.\u201d","Section 6","\u201c(1) If, following the review, the financial institution finds that any of the STCs it uses contains a contract term that is to be presumed unfair having regard to the provisions set out in section 4(1), but which the financial institution considers fair, the financial institution has the right \u2013 unless otherwise provided for in subsection (2) hereof \u2013 to bring a civil action in accordance with the provisions of this section for the rebuttal of the presumption.","(2) In the case of forint-based consumer loan agreements, or consumer loan agreements provided for in section 1(1)a), STCs published after 26 November 2010, and amendments to previous STCs published after 26 November 2010 need not be presumed unfair, having regard to the provisions set out in section 4(1). ...\u201d","6. Civil action","Section 7","\u201c(1) The actions provided for in this section shall be governed by the provisions of Act III of 1952 on the Code of Civil Procedure (hereinafter referred to as \u201cthe CPC\u201d), subject to the exceptions set out in this section.","(2) In such actions the Hungarian State is the defendant ...","(3) In such actions legal representation is mandatory.","(4) The court shall hear such cases in priority proceedings.","...\u201d","Section 8","\u201c(1) The statement of claim of a financial institution for initiating the ... [proceedings] referred to in section 6 shall be received by the court, if the STCs at issue:","a) was used in a foreign-exchange (linked to, or denominated in, a foreign currency and repaid in forints) credit or loan agreement, or financial leasing agreement, within thirty days of the date of entry into force of this Act;","b) was used in a forint-based credit or loan agreement, or financial leasing agreement, on 26 November 2010 or previously, between 5 January and 12 January 2015;","c) was used in a consumer loan agreement as provided for in section 1(1a), on 26 November 2010 or previously, between 5 January and 12 January 2015. ...","(3) Subject to the exception provided for in subsection (3a) hereof, financial institutions shall apply for a review of all STCs they use so as to determine their validity in accordance with the criteria provided for in section 4(1) in a single statement of claim. The statement of claim shall, inter alia, indicate the period during which the financial institution applied the contract term in question.","(3a) Financial institutions shall apply for a review of all such STCs they use so as to determine their validity in accordance with the criteria provided for in section 4(1) in a single statement of claim; the statement of claim shall be received by the court between 5 January and 12 January 2015. The statement of claim shall indicate, inter alia, the period during which the financial institution applied the contract term in question.","(4) An application lodged by a financial institution shall be limited to the establishment of the provisions of section 11(3).","(5) In addition to the provisions of subsections (2) and (3) of section 121 of the CPC, an abstract of the STCs provided for in subsection (3) hereof, set out in the form of a single document, shall be enclosed with the statement of claim, containing only the contractual terms which the financial institution is seeking to be confirmed as valid, indicating also the periods during which the financial institution applied the contractual terms in question. Apart from the contractual terms in question, the abstract shall indicate those facts and evidence which the financial institution alleges to support the request made in the statement of claim. Furthermore, an electronic data medium shall also be enclosed in a format that can be edited with the statement of claim containing a version of the statement of claim and its enclosures processed by means of information technology equipment.","(6) If the application is dismissed under section 130 of the CPC, the legal facilities stemming from the submission of the statement of claim shall remain in force if the plaintiff resubmits the statement of claim within five days of the effective date of the relevant decision in accordance with the relevant regulations.","...\u201d","Section 11","\u201c(1) In the proceedings the court will only consider whether the contract term which the financial institution considers fair is in fact fair in accordance with the requirements set out in section 4(1).","(2) If the court finds that the contract term which the financial institution considers fair fails to comply with any of the requirements set out in section 4(1), and therefore the contract term in question is unfair, it shall dismiss the action.","(3) If the court finds that the contract term which the financial institution considers fair is in compliance with all of the requirements set out in section 4(1), it shall declare the contract term in question fair, and as such applicable.\u201d","7. Pending lawsuits","Section 16","\u201c(1) ... The court shall ex officio suspend, until the measure provided for in other specific legislation has been taken, at the latest until 31 December 2014, proceedings in respect of lawsuits having as their object, in part or in whole, the contract terms referred to in [this Act], or proceedings instituted by a financial institution against a consumer for the enforcement of a claim based on, inter alia, such contract term. ...","(2) ... The court shall also ex officio suspend, until the measure provided for in other specific legislation has been taken, at the latest until 31 December 2015, proceedings in respect of lawsuits having as their object, in part or in whole, the contract terms referred to in [this Act], or proceedings instituted by a financial institution against a consumer for the enforcement of a claim based on, inter alia, such contract term, if the ... contract term ... figures in a ... consumer loan contract ...\u201d","52. Furthermore, the following rules set out in the Uniformity Act are relevant:","- The court must adjudicate the case within thirty days (section 9(3)).","- The hearing must be scheduled so as to allow at least three days to elapse from the time the statement of claim is delivered to the respondent to the date of the hearing (section 10(1)).","- The hearing must be scheduled within eight days of the date when the statement of claim was delivered to the court (section 10(1)(2)).","- The hearing may be postponed once, for a maximum of seven days, but only if it is deemed necessary in order for the parties to present their evidence (section 10(4)).","- The court may not postpone the promulgation of the judgment for more than fifteen days (section 12(1)).","- Unless the court has postponed its promulgation, the decision of the first-instance court must be given in writing within eight days of the date on which it was adopted, and must be served by process within three days of the date on which it was put in writing (section 12(2)).","- The time-limit for appeals is eight days from the time of service of the decision (section 13(1)).","- The court must adjudicate the appeal within thirty days (section 13(4)).","- The hearing must be scheduled so as to allow at least three days to elapse from the time the appeal is delivered to the adverse party to the date of the hearing (section 13(5)).","- The court must fix the date of the hearing within fifteen days of the date on which the documents were received by the court of second instance (section 13(6)).","- The hearing may be postponed once, for a maximum of seven days (section 13(7)).","- Unless the court has suspended the proceedings, the decision concluding the second-instance proceedings must be put in writing within eight days of the date on which it was adopted. The court of second instance must serve its decision on the parties within three days (section 14(1)).","- An application for review must be submitted to the court that adopted the second-instance decision within eight days of notification of the decision (section 15(1)).","- The K\u00faria must conduct the review within thirty days (section 15(1)).","- Unless the K\u00faria has postponed its promulgation, the decision completing the review process must be put in writing within eight days and the K\u00faria must serve it on the parties within three days (section 15(6)).","53. The explanatory memorandum to the Uniformity Act contains the following passage:","\u201cIn order to ensure that those principles are enforced directly, the present Act codifies the principles laid down in the K\u00faria \u2019 s Uniformity Decision. The Act makes the K\u00faria \u2019 s interpretation applicable to everyone. It does not create any new substantive laws or new principles in respect of consumer loan and leasing agreements, but purely codifies the interpretation of the K\u00faria. This is to ensure that a high number of consumers avoid lengthy and costly litigation that would, in any event, overburden the judicial system.\u201d","6. Unfair Contractual Terms Directive of 1993","54. Council Directive 93\/13\/EEC of 5 April 1993 on unfair terms in consumer contracts (hereinafter \u201cthe Unfair Terms Directive\u201d) protects consumers in the European Union (\u201cthe EU\u201d) from unfair terms and conditions which might be included in a standard contract for goods and services they purchase. Member States of the EU were obliged to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than 31 December 1994. Hungary joined the EU on 1 May 2004.","55. The Unfair Terms Directive provides, as far as relevant, as follows:","Article 1","\u201c1. The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.","2. The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.\u201d","Article 3","\u201c1. A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties \u2019 rights and obligations arising under the contract, to the detriment of the consumer.","...","3. The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair. \u201d","Article 4","\u201c1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.","2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other, in so far as these terms are in plain intelligible language.\u201d","Article 5","\u201cIn the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language. ...\u201d","Article 6","\u201c1. Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.","...\u201d","Article 7","\u201c1. Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.","...\u201d","Article 8","\u201cMember States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.\u201d","56. The \u201cAnnex\u201d referred to in Article 3 (3) of the Unfair Terms Directive provides a list of terms which may be considered unfair. It includes any term intended to enable the seller or supplier to alter the terms of the contract unilaterally, or any term having that effect, without a valid reason being specified in the contract.","57. Furthermore, the Court of Justice of the European Union (\u201cthe CJEU\u201d) has interpreted the aforementioned Directive in a number of cases. Most notably, in its judgment of 21 November 2002 in Cofidis SA v. Jean \u2011 Louis Fredout, C-473\/00, EU:C:2002:705, the CJEU held:","\u201c32 It must be noted that the Court ruled in paragraph 28 of Oc\u00e9ano Grupo Editorial and Salvat Editores that the court \u2019 s power to determine of its own motion whether a term is unfair constitutes a means both of achieving the result sought by Article 6 of the Directive, namely preventing an individual consumer from being bound by an unfair term, and of contributing to achieving the aim of Article 7, since if the court undertakes such an examination, that may act as a deterrent and contribute to preventing unfair terms in contracts concluded between consumers and sellers or suppliers.","33 That power of the court has been regarded as necessary for ensuring that the consumer enjoys effective protection, in view in particular of the real risk that he is unaware of his rights or encounters difficulties in enforcing them ....","34 The protection which the [Unfair Terms] Directive confers on consumers thus extends to cases in which a consumer who has concluded with a seller or supplier a contract containing an unfair term fails to raise the unfair nature of the term, whether because he is unaware of his rights or because he is deterred from enforcing them on account of the costs which judicial proceedings would involve.","35 It is therefore apparent that, in proceedings aimed at the enforcement of unfair terms brought by sellers or suppliers against consumers, the fixing of a time-limit on the court \u2019 s power to set aside such terms, of its own motion or following a plea raised by the consumer, is liable to affect the effectiveness of the protection intended by Articles 6 and 7 of the Directive. To deprive consumers of the benefit of that protection, sellers or suppliers would merely have to wait until the expiry of the time \u2011 limit fixed by the national legislature before seeking enforcement of the unfair terms they would continue to use in contracts.","...\u201d","58. As regards the nature of the \u201cAnnex\u201d (see paragraph 56 above) the CJEU found in its judgment of 7 May 2002 in Commission v. Sweden, C \u2011 478\/99, EU:C:2002:281, that it \u201cis not disputed that a term appearing in the list need not necessarily be considered unfair and, conversely, a term that does not appear in the list may none the less be regarded as unfair.\u201d"],"116":["5.The applicant was born in 1981 and lives in the Ventspils district.","A.The applicant\u2019s imprisonment and the applicable prison regime","6.On 6 December 2001 the applicant was convicted of kidnapping, aggravated murder and aggravated extortion and sentenced to twenty years\u2019 imprisonment. This judgment was upheld at two levels of appeal and took effect in 2002.","7.In accordance with section 504(1) of the Sentence Enforcement Code (Latvijas Sodu izpildes kodekss), the applicant was placed at the maximum\u2011security level in a closed prison.","8.On an unspecified date the applicant was transferred to the medium\u2011security level of that closed prison.","9.According to the applicant, in 2008 he realised that there was a difference in the respective treatment of male and female inmates with regard to the execution of custodial sentences. Male inmates who had been convicted of serious crimes started serving their sentences in closed prisons, while female inmates who had been convicted of the same crimes started serving their sentence in partly-closed prisons. As the applicant considered that this had a notable impact on restrictions of various prisoners\u2019 rights, he lodged complaints about this issue with several State institutions.","10.On 30 September 2008 the applicant was informed that his father had died. On 2 October 2008 he requested permission to leave prison in order to attend his father\u2019s funeral. On the same day the prison director replied that he had no authority to allow the request, as the applicant was serving his sentence at the medium-security level of a closed prison. Under the Sentence Enforcement Code only prisoners serving their sentence at the medium- or minimum- security level in partly-closed prisons were eligible for such leave.","11.In the years 2012-2015 the applicant was granted one prison\u2011leave day per year. The case file contains no information as to the type of prison and security level in which the applicant served his sentence during this time.","12.On 11 September 2015 the applicant was conditionally released.","B.Review of the applicant\u2019s complaints","1.Ministry of Justice","13.On 1 July 2008 the Ministry of Justice examined the applicant\u2019s complaint about the difference in treatment between convicted men and women. It referred to sections 504(1) and 505(1) of the Sentence Enforcement Code and observed that the legislature had chosen to create different legal frameworks in respect of sentence execution for men and women. The Ministry of Justice concluded that there was no discrimination on the grounds of sex because the rights of both male and female inmates were restricted, and both sexes were deprived of their liberty.","2.The Ombudsperson","14.On 25 October 2010 the Ombudsperson concluded the examination of the applicant\u2019s complaint about the refusal to allow him to attend his father\u2019s funeral. He observed that closed prisons hosted male convicts who had been sentenced to deprivation of liberty for having committed serious or especially serious crimes, as well as convicts who had been moved from partly-closed prisons for grave or systematic breaches of the regime under which they had been held. In closed prisons convicts were subjected to tightened security and maximum surveillance. It followed that the persons placed in those prisons were particularly dangerous to the society. Hence, the restriction imposed on the applicant was proportionate and necessary in a democratic society.","3.The Constitutional Court","15.On 9 July 2008 the applicant lodged a constitutional complaint, arguing that section 504(1) of the Sentence Enforcement Code was discriminatory on the grounds of sex, in breach of Article 91 of the Constitution. As women convicted of the same crimes started serving their sentence in partly-closed prisons, they were entitled to more and longer visits, more phone calls and could progress to more lenient security levels more rapidly. In addition, women could be granted leave from prison for up to seven days per year, whereas no such right was provided for men.","16.On 29 July 2008 the Constitutional Court, relying on section 20(6) of the Law on the Constitutional Court, declined to institute proceedings. It stated that the legal reasoning included in the complaint was evidently insufficient for the claim to be allowed (ac\u012bmredzami nepietiekams pras\u012bjuma apmierin\u0101\u0161anai). In particular, the applicant had failed to specify why the difference in treatment between men and women should not be acceptable.","17.On 7 August 2008 the applicant lodged a second constitutional complaint, adding that men and women who were convicted of serious and especially serious crimes were in the same circumstances in that they were both imprisoned. Yet, despite the prohibition of discrimination requiring men and women to be treated equally, their rights were restricted to a different extent. The applicant also pointed out that within the context of discrimination the burden of proof was shifted \u2013 namely, after a person had demonstrated a difference in treatment, it fell for the respondent to show that this difference had not amounted to discrimination.","18.On 5 September 2008 the Constitutional Court again declined to institute proceedings. With respect to the first sentence of Article 91 of the Constitution, which addressed the principle of equality, the Constitutional Court pointed out that the following criteria had to be examined \u2013 the existence of comparable groups, a difference in treatment between those groups, and a lack of objective and reasonable justification for that difference in treatment. As the legal reasoning advanced by the applicant was based on the assumption that men and women who had committed similarly grave crimes were in comparable situations, the Constitutional Court considered this reasoning evidently insufficient for the claim to be allowed. With respect to the prohibition of discrimination enshrined in the second sentence of Article 91 of the Constitution, the Constitutional Court pointed out that the applicant had failed to specify the human right in conjunction with which the discrimination complaint had been made. Thus, in relation to this part of the application, legal reasoning had not been provided (nav sniegts juridiskais pamatojums) and the formal requirements of a constitutional complaint had not been met. In so far as relevant, the Constitutional Court relied on sections 20(5)(3) and 20(6) of the Law on the Constitutional Court.","19.In a third constitutional complaint of 20 October 2008, the applicant added that on 2 October 2008 he had been refused permission to leave prison to attend his father\u2019s funeral. He had thereby been discriminated against on the basis of sex, as women in his situation would have been able to attend the funeral. In support of his discrimination-related complaint the applicant referred to the right to private life, right to family life, and freedom of expression.","20.On 21November 2008 the Constitutional Court declined to institute proceedings, invoking section 20(6) of the Law on the Constitutional Court. It noted that the application contained no reasoning as to why men and women who had been convicted of serious and especially serious crimes and given prison sentences would need to be subjected to the same rules of sentence enforcement \u2013 namely, how men and women were in comparable situations. On those grounds, the legal reasoning included in the constitutional complaint was held to be evidently insufficient for the claim to be allowed."],"117":["5.The applicant was born in 1980 and lives in Vrbovec.","A.Criminal proceedings against the applicant","6.On 16 July and 30 August 2013 the applicant was indicted in the Ivani\u0107-Grand Municipal Court (Op\u0107inski sud u Ivani\u0107-Gradu \u2013 hereinafter \u201cthe Municipal Court\u201d) on charges of uttering serious threats to his neighbours.","7.Following an expert report into the applicant\u2019s mental condition at the time of the commission of the alleged offences, on 2 January 2014 the relevant State Attorney\u2019s Office amended the indictments, arguing that he had committed the offences in a state of mental derangement caused by paranoid schizophrenia which he had been suffering from for a number of years. It also asked that he be placed in a psychiatric hospital in accordance with the Protection of Individuals with Mental Disorders Act.","8.In the meantime, on 26 November 2013 the Municipal Court ordered the applicant\u2019s pre-trial detention on the grounds that he might reoffend. He was detained on 30 November 2013 and on 2 December 2013 he was placed in the Zagreb Prison hospital for treatment. During the proceedings, his pre\u2011trial detention was extended several times.","9.The applicant challenged the orders for his detention before the Velika Gorica County Court (\u017dupanijski sud u Velikoj Gorici), which on 12December 2013 and 13 January 2014 dismissed his appeals as ill\u2011founded. Judge LJ.B. took part in these decisions as a member of the appeal panel of the Velika Gorica County Court.","10.On 14 January 2014 the Municipal Court found that the applicant had committed the offence of uttering serious threats against his neighbours in a state of mental derangement and that he posed a threat to others. On this basis, the court ordered his internment in a psychiatric institution, in accordance with the Protection of Individuals with Mental Disorders Act. The court also decided that he would remain detained until the judgment became final.","11.The applicant challenged the first-instance judgment by lodging an appeal with the Velika Gorica County Court. He also challenged the decision to detain him until the judgment became final.","12.On 23 January 2014 the Velika Gorica County Court dismissed the applicant\u2019s appeal against the decision to detain him until the judgment became final. Judge LJ.B. took part in this decision as a member of a three\u2011judge panel.","13.On 3 March 2014 a three-judge panel of the Velika Gorica County Court, on which Judge LJ.B. was sitting, dismissed the applicant\u2019s appeal against the first-instance judgment of the Municipal Court, which thereby became final.","14.The applicant challenged the judgment of the Velika Gorica County Court by lodging a request for extraordinary review of a final judgment with the Supreme Court (Vrhovni sud Republike Hrvatske) and a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He alleged in particular a lack of impartiality on the part of the Velika Gorica County Court, given Judge LJ.B.\u2019s previous involvement in his case.","15.On 4 June 2014 the Supreme Court dismissed the applicant\u2019s request for extraordinary review on the grounds that there was no reason to call the impartiality of Judge LJ.B into question.","16.On 20 May 2015 the Constitutional Court upheld these findings and dismissed the applicant\u2019s constitutional complaint as unfounded.","B.The applicant\u2019s involuntary placement in a psychiatric hospital","17.After the criminal court\u2019s judgment became final, on 19 March 2014 the file was forwarded to the Zagreb County Court (hereinafter \u201cthe County Court\u201d) as the court with competence to rule on the applicant\u2019s involuntary placement in a psychiatric hospital under the Protection of Individuals with Mental Disorders Act (seeparagraphs 34 and 36 below). The file also contained submissions made by F.\u017d., the applicant\u2019s lawyer in the criminal proceedings. At that time, the applicant was still being held in the prison hospital (see paragraph 8 above).","18.On the same day the County Court opened the proceedings for the applicant\u2019s committal to a psychiatric hospital. In the decision opening the proceedings, it noted that the applicant was represented by a legal aid lawyer, R.T.","19.On 21 March 2014 the County Court found that the applicant had not appointed a lawyer to represent him in the proceedings and, as legal representation was mandatory, it appointed him a legal aid lawyer, T.\u017d.","20.On 10 April 2014 it committed the applicant to Vrap\u010de Psychiatric Hospital (hereinafter \u201cthe hospital\u201d) for a period of six months, starting from 3 May 2014.","21.On 28 July 2014 the hospital asked the County Court to extend the applicant\u2019s involuntary psychiatric confinement on the grounds that the treatment had started to show positive results but had been short, so further treatment was needed.","22.Upon receipt of the request, the County Court opened the proceedings for the applicant\u2019s further involuntary placement in the hospital and appointed the legal aid lawyer T.\u017d. to represent him in the proceedings.","23.On 30 July 2014 the judge conducting the proceedings visited the applicant in the hospital. According to a note of the visit, it was possible to communicate with the applicant, he was engaged in therapeutic activities, his mother had been visiting him and he wanted to be given the possibility to take occasional therapeutic leave from the hospital. The note also indicated that T.\u017d. had attended the meeting. There is no indication that she asked any questions or otherwise addressed the applicant or the judge during the meeting.","24.On 7 August 2014 the County Court ordered an expert report from S.H., a psychiatrist from a different psychiatric hospital to the one in which the applicant was placed, concerning the possibility of granting the applicant therapeutic leave. S.H. was of the opinion that short-term therapeutic leave from the hospital could be granted.","25.On 20 August 2014 F.\u017d., the lawyer who had represented the applicant in the criminal proceedings before the Municipal Court, sent a request to the hospital for information concerning the applicant\u2019s treatment. He stressed that all his previous attempts to contact the hospital had been to no avail. He asked the hospital to consider the possibility of releasing the applicant, as his parents had been actively engaged in finding him employment. This letter appears to have only been received by the County Court on 18 December 2014.","26.Meanwhile, on 27 August 2014 the County Court held a hearing, which was attended by representatives of the hospital and the State Attorney\u2019s Office, as well as the applicant\u2019s legal aid lawyer T.\u017d. Those present at the hearing agreed that the applicant should be granted short-term therapeutic leave. The representative of the hospital reiterated its request for the applicant\u2019s further psychiatric confinement (see paragraph 21 above) and the judge conducting the proceedings read out the note of her visit to the applicant (see paragraph 23 above). The representative of the State Attorney\u2019s Office agreed with the request. The legal aid lawyer T.\u017d. also agreed with the request, and made no other submissions at the hearing.","27.On the same day the County Court ordered the applicant\u2019s involuntary hospitalisation for a further period of one year. It referred to the judge\u2019s meeting with the applicant (see paragraph 23 above) and noted that neither the representative of the State Attorney\u2019s Office nor the applicant\u2019s legal aid lawyer opposed the hospital\u2019s request. At the same time, the County Court granted the applicant therapeutic leave for the period between 28 and 31 August 2014.","28.The applicant\u2019s father, on behalf of the applicant, challenged the decision on his son\u2019s further involuntary hospitalisation before a three-judge panel of the County Court. He contended that the applicant\u2019s family had never been informed that his psychiatric confinement would be extended, and had only accidentally learned of his further confinement after inspecting the case file in the County Court. The applicant\u2019s father also complained of ineffective legal representation in the proceedings.","29.On 19 December 2014 a three-judge panel of Zagreb County Court dismissed the appeal as ill-founded on the grounds that a lawyer had been duly appointed to represent the applicant in the proceedings concerning his involuntary hospitalisation.","30.The applicant\u2019s father then lodged a constitutional complaint with the Constitutional Court, arguing that the legal aid lawyer appointed for his son in the proceedings before the County Court had acted as an extended arm of the institutions rather than a lawyer protecting his interests.","31.On 3 June 2015 the Constitutional Court dismissed the constitutional complaint, endorsing the reasoning of the three-judge panel of the County Court.","32.In the meantime, on 22 May 2015 the applicant, through his chosen representative F.\u017d., asked to be released from the hospital.","33.On 24 August 2015, following a further examination of the applicant\u2019s situation, the County Court ordered the applicant\u2019s conditional release from the hospital."],"118":["5.The applicant was born in 1962 and lives in Lipetsk.","6.On 18 September 2007 the applicant signed a private contract for the purchase of a flat in Lipetsk. The seller was Ms E.M.T., acting on behalf of herself and her daughter Maria, a minor. The contract stipulated that the property was not \u201cmortgaged, encumbered by any claims of third parties, disputed or charged\u201d.","7.The flat in question had been allocated as social housing to MsE.M.T. and her husband, Mr V.A.V., in 1979. They had lived there with their four children: Yelena, Mikhail, Dmitriy and Maria. Mikhail and Dmitriy were given long prison sentences in 1998 and 2004 respectively and were still serving them at the material time. Yelena moved out in 1997 to continue her studies in Dagestan. In 2006, Ms E.M.T and Maria became the sole owners of the property by way of privatisation, while Mr V.A.V., Mikhail, Dmitry and Yelena declined in writing to exercise their right to obtain their shares of the privatised flat.","8.As the seller Ms E.M.T. delayed submitting the contract for State registration, the applicant sought a court order upholding her full title to the property. The seller Ms E.M.T. brought a counterclaim. She submitted that she was unable to move out because the purchase of the new flat for herself and her daughter Maria had not yet been finalised. However, after MsE.M.T. failed to appear in court, on 2 April 2008 the Oktyabrskiy District Court in Lipetsk struck out the counterclaim and granted the applicant relief in the form of an order compelling State registration of her full title to the property. On 12November 2008 the title was registered.","9.The applicant then sued the former owner Ms E.M.T. and members of her family, seeking termination of their right to use the flat, annulment of the registration of their residence at that address, and their eviction.","10.On 7 April 2009 the Oktyabrskiy District Court allowed her claim in part. It ordered the eviction of Ms E.M.T. and Maria, as they were no longer owners of the property, but dismissed the claim in respect of Yelena, Mikhail and Dmitriy on the following grounds:","\u201cAccording to the parties, the contested property contains personal belongings and chattels of the defendants [Mikhail, Dmitriy and Yelena]; it appears from their written statements that, in declining their shares of the contested property during its privatisation, they did not intend to stop using the flat. Since there was no arrangement between the owner of the contested property and the defendants regarding the discontinuation of the right to use the property, the court considers that [Mikhail, Dmitriy and Yelena] had a right of use over the flat which was identical [in its scope] to that of the owner; accordingly, there are no legal grounds for allowing [the applicant\u2019s] claim to declare their right of use over the flat terminated.","A change in ownership of the contested property cannot serve as an independent ground for terminating [their] right to use the flat ...","The plaintiff\u2019s argument to the effect that [Mikhail, Dmitriy and Yelena] do not actually live in the contested property cannot serve as an independent ground for terminating [their] right of use over the flat ...","Since the defendants\u2019 right of use over the flat is not terminated, there are no grounds for ordering their eviction ...\u201d","11.On 27 May 2009 the Lipetsk Regional Court dismissed the applicant\u2019s appeal, endorsing the District Court\u2019s judgment."],"119":["8.The applicant was born in 1937 and lives in Ceira (Portugal).","9.The facts of the case, as established by the domestic courts and submitted by the parties, may be summarised as follows.","A.The background to the present case","10.The applicant\u2019s son, A.J., was born on 29 May 1964.","11.A.J. suffered from several mental illnesses, with a number of possible diagnoses being considered over the years such as schizophrenia and major depression. He also had a pathological addiction to alcohol and prescription drugs (medicamentos) and was sometimes violent towards his mother and sister. According to the expert medical opinion obtained after his death and during the domestic proceedings (see paragraph 33 below), A.J. may also have suffered from borderline personality disorder.","12.A.J. was hospitalised in the Sobral Cid Psychiatric Hospital (Hospital Psiqui\u00e1trico Sobral Cid, hereinafter \u201cthe HSC\u201d) in Coimbra on eight occasions on a voluntary basis from:","1.5 to 8 August 1984;","2.15 March to 3 April 1985, when he was prevented from leaving the pavilion building at least for part of his stay;","3.15 to28November 1985;","4.10 to 18 January 1993, after being accompanied to the HSC by the police who had been called to his home following a family dispute. He was released at his request, having filled out a release form;","5.1 to 12 February 1993;","6.1 to 3 September 1999, when he was urgently admitted to hospital on 1September (diagnosed with chronic alcoholism), and signed his own release form on 3 September 1999 against medical advice;","7.12 December 1999 to 14 January 2000, when he was hospitalised after a delirious episode, and referred to the HSC by the emergency department. At the beginning of his stay he was forbidden to leave the pavilion building where he was confined;","8.2 to 27April 2000, during which period he left the pavilion twice \u2013 on 3 and 27 April 2000 \u2013 without permission.","13.The medical files show that his degree of dependence on medical assistance (grau de depend\u00eancia) varied during these stays between being a patient in need of partial assistance and a patient requiring intensive or full assistance. At other times the degree of dependence was not noted, as was the case for his last stay in 2000. Between some of these stays he saw a doctor at the HSC as an outpatient but on an infrequent basis.","14.According to the Government, these stays followed emergencies or bouts of alcoholic intoxication, and only the last stay followed a suicide attempt.","15.During some of the periods he spent in hospital, A.J. was authorised to spend weekends at home with his family \u2013 three weekends during the period from 12 December 1999 to 14 January 2000, and two weekends during the period from 2 to 27 April 2000.","B.The events prior to A.J.\u2019s death","16.In March 2000 A.J. went to Lisbon to try to renew his driving licence for heavy vehicles. However, he was unsuccessful. On 1April 2000 he attempted to commit suicide by taking an overdose of prescription drugs. He was taken to the emergency department of Coimbra University Hospital.","17.On 2 April 2000 A.J. was voluntarily admitted to the HSC from the emergency department (this was the last of his stays at the HSC (see paragraph12 above). He was treated by Dr A.A., who had been his psychiatric doctor since December 1999. According to the clinical records dated 2 April 2000 and the witness statement of Dr A.A., the suicide attempt may have been the result of his failure to renew his driving licence. According to her, he had become depressed and thought his life no longer had any value, he felt marginalised and also powerless to achieve any aim in life.","18.For the first week of his stay at the HSC, he was placed under a restrictive regime, even though he was a voluntary inpatient (see paragraph54 below). He was confined - in his pyjamas - to pavilion 8, where the Male General Psychiatric Clinic (Hospitalisation of Acute Cases) was located, and was not allowed to leave the pavilion. However, the clinical records show that on 3 April 2000 he left the pavilion after lunch and went home. He was brought back to the HSC by his brother-in-law at around 1.30p.m. In the second and third week of that stay at the HSC, given an improvement in A.J.\u2019s condition, the restrictive regime was lifted and he was allowed to circulate outside the pavilion and within the HSC grounds. This regime remained unchanged up until his death on 27April 2000(see paragraph28 below). During that period he was allowed to spend two weekends at home.","19.During the second weekend A.J. was allowed to go home to spend Easter with the applicant and other members of his family. He left the HSC at 10a.m. on Friday 21 April 2000 after his breakfast, and was due to return on Wednesday 26 April 2000 after breakfast. Dr A.A. was on holiday over that period (she had left on 19 April 2000) and was replaced by DrE.R. DrE.R. saw A.J. twice before the latter spent the Easter weekend at home.","20.At around 10.30 p.m. on Tuesday 25 April 2000, the applicant took A.J. to the emergency department of the Coimbra University Hospital because he had drunk a large amount of alcohol. The observation record completed by the emergency department at around midnight on 25April 2000 read as follows:","\u201cpatient hospitalised in HSC, being seen by doctor A.A; he spent the weekend outside and must have behaved recklessly because he got drunk. History of mental weakness, depressive episodes and recurrent suicide attempts, those characteristics were not observed during the weekend. Sent back to the HSC where he is hospitalised.\u201d","He was prescribed medication in case of emergency, and it appears from his clinical records that he was given emergency medication at around 2a.m. on 26 April 2000 at the HSC.","21.The clinical record from 8 a.m. to 4 p.m. on 26 April 2000 shows that A.J. stayed in bed and only got up to eat. He received phone calls and a visit from his sister. There is no clinical record for the shift from 4 p.m. to midnight and for the shift from midnight to 8 a.m. the next day. The domestic courts accepted that the applicant\u2019s son had been medicated for the whole day, whereas the applicant contested that fact on the basis of the lack of any clinical record.","22.The clinical record resumes at 8 a.m. on 27 April 2000. The nurse noted that between 8 a.m. and 4p.m. A.J.\u2019s behaviour had been calm and he had been walking around outside pavilion 8. According to the oral statement of one nurse and the clinical record, he had eaten well, including his afternoon snack at around 4.45p.m.","23.The clinical records do not mention that A.J. was seen by the doctor on call on returning to the HSC. Dr E.R. stated in his oral evidence that he had assumed that A.J. was fine since the nurses had not requested any assessment (see paragraph35 below).","24.At around 4p.m. the applicant called the hospital. She was told to call back later, during the afternoon snack, as her son was not inside the building at that time. She was assured that some minutes earlier he had been standing at the door and he looked fine.","25.At around 7 p.m. it was noticed that A.J. had not appeared for dinner. The coordinating nurse was informed of his absence. The hospital staff then started searching the areas where patients were allowed to walk about freely, such as the cafeteria and the park.","26.At some time between 7 p.m. and 8 p.m. the coordinating nurse reported the disappearance to Dr M.J.P., who was on call that day (but not at the HSC at that time), and contacted the National Republican Guard.","27.At around 8 p.m. the coordinating nurse spoke on the telephone to the applicant and told her that A.J. had not appeared for dinner.","28.It is not known at what precise time A.J. left the pavilion and the hospital grounds after he had taken his afternoon snack and thereafter followed a footpath towards the applicant\u2019s house. At 5.37p.m., dressed in his pyjamas, A.J. jumped in front of a train running between Lous\u00e3 and Coimbra.","C.Domestic proceedings against the hospital","29.On 17 March 2003 the applicant lodged a civil action with the Coimbra Administrative Court (Tribunal Administrativo do C\u00edrculo de Coimbra) against the HSC under the State Liability Act (Legislative Decree no. 48051 of 21 November 1967) seeking pecuniary and non-pecuniary damages of 100,403 euros (EUR).","30.The applicant claimed that her son had been treated at the HSC for mental disorders on several occasions. He had been admitted to the hospital as a voluntary inpatient on 2 April 2000 because he had attempted to commit suicide. She alleged that he had made another attempt over the Easter weekend when he was at home with her. The fact that her son had been able to leave the hospital grounds on 27April 2000 had led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties. Because of his suicide attempts and mental condition, her son should have been under medical supervision and the hospital staff should have prevented him from leaving the hospital grounds. She maintained that her son\u2019s suicide had been caused by the poor organisation of the hospital services. The poor organisation was reflected in three aspects: a) the lack of fencing around the boundaries of the hospital, which allowed inpatients to leave the hospital easily without any supervision, b) the lack of a mechanism for checking the presence of inpatients which would allow the hospital staff to notice an absence immediately, and c) the lack of an emergency procedure capable of detecting an inpatient\u2019s absence, which would allow the hospital staff to adopt the effective measures required to ensure that the inpatient was returned safely without endangering the lives of others or his own life. The applicant relied on the specific background leading to A.J.\u2019s hospitalisation since the beginning of April as well as details from his clinical record, notably his repeated excessive consumption of alcohol, his mental illness, and his earlier suicide attempt. She maintained that on account of all those circumstances, the monitoring measures should have been enhanced in order to prevent him from leaving.","31.On 29 October 2003 the court gave a preliminary decision (despacho saneador) specifying the facts considered to be established and those which remained to be established.","32.On 5 July 2005 the court ordered that an expert report be drawn up on A.J.\u2019s clinical condition and the supervision measures required as a result of that condition.","33.On 27 September 2006 a psychiatrist appointed by the Medical Association (Ordem dos M\u00e9dicos) submitted his report, which was based on an analysis of photocopies from the clinical files of the HSC. The relevant parts of the report read as follows:","\u201c...","Although alcohol dependence was the predominant diagnosis, several other diagnoses were considered. In particular, dependent personality (personalidade dependente); delirious outbreaks (surto delirante); schizophrenia; manic-depressive psychosis (psicose man\u00edaco-depressiva)...","A.J.\u2019s clinical history enables us to consider him an ill person with recurring relapses into excessive alcohol consumption ... but also another kind of symptomatology...","He was an individual who was \u201cvery violent and aggressive when he was drunk, and even in those moments when he had not been drinking he was a conflictual young man, easily irritable\u201d...","...","There is no detailed reference in his clinical records to his psychopathological condition on 26 April 2000 (after the alcohol intoxication episode which led him to the emergency services on 25 April 2000), 27 or 28? April 2000...","...","The [plaintiff\u2019s] son suffered from disturbances which caused depressive behaviour with a significant inclination to suicide.","Taking into account the clinical documents, his clinical condition may have led to another attempt to commit suicide, which turned out to be fatal.","In addition, the polymorphism of the patient\u2019s psychiatric condition should be emphasised. A psychopathological condition such as the patient\u2019s has a bad prognosis and suicide is frequently preceded by an attempt (or attempts) to commit suicide. ... Indeed, it must be clarified that ... he may have been suffering from a borderline personality disorder [perturba\u00e7\u00e3o de personalidade borderline]...","...","There is reference to a multiplicity of diagnoses, all of them capable of enhancing the risk of the patient\u2019s suicide (and also of suicidal behaviour).","...","The clinical history and psychopathological framework [quadro psicopatol\u00f3gico], for the reasons already mentioned, would predict future suicidal behaviour; thus the occurrence of suicide is not surprising.","With regard to prevention, containment and surveillance measures must without a doubt be adopted. But with a patient like this one, these measures are difficult to adopt (see for example his requests to be discharged despite the doctor\u2019s opinion, which is substantiated) and never sufficient because of the high potential for suicide.","...","We can assume or assert the increased suicide potential of an individual when he is suffering from a psychopathological framework such as schizophrenia, major depression, chronic alcoholism; all these pathologies are mentioned in the patient\u2019s clinical records. This potential is also increased if the patient is suffering from Borderline Personality Disorder, as we mentioned; an illness which cannot be excluded with regard to this patient. The prevalence of suicide is significant among patients suffering from these pathologies. Therefore, what happened is not unusual.","The fact that the patient had been on antidepressant treatment for more than two weeks, had wandered around the hospital without ever endangering his life, and the fact that there is nothing in the medical records on suicidal thoughts, does not mean that the probability of that event (suicide) was negligible. However, it was hardly avoidable.","[Fully effective] Prevention of suicide in these patients is an impossible task.","In a patient who wanders around the hospital and whose symptomatology is not suggestive of imminent suicide, where that probability (of suicide) is higher but is not so increased at that moment (considering the background and the characteristics of the patient), prevention is much more difficult.\u201d","34.The first hearing took place on 8 October 2008. The applicant and the psychiatrist who had issued the above medical opinion gave evidence at the hearing.","35.At five hearings (namely on 8 and 9 October 2008, on 14 January 2009, and on 9 and 13 February 2009) the court heard evidence from different witnesses, including: the applicant\u2019s daughter (A.J.\u2019s sister); nurses, doctors and medical auxiliaries who had worked for or were still working for the HSC, some of whom had started their shift at 4 p.m. on 27April 2000; a social worker employed by the HSC since 1995, who had had contact with A.J.; and the train driver. Dr A.A., who had been A.J\u2019s psychiatric doctor at the HSC, gave evidence that his treatment consisted of taking the prescribed medication, ensuring that he received the treatment voluntarily, and establishing a relationship of trust with him in order for him to receive therapy. She confirmed that voluntary inpatients could have their freedom of movement restricted if it was thought necessary. In these circumstances inpatients would be forbidden from leaving the pavilion and would remain in their pyjamas. Dr E.R. (who had been replacing Dr A.A. at the relevant time) confirmed that on 27 April 2000 there had been no mention on the information board in pavilion 8 of any restrictive measures in respect of A.J. In other words, he had been free to leave the pavilion, although to leave the grounds of the HSC he would have needed medical permission. Dr M.J.P., who had been the emergency doctor on call on 27April 2000, explained that had the nurses in the pavilion seen a problem with A.J.\u2019s behaviour on that day they would have called her, which they had not done. The court also analysed several documents attached to A.J.\u2019s clinical file from the HSC.","36.On 9 March 2009 the court conducted an on-site inspection (see paragraph 48 below).","37.On 7 January 2010 the court held a hearing at which it adopted a decision concerning the facts. The court considered, inter alia, that it should not explicitly define A.J.\u2019s pathology. Regarding the episode on 25April 2000, the court decided to view it simply as an abuse of alcohol, taking into account his underlying chronic alcoholism and the fact that the drinking had taken place in the afternoon and mainly at a caf\u00e9.","38.On 25 April 2011 the Coimbra Administrative Court delivered a judgment in which it ruled against the applicant. With regard to the applicant\u2019s argument that the hospital should have erected fences or other barriers around the hospital grounds, the court pointed out that the current approach in the treatment of mentally ill patients was to encourage social interaction. The existence of fencing would lead to the stigmatisation and isolation of mentally disabled inpatients. In this regard it held that the lack of security fences or walls was:","\u201cin line with modern theories of psychiatric science according to which the treatment of patients suffering from mental disorders must take place in an atmosphere of trust and mobility of movements, in physical conditions which promote the freedom and autonomy of movements, and which favours the interaction and the conviviality between patients and the staff in order to encourage [the patient\u2019s] reintegration; monitoring of these patients must be conducted in a discreet way\u201d.","39.As to the applicant\u2019s complaint regarding the lack of a mechanism capable of checking the presence of inpatients, the court found that the HSC had a surveillance procedure in place which consisted of verifying the inpatients\u2019 presence at meal and medication times; this was in compliance with recent psychiatric science and respected the inpatients\u2019 right to privacy and dignity. Additionally, the court found that the inpatients in respect of whom a specific restrictive regime of hospitalisation was adopted were given more attention by the nursing team and the medical assistants, who verified their presence inside the building where they were hospitalised or in the areas surrounding the building\u2019s entrance, as the case may be. With regard to the applicant\u2019s argument that no emergency procedure existed, the Coimbra Administrative Court noted that it consisted of alerting the police and the inpatient\u2019s family in the event of absence. It found this procedure to be appropriate.","40.As regards the applicant\u2019s complaint that her son had committed suicide as a result of the absence of permanent monitoring, the court held that his suicide had not been foreseeable. It was true that her son had been suffering from a mental illness which had never been properly diagnosed, either because the symptoms were complex or because he had been addicted to alcohol and prescription drugs. In this regard, the court pointed out that over the years the applicant\u2019s son had been diagnosed with schizophrenia and major depression. However, it was only after his death and as a consequence of an expert opinion requested from the Medical Association during the proceedings (see paragraph 33 above) that a probable diagnosis of borderline personality disorder had been made. The court established that A.J. had last been admitted as an inpatient after a suicide attempt. However, it considered that despite the possibility that inpatients diagnosed with mental diseases such as those of the applicant\u2019s son might commit suicide, during the last days before his death he had not shown any behaviour or mood which could have led the hospital staff to suspect that 27 April 2000 would be different to the preceding days.","According to the Coimbra Administrative Court, the fact that he had been admitted to the emergency department of the Coimbra University Hospital because he had consumed a large amount of alcohol had not been the result of a suicide attempt but of reckless behaviour. The Coimbra Administrative Court found that, having returned to the HSC, he had been kept under medical supervision the whole day, was medicated and accompanied by the medical staff, and that his health had improved. The court thus concluded that there were no circumstances that would have made it possible to predict the tragic outcome that had occurred. It was not possible to affirm that his suicide had been predictable, nor was there anything in the case file that could have justified the adoption of the involuntary treatment procedure in the days preceding the tragedy, since it was not foreseeable that he would commit suicide. According to the court, A.J.\u2019s behaviour had been \u201cabsolutely unexpected and unforeseeable\u201d, given the concrete circumstances of the case.","41.On 12 May 2011 the applicant appealed to the Administrative Supreme Court, claiming that the first-instance court had wrongly assessed the evidence, that its findings of fact had been incorrect, and that it had wrongly interpreted the law.","42.On 26 September 2012 the Deputy Attorney-General attached to the Administrative Supreme Court was asked to provide an opinion on the appeal. He recommended that the first-instance judgment should be reversed. The opinion focused on the failure to put in place a surveillance framework specifically adapted to A.J.\u2019s mental health problems and risk of suicide, as well as the alleged failure of the HSC to comply with its obligation to prevent suicide. It stated that:","\u201c....","with regard to patients with a tendency to commit suicide only the prescription and application of enhanced monitoring (vigil\u00e2ncia acrescida) could be considered adequate.","In A.J.\u2019s medical report there are references to suicide attempts; the last one occurred on 1 April 2000, some days before 26 April 2000 when he went back to HSC after being treated at [Coimbra University Hospital] due to the consumption of a large amount of alcohol; the possibility of a suicide attempt was thus a \u201cprobable risk\u201d or, among the possible risks, one which could be anticipated in so far as it could be expected by a prudent assessor (avaliador prudente).","Therefore, in our opinion, the impugned judgment has erred in considering for the purpose of assessing the level of monitoring required from the defendant, that A.J.\u2019s suicide was an absolutely unexpected and unforeseen fact and by holding that there were no grounds to increase the monitoring in the particular case.","The [HSC] never prescribed or put in place a regime to reinforce the monitoring of A.J. \u2013 a regime which could be suited to preventing any possible exit from the hospital, ...","This enhanced surveillance, which aims at protecting the patient, is part of the therapeutic obligation of the hospital and it does not conflict with the open-door regime as a treatment method applied to patients in the circumstances in which it is considered suitable.\u201d","43.Regarding the facts which the applicant had relied on concerning several HSC inpatients who had left without permission and the resulting tragic consequences, the opinion noted that those elements should not be taken into consideration.","According to the opinion:","\u201cthe degree of surveillance that ought to be established must take into consideration \u201call the probable risks\u201d and all those \u201cwhich can fall within the expectations of a prudent assessor\u201d.","A.J.\u2019s medical report, alone, already had references to suicide attempts, one of which had occurred twenty-five days earlier. Thus it was possible to predict a repetition of those.","It is therefore possible to conclude that the defendant did not establish or put in place any monitoring measure which could be considered adequate to the status of a psychiatric hospital and to A.J.\u2019s characteristics as a patient \u2013 it could and should have done so.\u201d","44.On 29 May 2014 the Administrative Supreme Court dismissed the applicant\u2019s appeal by two votes to one, upholding the legal and factual findings of the Coimbra Administrative Court. The Administrative Supreme Court found that the facts relied on by the applicant before the lower court concerning similar cases of inpatients who had left the HSC without permission were irrelevant to the decision in the instant case. The court rejected the applicant\u2019s argument that A.J. had exhibited depressive behaviour with a \u201cstrong\u201d tendency towards suicide, which he had attempted on different occasions. It upheld the finding of the lower court which had established only one suicide attempt on 1 April 2000.","45.The Administrative Supreme Court considered that the practice of counting of inpatients at meal and medication times was sufficient and had allowed the hospital staff to verify A.J.\u2019s attendance during lunch and the afternoon snack on 27 April 2000. It rejected the applicant\u2019s argument that counting the inpatients when they were given their meal trays with their meals was \u201cdeeply amateurish\u201d. As to the foreseeability of the suicide, the Administrative Supreme Court held that the HSC had not breached any duty of care, as there had been no indication which could have led the hospital staff to suspect that the applicant\u2019s son would try to commit suicide that day, namely by leaving the hospital grounds. The Administrative Supreme Court took into account that during previous periods of hospitalisation the applicant\u2019s son had also left the hospital grounds, and that no link had been established between that behaviour and a particular risk of suicide in so far as they had only been able to establish the existence of a single suicide attempt, namely on 1 April 2000.","46.In a dissenting opinion, one of the judges stated that the hospital should have secured the grounds in some way in order to fulfil its duties of care and supervision. By not doing so, it had allowed inpatients to leave easily without being discharged, thus breaching those duties. That omission had been the cause of the \u201cescape\u201d and suicide of the applicant\u2019s son.","D.Background information concerning the HSC","47.The HSC is a psychiatric hospital located outside Coimbra on seventeen hectares of land. It is part of the Coimbra University Hospital and is State-run.","48.According to an on-site inspection made by the Coimbra Administrative Court on 9 March 2009 in the course of the proceedings against the hospital, the HSC had eighteen buildings (one for each hospital department). On the basis of information before the Court it appears that different types of patients were hospitalised in these different buildings depending on their gender and the type and extent of their illness. The grounds of the HSC were not bordered by security fences or walls of any other kind. The buildings were surrounded by green areas with trees and other vegetation, and the different buildings were accessed by means of roadways and paths, which were also surrounded by trees and other vegetation. The main entrance to the HSC had a barrier and a security guard. One of the possible exits from the hospital grounds led to a shortcut towards a railway station platform. This shortcut was accessed by taking the road behind building no. 9. The station platform was around a fifteen to twenty-minute walk from that part of the HSC\u2019s grounds.","49.In accordance with the guidelines prepared by the HSC, meals were taken in the hospital cafeteria and inpatients had to remain there until the end of the meal. There was a User\u2019s Guide intended for inpatients which set out the rules governing their hospitalisation. Inpatients were not allowed to leave the pavilion without informing the relevant nurse in advance. Inpatients were also forbidden to leave the hospital grounds without the authorisation of a specialist. If an inpatient wished to leave the hospital before authorisation had been given, a discharge form had to be signed.","50.The following schedule was in place during A.J.\u2019s stay in April2000:","i.Wake-up time: between 7 a.m. and 8 a.m.;","ii.Bedtime: flexible, from 10 p.m. the inpatient must remain silent and with the lights out;","iii.Meals:","1.Breakfast: from 8.35 a.m. to 9.30 a.m.;","2.Lunch: from 12 noon to 1 p.m.;","3.Afternoon snack: 4.45 p.m.;","4.Dinner: from 7 p.m. to 8 p.m.;","5.Evening snack: 10 p.m.","51.A mechanism was in place, as recognised by the domestic courts, for checking an inpatient\u2019s presence, by counting the inpatients at each meal time (five times a day) and at medication time. In addition to this, an inpatient\u2019s presence was checked at bedtime. Inpatients under a restrictive hospitalisation regime were monitored more closely by the nursing team.","52.An emergency procedure was triggered when the absence of a patient was noticed. This procedure consisted of alerting the police, the doctor on call and the inpatient\u2019s closest relatives.","53.During hospitalisation an inpatient was accompanied by a therapeutic team made up of a doctor, a nurse, a social worker, and a medical auxiliary.","54.A distinction was made between voluntary and involuntary hospitalisation (see paragraph 58 below). Under voluntary hospitalisation, an inpatient could abandon treatment at any moment. However, according to the doctors who testified in the domestic proceedings and the Government\u2019s observations, there were two types of regime for voluntary inpatients: a restrictive regime, according to which inpatients were not allowed to leave the pavilion, and a general regime, allowing inpatients to leave the building after informing the duty nurse, although they were still not allowed to leave the grounds of the HSC without permission. Inpatients under the restrictive regime were generally dressed in pyjamas and a dressing gown, while inpatients under the general regime seem to have had a free choice as to what they wore. It appeared that inpatients were often kept on the restrictive regime at the beginning of a hospital stay, even if they were admitted on a voluntary basis. There was an isolation room for inpatients who were very agitated and aggressive and this room could also be used for voluntary inpatients.","55.The applicant submitted news articles to the Court referring to inpatients who had apparently managed to leave the HSC\u2019s grounds. The first five articles below had already been submitted to the domestic authorities (see paragraph 44 above where the Administrative Supreme Court found the information contained therein to be irrelevant to the decision in the instant case):","(i)on 9 March 2008 the body of an inpatient who had escaped two weeks earlier was found close to the hospital grounds (in Di\u00e1rio de Coimbra);","(ii)on 29 October 2008 a man escaped from the HSC and was hit by a car after jumping in front of it (in Di\u00e1rio das Beiras);","(iii)on 31 July 2008 the body of an inpatient who had escaped from the hospital the previous month was found in a river (in Di\u00e1rio de Coimbra);","(iv)on 14 August 2008 a patient who had been involuntarily hospitalised in the HSC escaped (in Di\u00e1rio de Coimbra);","(v)in early March 2010 three different inpatients escaped from the hospital; one of them was located by the police after stealing a car and another was found dead in a nearby river (in Bombeirospontopt);","(vi)on 16 October 2011 an inpatient escaped from the HSC\u2019s grounds and attacked two police officers with a hoe (in Correio da Manh\u00e3);","(vii)on 1 March 2015 two inpatients escaped from the HSC and stole a car(in Tvi24)."],"120":["4.The applicant was born in 1961 and lives in Bir\u017eai.","5.On 11April 2008 the applicant\u2019s son, M.P., was arrested on suspicion that he had committed a burglary and stolen a laptop computer. He was taken to a police station in Bir\u017eai, where he was held until his death (see below). On 12 April 2008 the police searched M.P.\u2019s home and found an amount of drugs (cannabis). On 13April 2008 the authorities informed M.P. that he was suspected having committed crimes of theft and possession of drugs.","6.By a ruling of 13April 2008, a court sanctioned M.P.\u2019s pre-trial detention for a period of eighteen days, on the grounds that he could flee from justice, for previously he had worked in Norway and had connections in that country. M.P. confessed to possession of drugs, but denied the theft. M.P. was present at the court hearing; he also had a lawyer, J.P., representing his interests in the courtroom. The court indicated that M.P. had no criminal record.","7.While detained at Bir\u017eai police station, M.P. was kept in cell no.1 alone for the entire time, given that the other detainees at that station had prior convictions, and, pursuant to the relevant domestic law, persons with no criminal record had to be held separately from those with prior convictions (see paragraph 53 in fine below).","8.As later established by the prosecutor, whilst detained at Bir\u017eai police station between 12 and 14April 2008 M.P. was taken out of his cell four times so that he could meet his lawyer and the investigator. During the pre-trial investigation M.P.\u2019s lawyer, J.P., would later also testify that he had met M.P. at around 2-3 p.m. on 14April at Bir\u017eai police station to discuss whether to appeal against the court ruling imposing detention, but M.P. had stated that there had been no need because he had been ready to confess of the theft. Later that day the lawyer had taken part in M.P.\u2019s questioning by the pre-trial investigator, when M.P. had made a statement about the theft. According to the lawyer, M.P. had communicated in a calm manner, he had not been agitated and had had no complaints.","A.Death of the applicant\u2019s son at Bir\u017eai police station and the ensuing pre-trial investigation into the circumstances of his death","9.On the morning of 15April 2008 M.P. was found dead in his cell at Bir\u017eai police station. As was later established during the pre-trial investigation, at around 8 a.m. that morning the guards\u2019 shift was changing, and, in accordance with the applicable rules, the doors of all the cells were being opened. M.P. was found standing with his feet on the ground leaning forward; a blanket was looped tightly around his neck while the other end of the blanket was attached to the metal bar at the side of the top bunk of his bunk bed. The body bore the marks of strangulation, without marks of any other injuries. Police Officer D.M. immediately took M.P. out of the noose and laid him on the floor of the cell.","10.As transpires from the medical records and the prosecutor\u2019s decision of 19December 2014 (also see paragraph44 below), at 8.08a.m. on 15April 2008 officers at Bir\u017eai police station called an ambulance, which arrived at the scene within a couple of minutes, at 8.12a.m. The paramedics indicated in the medical report and also later testified during the pre-trial investigation that they had examined M.P.\u2019s body at 8.12a.m.: the body had been found lying on the floor, had shown no signs of breathing or a pulse, the pupils had been dilated and had not reacted to light, the neck had shown signs of strangulation, post-mortem discoloration had set in, as had rigor mortis. The paramedics also stated that they had not attempted to resuscitate M.P. because according to what they had seen he had died one or two hours before. The paramedics further asserted that apart from strangulation marks on M.P.\u2019s neck there had been no injuries on M.P.\u2019s face or hands. They also attested that there had been no signs on M.P.\u2019s hands which would have indicated that he had been handcuffed or tied with a rope. The paramedics also noted that, if any other injuries had have been visible on M.P.\u2019s body, they would have been noted in the medical report.","11.There was a suicide note found in the cell. It was addressed \u201cTo Mother\u201d. An empty box of matches was found in M.P.\u2019s cell, and the authorities later established that the suicide note had been written with charcoal from used matches (also see paragraphs 21 and 44 below).","12.On 15April 2008, the incident scene was inspected, photographs were taken, one of them showing a white sheet on the bunk bed, and police officers who worked at Bir\u017eai police station had been questioned. The same day the prosecutor also questioned the applicant, who stated that \u201crecently her son [had] not complain[ed] about any problems or troubles, everything [had been] good\u201d. She also stated that previously \u201cM.P. ha[d] never attempted to hang himself or to commit suicide, there [had been] no similar accidents in the past, and he [had] not mention[ed] such things either\u201d. The prosecutor continued questioning the police officers on 17April 2008.","13.On 15 April 2008 an autopsy was ordered. The prosecutor provided the expert with a plastic bag containing M.P.\u2019s clothes and a blanket which had been found in M.P.\u2019s cell. The expert examination was performed the following day, 16April 2008. The expert, who was from the Panev\u0117\u017eys branch of the Mykolas Romeris University Forensic-Medicine Institute (Mykolo Romerio Universiteto Teismo medicinos instituto Panev\u0117\u017eio skyrius), concluded that the cause of M.P.\u2019s death had been mechanical asphyxiation as a result of his neck being squeezed by a noose. Whilst noting that there were light scratches on M.P.\u2019s forehead and nose, the expert observed that this could have resulted from scratching of acne and concluded that it was not related to M.P.\u2019s death (report no.M224\/008(05)).","14.The applicant requested that an additional autopsy be performed and the prosecutor granted her request. The additional autopsy was performed on 18 April 2008 (report no.M759\/08(01)). The forensic expert at the Vilnius branch of the Mykolas Romeris University Forensic-Medicine Institute concluded that there were strangulation marks on the neck and bruising on the back. The neck injuries could have been inflicted several minutes prior to death as a result of the neck being squeezed by the bed sheet. As to the bruising on the back, this could have been caused when the body hanging in the noose went into convulsion hitting off hard blunt surfaces. The expert concluded that there were no objective indications which could have denied M.P.\u2019s cause of death as having been asphyxiation when the neck had been squeezed in a noose. The expert noted that there were no signs of strangulation by hands; he also indicated that it had been a one-time constriction on the neck.","The findings of this additional autopsy were later confirmed when, following the last reopening of the criminal proceedings, the pre-trial investigation judge ordered another forensic examination (report no.EKM 52\/14(01)) to be performed to answer certain questions, including those submitted by the applicant.","15.According to the Government \u2013 who have not been contested on this point by the applicant \u2013 upon the applicant\u2019s request, after the second autopsy the bailiff examined the corpse and took photographs in order to establish factual circumstances. The bailiff noted injuries on the back and the neck of the corpse.","16.On 7 May 2008 the applicant was granted victim status. She was represented by a lawyer.","1.First round of the investigation","17.On 25 November 2008 the prosecutor summarised the findings made as a result of the criminal investigation and decided to discontinue it, citing the lack of any indication of a crime. The prosecutor considered that M.P. had died through suicide, which was corroborated by his suicide note.","18.However, by a ruling of 5February 2009 the Panev\u0117\u017eys Regional Court, on appeal by the applicant, found that the pre-trial investigation had not been thorough and annulled the prosecutor\u2019s decision to discontinue it. For the court, it had been necessary to investigate whether M.P. had been harmed by other persons, taking into account the injuries on M.P.\u2019s wrists, as alleged by the applicant, as well as to examine the suicide note and to establish whether it had been written by M.P. and with what writing instruments. The video recordings from Bir\u017eai police station had not been properly inspected, and the statements of some of the police officers had been contradictory, even false. Moreover, an internal investigation had established gross breaches of duty by the police officers at the police station (see paragraphs 47-50 below), which in turn could attract criminal liability under Article229 of the Criminal Code (see paragraph52 below). Nevertheless, the prosecutor had failed to assess that internal-investigation report.","2.Second round of the investigation","19.In March and April 2009 another prosecutor continued the investigation and questioned witnesses.","20.In May 2009, and in order to establish whether the suicide note had been written by M.P., the prosecutor ordered a handwriting expert examination of the note, which then was compared to several other documents handwritten by M.P. One of those other documents was a note which M.P. had handwritten to the applicant on 14April 2008, whilst detained at Bir\u017eai police station. It transpires from the material before the Court that that document had been in the possession of the applicant who had refused to give it to the authorities. A copy of that note had eventually been obtained by the authorities under a court order.","21.In June 2009 the handwriting experts produced a report concluding that the suicide note had been undoubtedly been written by M.P. In December 2009 the forensic experts concluded that there was high probability that the suicide note had been written with burned matches, which could have come from one of the two match boxes that had been found in M.P.\u2019s cell or from another box of matches (expert report no.11\u20131457(09)).","22.On 29 January 2010 the prosecutor again discontinued the pre-trial investigation, holding that M.P.\u2019s death had been suicide. In reaching that decision he relied on an abundant body of evidence, including analyses of the video recordings from the police station cameras, which showed that no\u2013one had entered M.P.\u2019s cell at the relevant time. Between 5 p.m. on 14April 2008, when M.P. had already been in the cell, until 8.04 a.m. on 15April 2008, when M.P.\u2019s body had been found, the doors of his cell had been opened only once, at 8.00 p.m. on 14 April 2008, when the guards D.M. and D.A. had changed shift. Furthermore, the recordings showed that the guards D.A. and D.M. had checked on M.P. several times though the peep hole, and during the night the guard D.M. had patrolled his area several times.","23.As to the possible criminal liability under Article229 of the Criminal Code (see paragraph52 below) on the part of the police, the prosecutor took into account the conclusions of the internal investigation to the effect that the Officers D.M. and R.S. had not followed the internal instructions regarding the obligation to constantly observe detainees. That being so, the prosecutor also noted that the two officers could not have foreseen the consequences of such behaviour \u2013 M.P.\u2019s suicide \u2013 and prevent it, because M.P. had been a quiet and introverted person, he had been calm, had caused no problems in the police station and had not complained. There had been no indication that M.P. had had suicidal tendencies or a tendency to self-harm, and therefore no signs that special supervision had been needed. Accordingly, since there had been no causal link between the actions of the officers and the consequences, there were no grounds to start a pre-trial investigation for failure to perform official duties.","24.On the basis of an appeal by the applicant, who had argued that during such a flawed pre-trial investigation her suspicions that her son had been murdered had only become stronger, by a ruling of 13May 2010 the Panev\u0117\u017eys Regional Court in a public hearing again annulled the prosecutor\u2019s decision to discontinue the criminal proceedings. This time the court considered that there were certain contradictions with regard to the bed sheet as the object used for strangulation.","3.Third round of the investigation","25.Having performed an additional examination of the bed sheet in the light of all available evidence, such as the witnesses\u2019 statements, the photographs from the scene and expert reports, by a decision of 6September 2010 the prosecutor again discontinued the pre-trial investigation into the circumstances of M.P.\u2019s death.","26.The applicant appealed, and on 25October 2010 the Roki\u0161kis County District Court quashed the prosecutor\u2019s decision. The court considered that, in order to eliminate all doubts as to how M.P. could have killed himself, it was possible to conduct a reconstruction which would also verify the applicant\u2019s version that her son could not have killed himself in the way suggested (see paragraph 9 above). The court also stated that it was necessary to establish why burned matches with which M.P. had written the suicide note had not been found in the cell. Lastly, the specific instrument which had been used as a noose around M.P.\u2019s neck had to be established. That decision was upheld by a higher court.","4.Fourth round of the investigation","27.On 14 December 2010 two reconstructions were performed at Bir\u017eai police station, with the participation of the applicant, the prosecutor, Police Officer D.M., who had found M.P.\u2019s body, and others. It was examined whether M.P. could have hanged himself in the manner stated by the police officers on 15April 2008 (see paragraph9 above). After the first reconstruction the applicant maintained that her son could not have hanged himself in the manner described. She had no remarks as to the results of the second reconstruction. The results of those reconstructions were written down in two reports.","28.In order to find the instrument which had caused M.P.\u2019s strangulation, the prosecutor sent requests to the Bir\u017eai county prosecutor\u2019s office and to the forensic experts in Panev\u0117\u017eys, and questioned certain witnesses. Even so, the blanket could not be found.","29.In the meantime, the applicant lodged an application to have a pre-trial investigation on the charges of failure to perform official duties (Article229 of the Criminal Code, see paragraph52 below) opened in respect of the prosecutors who had earlier discontinued the pre-trial investigation. By a final ruling of 10January 2011 the Panev\u0117\u017eys Regional Court refused her application, noting that it was within the prosecutors\u2019 competence which actions to take when handling a criminal case. More importantly, in this case, once the courts had annulled the prosecutors\u2019 decisions to discontinue criminal investigation, the prosecutors had continued the pre-trial investigation and the actions which the court had ordered had been carried out.","30.On 10 February 2011 the Roki\u0161kis County District Court allowed an application by the applicant\u2019s lawyer to have a medical expert evaluate the results of the second reconstruction (see paragraph 27 above) in order to answer the question as to whether in hanging himself in the manner shown during the second reconstruction M.P.\u2019s neck bones should have broken. According to the applicant, one needed \u201cacrobatic\u201d skills to commit suicide in such a manner. Having performed the examination of the second reconstruction report and the additional autopsy report (see, respectively, paragraphs 14 and 27 above), on 27November 2011 the expert concluded that he could not answer the question posed by the applicant\u2019s lawyer, because the question was speculative.","31.On 13 January 2012 the prosecutor again discontinued the pre-trial investigation into the circumstances of M.P.\u2019s death and also, for the reasons set out earlier (see paragraph 22 above) refused to open one in respect of Officers D.M. and R.S. for failure to perform official duties.","His decision was upheld by the first-instance court, which dismissed the applicant\u2019s appeal.","32.By a final ruling of 6April 2012 the Panev\u0117\u017eys Regional Court rejected an appeal by the applicant and upheld the part of the prosecutor\u2019s decision regarding the refusal to open a criminal investigation in respect of the actions of Officers D.M. and R.S., on the grounds that they had failed to perform their duties. The court reached this decision in a public hearing in which the applicant and her lawyer took part and could present their arguments. The court concurred with the prosecutor\u2019s view that the authorities had not been aware that M.P. had been a suicide risk, so as to confer liability on the officer. Pursuant to domestic law as applied in this case, persons detained in several cells at Bir\u017eai police station had to be constantly monitored through spy holes. Even so, on the basis of the medical report the court nevertheless underlined that M.P. had died within a couple of minutes of the moment when the noose had closed around his neck, that is to say within a very short time. It would have been physically impossible for D.M. and R.S. to constantly monitor, through the holes in the cell doors, all the persons detained at the police station, including M.P. This was one more reason why the court could not hold that D.M.\u2019s and R.S.\u2019s failure to perform their duties had caused M.P.\u2019s death.","33.On 27 April 2012 the Roki\u0161kis County District Court granted the applicant\u2019s appeal and quashed the prosecutor\u2019s decision of 13January 2012 in the part discontinuing the pre-trial investigation into the circumstances of M.P.\u2019s death (see paragraph 31 above). The court held that in order to eliminate any contradictions about alleged violence against M.P., a confrontation had to be performed between the applicant and one of the police interrogators who had questioned her son on 14April 2008 (seeparagraph 8 above). In addition, the applicant requested that other persons who were detained at Bir\u017eai police station between 14 and 15 April 2008 be questioned, and the court granted that request.","5.Fifth round of the investigation","34.As requested by the court, the prosecutor then performed a confrontation between the applicant and the police interrogator and questioned eight individuals who had been detained at Bir\u017eai police station at the time of M.P.\u2019s death. They all stated that they had heard no suspicious sounds during that night. In particular, D.\u017d., M.P.\u2019s co-accused in the case of theft, who had also been detained in the same Bir\u017eai police station but in another cell, averred that the two of them had talked through the slots intended for passing food at about 9 p.m. on 14April 2008. M.P. did not state that any violence had been used against him or that he had been threatened. Neither had D.\u017d. heard any suspicious sounds from M.P.\u2019s cell.","35.On 22 October 2012 the prosecutor again discontinued the pre-trial investigation into the circumstances of M.P.\u2019s death, holding that it had been the result of suicide.","36.As she was dissatisfied with the way in which the pre-trial investigation had been conducted, on 14November 2012 the applicant applied to have the entire office of the Panev\u0117\u017eys regional prosecutor\u2019s office removed from the investigation. By a final ruling of 7 March 2013 the Panev\u0117\u017eys Regional Court held that her complaints were without substance, and that there was no reason to believe that any prosecutors from that office would not be able to effectively carry out the pre-trial investigation.","37.By a ruling of 31 January 2013 the Panev\u0117\u017eys Regional Court however allowed an appeal by the applicant against the prosecutor\u2019s decision to discontinue the criminal proceedings (see paragraph 35 above). The applicant was present at the court hearing. She asked that an expert report be prepared in order to establish whether the video recordings from Bir\u017eai police station had not been tampered with. The court granted her request.","6.Sixth round of the investigation","38.The prosecutor then proceeded with the pre-trial investigation. On 20June 2013 the forensic experts produced report no.11\u2013745(13), wherein they concluded that even if there were small gaps between the clips, each of the clips in those video recordings was complete, and that none of the clips had any signs of having been altered by deletion or addition.","39.By a decision of 8July 2013 the prosecutor again discontinued the pre-trial investigation. He relied on the entirety of the evidence in the criminal file, including the expert conclusions regarding the video\u2013recordings (see the above paragraph).","40.The applicant appealed, arguing that the pre-trial investigation had been flawed, and that a number of pieces of evidence, such as, among other things, the marks on her son\u2019s wrists and the video recordings, had been improperly evaluated.","41.By a decision of 1October 2013 the Panev\u0117\u017eys Regional Court again quashed the prosecutor\u2019s decision. The court considered that there still remained certain contradictions, in particular, whether the short gaps within the video recording had occurred owing to a technical problem or because of another cause. It was also necessary to ascertain whether the video files had been provided in sequence. Moreover, no clear answer had been obtained from the medical expert as regards the possible reasons for M.P.\u2019s injuries in the light of the results of the second reconstruction (seeparagraphs 27 and 30 above). A supplementary medical evaluation had to be performed in which the specialists would be provided with all the existing information about M.P.\u2019s injuries so that the mechanism of his death could be determined and the question of whether there had been signs of violence against M.P. answered. The applicant and her lawyer were given the opportunity to pose questions to the experts. Lastly, the court underlined that a person\u2019s death, and even more so a death in a police station, was \u201ca particular situation (yra ypatingas atvejis)\u201d, which had to be thoroughly examined.","7.Seventh round of the investigation","42.In accordance with the Panev\u0117\u017eys Regional Court\u2019s instructions (seethe paragraph above), the prosecutor then asked the forensic experts to examine the video recordings at issue. On 1April 2014 an expert at the Forensic Science Centre of Lithuania (Lietuvos Teismo ekspertiz\u0117s centras) then concluded (report no.11\u20133422(13)) that it was most likely that the gaps between the clips had appeared when transferring the video files to DVD. The video files were in chronological order. The expert also noted that one of the cameras had recorded two paramedics at the police station at 8.12a.m. on 15April 2008.","43.As instructed by the Roki\u0161kis County District Court on 25 November 2013, the experts at the State Forensic-Medicine Service (Valstybin\u0117s teismo medicinos tarnyba) had been given the material of the pre-trial-investigation file, which had amounted to four volumes, to perform an expert examination of the cause of M.P.\u2019s death. They conducted the examination from 26May to 28November 2014 and produced report no.EKM52\/14(01). The experts firstly concluded that M.P. could have died as had been demonstrated during the second reconstruction, which had been performed on 14December 2010 (see paragraph 27 above). They also noted that M.P.\u2019s neck organs could have been placed under pressure because of his own weight, and also underlined the fact that, when a person\u2019s body is in a certain position, his or her weight is sufficient to bring about suffocation. The experts also explained that the death of M.P. should have occurred while he was in a vertical or similar position, as proven by the location of the post-mortem discolouration, and that the bruises on M.P.\u2019s back could have been caused when he was in the noose and his back came into contact with the frame of the bunk bed during his convulsions. As to the injuries to M.P.\u2019s wrists, which the applicant alleged had been inflicted during handcuffing, the experts had explained that those had appeared after the first autopsy when M.P.\u2019s hands had been bound during preparation of his body for burial, which was the usual practice. On the basis of the documentary evidence \u2013 photographs of M.P.\u2019s corpse from the scene, the bailiff\u2019s statements of 16April 2008 (see paragraph15 above) and the additional autopsy report (see paragraph 14 above) \u2013 the experts also categorically and officially stated that there had been no bruising around M.P.\u2019s eyes, unlike what had been claimed by the applicant.","44.By a decision of 19December 2014 the prosecutor again discontinued the pre-trial investigation. He relied on the entirety of the evidence which he cross-referenced \u2013 including that obtained after the last resumption of the criminal investigation \u2013 and held that no crime had been committed, holding that M.P. had died as a result of suicide. For the prosecutor, suicide as the cause of death was also corroborated by the statements of M.P.\u2019s lawyer, who stated that on 14 April 2008 M.P. had been acting calmly, had been responsive, had not complained about anything and had not been agitated (see paragraph 8 in fine above). Among other things, the prosecutor also noted that an empty box of matches had been found in M.P.\u2019s cell, and that the cell had had a toilet and burned matches could have been disposed of there (see paragraphs 11, 21 and 26 above). Although the blanket which had been given to the forensic expert on 15April 2008 (see paragraph 13 above) had not been found during the later stages of the pre-trial investigation, there was sufficient data to confirm that M.P. had put his neck into a noose made from a blanket, and there was no evidence that someone had forced him to do that or that someone had hanged him.","45.The applicant appealed against the prosecutor\u2019s decision, asserting that the criminal investigation had not proven that her son had committed suicide. She still insisted that the evidence which had been gathered during the pre-trial investigation had been contradictory and had raised doubts. The applicant still considered that her son could have been a victim of police violence.","46.The criminal proceedings in respect of M.P.\u2019s death were ultimately terminated by a ruling of the Panev\u0117\u017eys Regional Court on 27April 2015, dismissing an appeal by the applicant. The court noted that numerous pieces of evidence had been collected and examined. It also emphasised that two of the applicant\u2019s main criticisms had been answered. Firstly, after the last re-opening of the pre-trial investigation an examination of the video recordings was performed by a forensic expert, who had disproved the applicant\u2019s allegation that the video recordings from Bir\u017eai police station had been tampered with (see paragraph42 above). Secondly, report no.EKM52\/14(01) (see paragraph 43 above), as well as earlier medical reports (see paragraphs 13 and 14 above), had reached the same conclusions \u2013 that M.P. had died as a result of being strangled in a noose. The court noted that those medical reports had explained that M.P. could have died in the manner which had been demonstrated in the second reconstruction, and also noted that there had been no signs of injuries on M.P.\u2019s body which he could not have inflicted himself. The applicant\u2019s allegation that M.P.\u2019s death could have been caused by someone else had been examined throughout the criminal investigation but no evidence of that had been found. The court also noted that the prosecutor had reached reasoned conclusions after having performed a comprehensive analysis of the gathered evidence. Although the applicant had expressed doubts in respect of the evidence gathered, in her appeal she had not presented any new arguments regarding what particular pre-trial investigation actions had not been performed, what data had not been evaluated, or what investigative actions, had they been performed, would have clarified any important circumstances in this case. Lastly, the court concluded that during the pre-trial investigation all actions provided by law had been used to obtain evidence. Even so, there was \u201cno unquestionable data (neabejotini duomenys)\u201d that a crime had been committed.","B.Internal investigation into the incident at Bir\u017eai police station","47.After M.P.\u2019s death, the police also conducted an internal investigation. It was led by a senior investigator at the Panev\u0117\u017eys city police. On 30May 2008 the internal investigator produced report no.50-1-IS-42, which was approved by the chief of the Panev\u0117\u017eys city police.","48.Having examined the available material, which included both the criminal case-file regarding the theft and the material of the criminal case-file concerning the circumstances of M.P.\u2019s death, the internal investigator concluded that there was no information which could lead to a conclusion of any kind of abuse of M.P. by the police officers.","49.Within the course of the internal investigation, the safeguarding of M.P. while in police custody was also examined. On the basis of video recordings from the police station the internal investigation established that during his shift the guard D.M. had patrolled his area only a few times and had stopped only briefly at the doors of the cells. He had also only twice slowly walked the corridor along his post and only once, while patrolling his area, had he looked inside cell no.1, where M.P. had been held. The investigator concluded that D.M. had thus failed to perform his duties in accordance with the internal instruction on ensuring constant supervision of detainees, and had thus committed a disciplinary offence. Lastly, the investigator noted that by making a statement during the internal investigation that he had ensured constant supervision of the detainees, D.M. had given false testimony. Afterwards D.M. was given a reprimand.","50.As to the other guard \u2013 R.S. \u2013 the internal investigation established that he had monitored the situation at his post via video cameras, which he considered a possible way of carrying out his duties. The internal investigator admitted that such a method of carrying out his duties could not be seen as unreasonable, even if there had been certain technical errors in how his functions had been assigned. As a result, no disciplinary sanctions were imposed on R.S."],"121":["1. The applicant, Mr Charles Bernard O \u2019 Neill, is a British national who was born in 1962 and is currently serving a prison sentence at HMP Saughton, Edinburgh. He was represented before the Court by Mr J. Rhodes, a lawyer practising in Glasgow, Scotland, with McClure Collins Solicitors.","2. The United Kingdom Government (\u201cthe Government\u201d) were represented by their Agent, Mr Paul McKell of the Foreign and Commonwealth Office.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","1. Indictment and criminal trial","4. In September 2008 the applicant was indicted in the High Court along with a co-accused (\u201cWL\u201d) on a number of serious charges. These included the murder of AG, attempting to defeat the ends of justice by disposing of her body, and a series of sexual offences against children. The trial took place in two parts, before different juries. The charges in the first part of the trial related to the sexual offences, and the charges in the second part of the trial related to the murder of AG. The present complaint is solely concerned with the first part of the trial, which took place from 26 April to 12 May 2010. The second part of the trial has already been considered by the Court in O \u2019 Neill and Lauchlan v. the United Kingdom, (no. 41516\/10 and 75702\/13, 28 June 2016).","5. The sexual offences on the indictment included the following:","\uf02d charge 5 (against the applicant only): assaulting IY (a fourteen year old with learning difficulties), drugging him, taking hold of him by the body, tickling him, rubbing him on the body, pulling him down onto a bed, removing his lower clothing and penetrating his hinder parts to his injury;","\uf02d charge 7 (against the applicant and WL) detaining a fourteen year old (DW) against his will, struggling with him, repeatedly attempting to kiss him, attempting to induce him to consume controlled drugs, concealing him within a locked wardrobe, urinating on him, holding him down, and attempting to have unnatural carnal connection with him;","\uf02d charge 8 (against the applicant and WL): assaulting a seventeen year old (JG, who was described by the courts as being a \u201cperson of very limited intelligence\u201d), sharing a bed with him, handling and sucking his private member and inducing him to do the same, inducing him to consume controlled drugs and alcohol, inducing him to masturbate himself, penetrating his hinder parts and having unlawful carnal connection with him; and","\uf02d charge 10 (against the applicant and WL): intentionally meeting a six year old (SA) with the intention of engaging in unlawful sexual activity involving him or in his presence.","6. Charge 8 related to conduct which allegedly occurred in both Scotland and England. However, on the witness stand JG only gave evidence of conduct which had taken place in England. Consequently, at the conclusion of the prosecution case, the defence submitted that there was no case to answer on charge 8 as there was no evidence of a crime having been committed in Scotland. The prosecution conceded that this was the case and, pursuant to section 97 of the Criminal Procedure (Scotland) Act 1995 (see paragraph 21 below) the trial judge acquitted the applicant and WL of charge 8.","7. At the relevant time, the Crown had no right to appeal an acquittal in solemn proceedings.","8. According to Scottish criminal law, there must be at least two sources of evidence to prove every element of the charge which is essential to the definition of the crime. Thus, no-one can be convicted of a criminal offence upon the unsupported evidence of a single witness, however credible or reliable that witness might be. Notwithstanding the acquittal on charge 8, the trial judge allowed the prosecution to rely on the evidence it had led in respect of charge 8 as corroboration for charges 5 and 7.","9. In the course of his summing up to the jury, the trial judge gave the jury the following direction on the presumption of innocence:","\u201cThe first general direction I wish to give, ladies and gentlemen is to make it clear that an accused person is presumed to be innocent of any charge against him. This presumption of innocence which any accused enjoys is one that exists throughout the case unless and until the accused is proved to be guilty. In a criminal court in Scotland no one is required to prove that he is innocent and I \u2019 m sure none of us would wish the position to be any different.\u201d","10. Then, having taken the jury through the indictment, the trial judge emphasised that they were concerned only with charges 5, 7 and 10, and it was only in respect of those charges that they were required to return verdicts.","11. In respect of corroboration, he directed them:","\u201c... in Scotland no one can be convicted of a criminal offence upon the unsupported evidence of a single witness no matter how credible and reliable that single witness may be. Scots law insists that there must be corroboration, that is to say separate evidence from some other independent credible and reliable source which confirms or supports the principal source of evidence. The separate sources of evidence may be of a different character to each other. ... however, whether the evidence upon which the Crown relies is direct evidence or circumstantial evidence or a combination of the two, at least two separate sources of evidence are needed to prove what I have referred to as the essential facts in the case, that is whether the crimes charged in the indictment were committed and if they were whether the accused committed them.\u201d","12. He later expanded on that direction, stating:","\u201cNow ladies and gentlemen you \u2019 ll recall that, at an earlier stage, I gave you general directions about the need for corroboration ....","Sometimes, as counsel explained, and for various reasons, there is little or no eyewitness evidence and this can happen, as you can readily understand, especially in the case of sexual offences. In such cases a special rule can apply. This is the rule of mutual corroboration and it is necessary in the circumstances of this case that I should explain it to you.","It is, as was mentioned in the speeches, also known by this rather mysterious name of the Moorov doctrine after the case in which it was first developed by the court. Now this rule can apply where (a) the accused is charged with a series of similar crimes, (b) there is a different victim of each crime, (c) the commission of each crime is spoken to by one credible and reliable witness, and (d) the accused is identified as the person who committed each crime. The rule is this, if you are satisfied that the crimes charged are so closely linked by (1) their character, (2) the circumstances of their commission, and (3) time as to bind them together as parts of a single course of criminal conduct systematically pursued by the accused, then the evidence of one witness about the commission of one crime is sufficiently corroborated by the evidence of one witness about the commission of each of the other crimes.","... ... ...","Now you will have noted straight away ladies and gentlemen that I \u2019 ve referred here to charge 8 and you will of course recall that the accused have been acquitted of that charge but this does not mean that the evidence which you heard in relation to charge 8 cannot be considered by you to the extent that it may be relevant to proof of charges which remain live. So the Crown is entitled to rely upon the evidence given by [JG] for the purpose of the rule of mutual corroboration which I have explained to you.","From what I have just explained ladies and gentlemen it will be evident to you that the rule of mutual corroboration does not apply, and I so direct you, in respect of charge 10. This is because charge 10 is not, I consider, sufficiently similar to charges 5, 7 and 8. So you cannot rely upon the evidence of any of the alleged victims of charge 5, 7 or 8 as sources of mutual corroboration in regard to charge 10, nor can you use the evidence of any of the alleged victims of charges 5, 7 or 8 as support for any of the witnesses who spoke to charge 10. That last charge, number 10, stands on its own in the sense that the rule of mutual corroboration does not apply to it for the purposes of the present case and I trust that \u2019 s clear.","... ... ...","Now, if you believe any two complainers from charges 5, 7 and 8 ... [y] ou then have to decide if by reason of the character, circumstance and time of each alleged offence the crimes are so closely linked that you can infer that the accused was pursuing a single course of criminal conduct. It is not enough if all that is shown is that the accused had a general disposition to commit this kind of offence and I wish to stress to you ladies and gentlemen that you must apply this rule of mutual corroboration, the so-called Moorov doctrine with caution.","... ... ...","So far as the second accused [the applicant] is concerned the position is as follows: you would be entitled to use the evidence of [JG] to corroborate the evidence of [IY] and the evidence of [DW], and you would be entitled to use the evidence of [IY] and [DW] as mutually corroborative.","... ... ...","Now I direct you ladies and gentlemen that, in this case, there is enough evidence in law that the crimes alleged in each of the charges 5, 7 and 8 are sufficiently closed in time, character and circumstance for the rule to apply but it is for you to decide if the evidence of the respective complainers is reliable and credible, secondly if, the necessary link in time character and circumstances has been established and thirdly, if this special rule should be applied.\u201d","13. The jury convicted the applicant of charge 5 and both the applicant and WL of charges 7 and 10.","14. In his sentencing remarks, the trial judge observed that the applicant was \u201ca relentless and murderous paedophile\u201d and that he and WL represented a \u201chigh risk of safety to the public, particularly young men and boys, especially those suffering from some form of vulnerability\u201d. Having already imposed a life sentence in respect of the murder charge, of which the applicant would have to serve a minimum of thirty years, he imposed a further three ten-year sentences in respect of charges 5, 7 and 10, all of which were to run concurrently with the life sentence.","2. Appeal","15. The applicant and WL appealed against their convictions. Permission was refused following the first sift, but on second sift the applicant was granted permission for leave to appeal in relation to his submission that the trial judge had erred in directing the jury that they could use the evidence of JG (which formed the basis of charge 8, of which the applicant had been acquitted) to corroborate the evidence on charges 5 and 7.","16. The Appeal Court dismissed the appeal on 19 June 2014. At the outset, it noted that the acquittal on charge 8 had been an error. According to the court, if an accused person maintained that a court had no jurisdiction to try a charge, he should render a plea to that effect and, if the point was sound, the correct remedy would be for the court to \u201cdesert the diet pro loco et tempore \u201d as regards that charge (that is, stop the charge being determined during that particular trial). That did not happen in the present case; instead, the defence had made a submission of no case to answer in respect of charge 8, and the trial judge had acquitted the applicant of that charge pursuant to section 97 of the 1995 Act (see paragraph 21 below). However, as section 97 was purely concerned about whether there was sufficient evidence to support a charge, it was not a vehicle within which to raise a \u201cno jurisdiction\u201d point; and it was not competent for the court to acquit a defendant of a charge over which it had no jurisdiction.","17. The Appeal Court \u2019 s observations on this point had no effect on the acquittal on charge 8, which still stood. Nevertheless, the Appeal Court found that the evidence of indecent assault and sodomy in England, which could properly have been libelled in any event, either as a charge or otherwise, remained available to provide corroboration for the other charges in the indictment.","18. In respect of Article 6 \u00a7 2, the Appeal Court found:","\u201c[35] There is no breach of Article 6(2) by reason of the evidence on charge 8 being advanced by the Crown in the one single criminal process as proof of charge 7. ... [A]t the point of seeking a conviction on charge 7, all that the Crown were asserting was that the appellants had committed what the appellants had had notice of in charge 8, albeit that, by the time the Crown addressed the jury, a conviction could not follow upon that charge for technical reasons. The Crown contention had been consistent throughout the proceedings and no party could reasonably have thought that the section 97 acquittal ... could have had the effect of barring the Crown from relying on the evidence on charge 8 as mutual corroboration of a charge awaiting judicial determination.","[36] As the European Court said in Sekanina v. Austria (1993) 17 EHRR 221 (at paras 28 and 30), there is a distinction to be drawn between cases where there has been a decision on the merits of an allegation and one where there has not. In the former, it is not open to the state to assert the guilt of a person whose innocence has been established. That is not what, in reality, occurred in this case. The appellants were not acquitted of the Blackpool element in charge 8 as a result of a decision on its merits but because the court considered that it had no jurisdiction to try the matter. The situation ( Sekanina v. Austria (supra); Asan Rushiti v. Austria (2011) 33 EHRR 56; Lamanna v. Austria, 10 July 2001 (no 28923195); Allenet de Ribermont v. France (1995) 20 EHRR 557; Geerings v. Netherlands (2008) 46 EHRR 49) where there is an assertion of guilt in a separate process in circumstances in which that guilt has not been properly established, or has even been rejected, in a criminal court is not in any event analogous. This separate argument advanced by Mr O \u2019 Neill must be rejected.","[37] The trial judge \u2019 s directions on charge 8 cannot be faulted. ... What the judge did do was direct the jury clearly on the need to believe a particular complainer before they could use his evidence as mutually corroborative of the testimony of another complainer in respect of the actings of the same accused. He directed the jury with equal clarity on the need for them to find the necessary similarities in, as he put it, the character, circumstances and time of offence.\u201d","19. The applicant sought leave from the Appeal Court to appeal to the Supreme Court of the United Kingdom, submitting, inter alia, that the Appeal Court had erred in its interpretation of Sekanina v. Austria, 25 August 1993, Series A no. 266 \u2011 A. The Appeal Court refused leave to appeal on 21 August 2014. It found that no issue arose as to the compatibility of its earlier judgment with the Convention and, in any case, that the matter was not one of general public importance. It observed:","\u201cOn the central point about the interpretation of Sekanina v. Austria, the court is unaware of any European Convention jurisprudence to the effect that an acquittal of a charge by a court, which was not competent to do so, is in some way binding and that it precludes the use of evidence of that charge being used by a court for the purposes of determining a charge which is competently before it. Questions of the jurisdiction to try a criminal charge and the use of evidence of crimes allegedly committed in other jurisdictions, are matters for the domestic law and do not engage the Convention.\u201d","20. On 25 September 2014 and again on 6 October 2014, the Scottish Legal Aid Board refused the applicant legal aid for the purpose of seeking special leave to appeal directly to the Supreme Court.","B. Relevant domestic law and practice","1. A submission of no case to answer","21. Pursuant to section 97(1) of the Criminal Procedure (Scotland) Act 1995, immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer, both (a) on an offence charged in the indictment; and (b) on any other offence of which he could be convicted under the indictment. Subsections 97(2)-(4) provide:","\u201c(2) If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above, he shall acquit him of the offence charged in respect of which the submission has been made and the trial shall proceed only in respect of any other offence charged in the indictment.","(3) If, after hearing both parties, the judge is not satisfied as is mentioned in subsection (2) above, he shall reject the submission and the trial shall proceed, with the accused entitled to give evidence and call witnesses, as if such submission had not been made.","(4) A submission under subsection (1) above shall be heard by the judge in the absence of the jury.\u201d","2. Corroboration","22. Before someone can be convicted of an offence in Scotland, the law requires corroboration: that is, there must be at least two sources of evidence to prove every element of the charge which is essential to the definition of the crime. Thus, no accused person can be convicted on the evidence of one witness alone, however credible. The two sources of evidence required need not be of equal weight, and corroboration can take the form of direct or circumstantial evidence.","23. The law in Scotland also recognises the doctrine of mutual corroboration. This means that the credible but uncorroborated evidence of a single witness to an offence may corroborate, and be corroborated by, the credible but uncorroborated evidence of a single witness to another offence. In the leading case on mutual corroboration, Moorov v. HM Advocate [1930] JC 68, the accused was a shopkeeper who was convicted of a number of assaults or indecent assaults on a series of female shop assistants. His appeal against conviction centred on those charges where the only direct evidence against him was that of the shop assistant in question. The Appeal Court found that the shop assistants \u2019 evidence could provide mutual corroboration for each other. However, the Appeal Court made clear that the rule only applied when the similar charges were sufficiently connected with, or related to, each other in time, character and circumstance.","3. The admissibility of evidence in a criminal trial following an acquittal","24. The evidence that may be introduced by the prosecution to prove a crime charged in an indictment can include evidence which, in itself, could constitute a separate crime ( Griffen v. HM Advocate [1940] JC 1). This remains the case even if the prosecution would be unable to seek a conviction in respect of that separate crime or decide to withdraw the charge relating to that separate crime ( McIntosh v. HM Advocate [1986] SCCR 496; and Danskin v. HM Advocate [2002] SLT 889). Furthermore, the evidence remains available to prove the remaining charges even if there has been an acquittal ( HM Advocate v. Mair [2013] HCJAC 89 and Cannell v. HM Advocate [2009] SCCR 207). In Mair the Court explained the position as follows:","\u201cThe practice of the court is that generally the Crown cannot lead evidence of a crime not charged. If a particular passage of evidence is indicative of the commission of a crime in Scotland, fair notice dictates that the crime is libelled in the indictment. If it is not, an objection to the evidence may be sustained. In due course, an accused may be acquitted of the particular charge either because of lack of evidence or because the charge was libelled only for these evidential purposes and the Crown elect not to proceed with it for reasons of practical utility. However, evidence available to prove one charge may be relevant only to another charge on an indictment. The evidence remains available to prove the remaining charges, even if there has been an acquittal on the other, possibly \u2018 evidential \u2019, one. That much is commonplace and it applies, in particular, to the evidence of the disposal of telephones or text messages in this case. The use of the evidence in this way does not contravene the principle that, once someone is acquitted of a crime, the Crown should not thereafter suggest that he is nevertheless guilty of that crime. All that the Crown seek to do is use evidence to prove a charge of which they have consistently maintained the respondent is guilty and where that guilt remains to be judicially determined.\u201d","25. Evidence should therefore only be available for mutual corroboration where it has been led in respect of a charge which has not been \u201cjudicially determined\u201d. Indeed, the courts have expressly recognised that it would be \u201cinconsistent\u201d for a jury to acquit of a charge, having rejected the evidence on it as incredible and unreliable, while at the same time returning a verdict of \u201cguilty\u201d in respect of another charge which depends for sufficiency on the evidence of the first being held to be credible and reliable ( Ogg v HM Advocate 1938 JC 152).","4. Using evidence in a Scottish court from a foreign jurisdiction","26. Evidence of a crime committed outside Scotland is also capable of corroborating a crime committed in Scotland (see, for instance, HM Advocate v. Joseph [1929] JC 55). However, in Scotland it is incompetent to charge, and to lead evidence about a criminal offence committed in a foreign jurisdiction, except where statute has provided for a particular offence to have extraterritorial effect in the jurisdiction. In order for the Crown to be permitted to lead evidence of a crime committed in a foreign jurisdiction, it must show (a) that the criminal offence forms an integral part of the crime which is libelled as having taken place in Scotland, or (b) that the connection between the offence abroad and the offence in Scotland is sufficiently close as to make it relevant to prove the offence abroad in the course of proving the crime in Scotland."],"122":["1. The applicant, Ms Emabet Yeshtla, is a naturalised Dutch national of Ethiopian origin, who was born in Ethiopia in 1968 and lives in Beverwijk. She was represented before the Court by Mr W. Fischer, a lawyer practising in Haarlem.","2. The Netherlands Government (\u201cthe Government\u201d) were initially represented by their Deputy Agent, Ms L. Egmond, and subsequently by their Agent, Ms B. Koopman, both of the Ministry of Foreign Affairs.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. In 1986, after becoming pregnant, the applicant was evicted by her parents from the family home in Ethiopia. On 22 October 1986, her son Y was born in Ethiopia. In 1996, leaving Y in the care of his foster father, she fled Ethiopia and, on an unspecified date and for reasons undisclosed, was eventually granted an asylum-based residence permit in the Netherlands. On an unspecified date in 2001 she was granted Dutch nationality.","5. On 6 April 2002, after having been abandoned by his foster father who had left Ethiopia for Eritrea, Y managed to reach the Netherlands where on 12 April 2002 he applied for asylum. In September 2002, he was reunited with the applicant who, on 8 October 2002, was entrusted with Y \u2019 s care by the \u201cNidos\u201d foundation (juvenile protection agency for unaccompanied minor asylum-seekers). A subsequent DNA test confirmed that the applicant was indeed Y \u2019 s mother.","6. On 18 April 2003 the Minister for Immigration and Integration ( Minister voor Vreemdelingenzaken en Integratie ) rejected Y \u2019 s asylum application. The Minister did not find it established that Y had attracted the negative attention of the Ethiopian authorities or had a well-founded fear of persecution within the meaning of the 1951 Geneva Convention relating to the Status of Refugees. The Minister further held that the special policy for unaccompanied minor asylum-seekers did not apply as Y was staying with the applicant. Y unsuccessfully appealed this decision in administrative proceedings in which the final decision was given on 9 February 2004.","7. On 18 July 2003, at the applicant \u2019 s request, the Utrecht Regional Court ( rechtbank ) discharged Nidos from its guardianship ( voogdij ) of Y and entrusted it to the applicant. On 22 October 2003 Y was registered at the applicant \u2019 s address in the Beverwijk municipal personal records database ( gemeentelijke basisadministratie persoonsgegevens ).","8. On 9 July 2004 Y applied for a residence permit for family reunification with a parent ( gezinshereniging met ouder ) in the Netherlands. This application was rejected on 20 October 2004. This decision became final when no objection ( bezwaar ) had been filed within the statutory defined four weeks \u2019 time-limit.","9. On 17 November 2006 the Central Agency for the Reception of Asylum-Seekers ( Centraal Orgaan Opvang Asielzoekers ) informed Y that, as the time-limit for his voluntary departure ( vertrektermijn ) had expired, he was eligible for forced removal and his entitlement to reception facilities for asylum-seekers had ended de jure. Accordingly, his entitlement to these facilities would end as from 14 December 2006.","10. On 13 April 2007 Y filed an application with the Ethiopian mission in Brussels to be provided with Ethiopian travel documents. On 30 April 2007 this mission informed Y that, as he had not produced any evidence confirming his Ethiopian nationality, they could not provide him with an Ethiopian passport or laissez-passer.","11. On 22 October 2007 Y filed a fresh application for a residence permit for family reunification with a parent in the Netherlands. This application was rejected on 8 November 2007 by the Deputy Minister of Justice ( Staatssecretaris van Justitie ). On 22 November 2007 Y. filed an objection against this decision with the Deputy Minister.","12. On 19 February 2009 \u2013 after having been informed on 16 February 2009 by the Netherlands immigration authorities that he qualified for a residence permit for migrants who, through no fault of their own, cannot leave the Netherlands ( buitenschuldvergunning ) \u2013 Y withdrew his objection (see paragraph 11 above). On 17 March 2009 he applied for the so-called \u201cno fault\u201d residence permit and, on 10 April 2009, he was granted such a permit with an initial validity from 17 March 2009 to 17 March 2010.","13. On 26 September 2005 the applicant \u2013 in receipt of general welfare benefits under the Work and Social Assistance Act ( Wet Werk en Bijstand ) for a single person as well as means-tested housing benefit ( huurtoeslag; hereinafter \u201chousing benefit\u201d) \u2013 had already applied for housing benefit for 2006, estimating her annual 2006 income for assessment purposes ( toetsingsinkomen ) at 13,419 euros (EUR) and that of Y at nil. This application was apparently accepted, as was a subsequent application for 2007.","14. On 14 July 2007 the applicant was informed by the Tax Department that she had in fact unduly received housing benefit for 2006 and 2007 because Y did not hold a valid residence permit. Accordingly, the housing benefit was stopped as from 1 January 2006 and the applicant was to repay the amounts unduly received. The applicant filed an objection with the Tax Department ( Belastingdienst Toeslagen ), arguing that her son Y was staying in the Netherlands lawfully and that he was caring for her. Explaining that her income consisted of welfare benefits for a single person, she further asked permission to reimburse the EUR 1,562 claimed in instalments if that claim were maintained.","15. On 26 June 2009, after revision of an earlier decision, the Tax Department informed the applicant that \u2013 according to information obtained from the immigration authorities \u2013 Y had not been residing lawfully in the Netherlands in 2006 and 2007, apart from a brief period from 22 October to 2 November 2007. The applicant was further informed that, pursuant to section 9 \u00a7 3 of the General Act on Means-tested (Benefits) Regulations ( Algemene Wet Inkomensafhankelijke Regelingen; \u201cAWIR\u201d), there was no entitlement to housing benefit in case of a co-resident ( medebewoner ) \u2013 like Y in 2006 and 2007 as indicated by the applicant \u2013 who was not lawfully staying in the Netherlands. Accordingly, and apart from the period between 22 October and 2 November 2007 when Y \u2019 s stay in the Netherlands had been lawful pending a decision on his fresh application for a residence permit, the applicant had unjustly received housing benefit and should repay the amounts unduly received.","16. The applicant \u2019 s appeal against the Tax Department \u2019 s decision was rejected on 16 October 2009 by the single-judge Chamber ( enkelvoudige kamer ) of the Haarlem Regional Court. It noted that it was not in dispute that Y was a co-resident within the meaning of section 2 \u00a7 1(e) of the AWIR. In so far as the applicant argued that the refusal to grant her housing benefit was in breach of Article 8 of the Convention, the Regional Court held that this refusal did not, as such, entail an interference with the applicant \u2019 s rights under Article 8 and that it had not appeared that by the discontinuation of the housing benefit she had become unable to continue her family life. Moreover, even assuming there had been an interference with the applicant \u2019 s rights under Article 8 \u00a7 1, this was justified under the terms of the second paragraph of this provision. It also rejected the applicant \u2019 s arguments based on Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1, Article 26 of the International Covenant on Civil and Political Rights, Article 13 of the European Social Charter and Article 11 of the International Covenant on Economic, Social and Cultural Rights.","17. On 28 November 2009 the applicant filed a further appeal with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ), submitting, inter alia, that her welfare benefits amounted to EUR 820 per month of which she spent EUR 730 on recurrent fixed expenses.","18. On 22 December 2010 the Administrative Jurisdiction Division accepted the applicant \u2019 s further appeal, quashed the impugned judgment of 16 October 2009, quashed the decision of 26 June 2009, ordered that the legal effects of the latter decision were to remain intact and made a cost order against the fiscal service. It considered:","\u201c2.4 Yeshtla argues that the Regional Court has unjustly taken the linkage principle [1] into account in its considerations and disregarded that, in her situation, the linkage principle was no sufficient justification for the making of a distinction between a tenant with a co-resident with or without a valid residence permit. In this context she submits that it is she and not her son who is affected by the termination of housing benefit and that it cannot be expected of her that she evict her son from her home. On this point she refers in particular to Article 8 [of the Convention] also read in conjunction with Article 14 of the Convention. .... She further argues that the termination of the housing benefit ... and the recovery of housing benefit already paid can lead to interference with the right to respect for family and private life included in Article 8 of the Convention.","2.4.1. The Regional Court has correctly included the linkage principle in its considerations as this principle forms the basis for the fiscal authorities \u2019 application of section 9 \u00a7 3 of the AWIR. It appears from the drafting history of the Benefit Entitlement (Residence Status) Act ( Koppelingswet ) that the linkage principle laid down in this Act seeks to link entitlement to [social security] benefits ... paid out of public funds to lawful stay in the Netherlands. The aim of the linkage principle is to prevent enabling irregular aliens from continuing their irregular stay or acquiring a semblance of complete legality through receipt of social security benefits. It further appears from the drafting history of the amendment to the Housing Benefit Act ( Huursubsidiewet ) that the purpose has always been to exclude from housing benefit households with co-residents who are staying in the Netherlands unlawfully. The linkage principle has been further developed in section 9 \u00a7 3 of the AWIR in which it is stipulated that the residence status of the co-resident is decisive for entitlement to housing benefit. As rightly considered by the Regional Court, the purpose of the provision cited is that the co-resident who is residing in the Netherlands without a residence permit should not (in )directly benefit from the allowance granted to Yeshtla. As the son was a co-resident of Yeshtla and, at the material time, was not residing in the Netherlands lawfully, Yeshtla was not entitled \u2013 in 2006 and 2007 with exception of the month November 2007 \u2013 to housing benefit. In view of the clear wording of section 9 \u00a7 3 of the AWIR, the purpose of the linkage principle elaborated therein and the aforementioned drafting history of the Benefit Entitlement (Residence Status) Act and the Housing Benefit Act, this is not altered by the fact that the applicant is a Dutch national.","2.4.2. Having regard to the above considerations, the linkage principle as such first and foremost constitutes a reasonable and objective justification for distinguishing between a tenant with a co-resident who has or who does not have a valid residence permit. It is further paramount that the termination, revision and recovery of housing benefit does not, as such, entail that by definition Yeshtla can no longer cohabit with her son.","In accordance with Article 94 of the Constitution ( Grondwet ), statutory provisions are nevertheless not applicable if such application is in conflict with a provision of treaties or of resolutions by international institutions that are binding on all persons. In a concrete case, the termination, revision and recovery of already paid housing benefit of a parent further to the cohabitation with an adult child may in very exceptional circumstances be regarded as being in breach of the prohibition of discrimination of Article 14 in conjunction with the right to respect for family and private life laid down in Article 8, in which event the statutory provision concerned should not be applied. The fiscal service was therefore wrong to take the position that, in such a case, it would neither be competent nor obliged to disapply section 9 \u00a7 3 of the AWIR.","In her objection Yeshtla argued, inter alia, that she is seriously ill \u2013 she is HIV-infected \u2013 and that her son cares for her. Yeshtla further submitted that she has no one else in the Netherlands and depends on her son. In addition, her son obtained a residence permit on 16 February 2009 because, through no fault of his own, he cannot leave the Netherlands, also in view of the letter of the Ethiopian Embassy of 30 April 2007 that his Ethiopian nationality has not been demonstrated and that he is thus not eligible for travel documents. Given these circumstances, the fiscal service ought \u2013 prior to deciding on Yeshtla \u2019 s objection \u2013 to have examined whether these circumstances were so exceptional that they, in this concrete case and after having balanced the interests of those concerned, should lead to the disapplication of section 9 \u00a7 3. The fiscal service has not done so.","2.4.3. Having regard to the above, the decision ... of 26 June 2009 has been prepared with insufficient care and lacks adequate reasoning, thus the fiscal service has acted in violation of sections 3:2 and 7:12 \u00a7 1 of the General Administrative Law Act ( Algemene Wet Bestuursrecht; \u201cAWB\u201d). This has not been recognised by the Regional Court.","2.5. The appeal is well-founded. The impugned ruling must be quashed. Doing what the Regional Court should have done, the Administrative Jurisdiction Division will declare the appeal against the decision of ... 26 June 2009 well-founded. This decision qualifies for annulment in that it violates sections 3:2 and 7:12 \u00a7 1 of the AWB.","2.6. The Administrative Jurisdiction Division, however, sees reason \u2013 in application of section 8:72 of the AWB \u2013 to leave intact the legal consequences of the decision of 26 June 2009. To that end, it is considered that the circumstances presented by Yeshtla cannot be regarded as so exceptional that they warrant the disapplication of section 9 \u00a7 3 of the AWIR. In this context it is of relevance that in the further appeal proceedings Yeshtla was requested to elaborate on her alleged dependency on her son in the light of her medical situation. The fact that, according to the general practitioner \u2019 s statement submitted by her, the presence of the son is desirable for social medical reasons, and that Yeshtla explained that she depends on her son for many everyday affairs as well as for hospital visits, is insufficient to find that very exceptional circumstances, within the meaning as set out above, pertain, as it cannot be deduced therefrom that the alleged dependence is of such a nature that the son can only provide the alleged care by cohabiting with his mother. ...\u201d","No further appeal lay against this ruling.","B. Relevant domestic law and practice","19. An overview of the relevant domestic law and practice relating to admission proceedings and the concept of \u201clawful stay\u201d is set out in the decision given by the Court in the case of Afif v. the Netherlands (no. 60915\/09, \u00a7\u00a7 26-32, 24 May 2011).","20. Article 93 of the Netherlands Constitution provides that the Convention forms part of domestic law. Pursuant to Article 94 of the Constitution, the provisions of the Convention take precedence over domestic statutory rules in case of conflict.","21. Means-tested housing benefit ( huurtoeslag ) is a form of tax credit intended to help meet housing costs for rented accommodation for persons\/families with a modest income. It is paid by the Tax Department.","22. According to the provisions of the Benefit Entitlement (Residence Status) Act, in force as from 1 July 1998, and section 10 of the Aliens Act 2000 ( Vreemdelingenwet 2000 ), the entitlement of aliens to any benefits in kind, facilities and social security benefits issued by decision of a public administrative authority is linked to the question whether they have legal residence in the Netherlands. This is referred to as the linkage principle ( koppelingsbeginsel ). An alien who does not have legal residence in the Netherlands is not entitled to any benefits granted by decision of a public administrative authority. Derogation is possible if the benefits relate to education for minors, the provision of essential medical care (i.e. prevention of life-threatening situations or loss of essential functions), the prevention of situations that would jeopardise public health or pose a risk to third parties (for instance prevention of infectious diseases, or care related to pregnancy and childbirth), or the provision of legal assistance to the alien concerned. Its aim is, on the one hand, to discourage irregular residence and, on the other, to prevent irregular residents from benefitting from social security facilities allowing them to become rooted in Dutch society and thereby making it increasingly difficult to expel them.","23. Section 9 \u00a7\u00a7 2 and 3 of the AWIR provides as follows:","\u201c2. In case the partner of the person concerned is a foreigner who does not have legal residence within the meaning of Article 8 of the Aliens Act 2000, the person concerned is not entitled to benefits.","3. If, in a means-tested (benefits) regulation, it is stipulated that in addition to the financial capacity of the person concerned and his\/her partner also the financial capacity of co-residents is of relevance for the assessment of an entitlement to or the level of benefits, the person concerned is not entitled to benefits in case a co-resident is an alien not having legal residence within the meaning of section 8 of the Aliens Act 2000. If the co-resident is an unaccompanied minor alien within the meaning of section 1, part (e), of the Regulation on Provisions for Asylum-Seekers and Other Categories of Aliens ( Regeling verstrekkingen asielzoekers en andere categorie\u00ebn vreemdelingen ), the first sentence shall not apply until the moment on which the right to reception facilities under this scheme ends.\u201d","24. In a ruling given on 22 October 2014 (ECLI :NL:RVS:2014:3788 ) the Administrative Jurisdiction Division addressed the issue of proportionality in connection with the (non-)application of the linkage principle. It held as follows:","\u201c4.1. ...Article 14 of the Convention and Article 1 \u00a7 1 of Protocol No. 12 to the Convention do not prohibit any difference in treatment of similar cases, but only treatment which must be regarded as an making an unjustified distinction. As is clear from the Court \u2019 s settled case-law, an unjustified distinction must be assumed if there is no reasonable and objective justification for the distinction made. This occurs if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Konstantin Markin v. Russia [GC], no. 30078\/06, \u00a7 125, ECHR 2012 (extracts) and Biao v. Denmark, no. 38590\/10, \u00a7 92, 25 March 2014).","4.2. The linkage principle is set out in section 10 \u00a7 1 of Aliens Act 2000. This provision is intended to link the right to allowances, services and benefits ( verstrekkingen, voorzieningen en uitkeringen ) financed by collective funds to legal residence in the Netherlands (Parliamentary Documents, Lower House of Parliament ( Kamerstukken II ) 1994\/95, 24 233, nr. 3, pp. 1-2). The premise that illegal aliens cannot claim entitlement to collective provisions is considered by the legislator as principle of the law relating to foreign nationals (Parliamentary Documents, Lower House of Parliament 1995\/96, 24 233, No. 6, pp. 3-4). As is apparent from AWIR \u2019 s enactment (Parliamentary Documents, Lower House of Parliament 2004\/05, 29 764, No. 3, p. 44), the legislator has not only considered the linkage principle applicable to the situation referred to in section 10 \u00a7 1 of the Aliens Act 2000 in which an alien applies for allowances, services and benefits, but in addition has also declared it applicable to the situations referred to in section 9 \u00a7\u00a7 2 and 3 of the AWIR in which a Dutch national applies for benefits and he has a partner or co-resident who has no legal residence in the Netherlands within the meaning of section 8 of the Aliens Act 2000.","The application of Article 9 \u00a7\u00a7 2 and 3 of the AWIR, like in the present case, leads to a distinction between, on the one hand, a Dutch national who cohabits with a Dutch partner or a foreigner with legal residence under Article 8 of the Aliens Act 2000 and, on the other, a Dutch national, like the [appellant], who cohabits with an alien who no longer has legal residence.","4.3. In the opinion of the Administrative Jurisdiction Division there exists, at least in principle, a reasonable and objective justification for making a distinction based on nationality and residence status as follows from both section 10 \u00a7 1 of the Aliens Act 2000 and section 9 \u00a7\u00a7 2 and 3 of the AWIR. As can be derived from the constant case law of the Administrative Jurisdiction Division, this distinction pursues a legitimate aim, taking into account that its application intends to prevent illegal aliens, by receiving benefits and allowances, from being enabled to continue their unlawful residence, acquire a sham appearance of full legality or build up such a strong legal position \u2013 or the appearance thereof \u2013 that after the procedure he appears to be virtually irremovable. The provisions of section 9 \u00a7\u00a7 2 and 3 of the AWIR are in line with this to the extent that these provisions in addition intend to prevent that the partner or co-resident who unlawfully resides in the Netherlands could also benefit from the benefits granted to the Dutch national (decisions of the Administrative Jurisdiction Division of 22 December 2010 in case no. 200909234\/1\/H2 and 29 January 2014 in case no. 201302396\/1\/A2).","4.4. Noting what the [appellant] has submitted, the Administrative Jurisdiction Division has to examine whether the means employed \u2013 termination of the benefits previously granted to the [appellant] \u2013 stands in reasonable proportion to the legitimate aim described above under 4.3. In so doing, the Division puts first that \u2013 as apparent from its founding history \u2013 the linkage principle originally solely intended to create a direct link between the legality of residence of aliens and entitlement to collective facilities of the Netherlands government. This principle has been extended to other situations in which a Dutch national or an alien with legal residence in the Netherlands and who on his\/her own account would be entitled to such facilities are nevertheless denied such facilities on the sole ground that he\/she cohabits with a partner or has a co-resident who has no legal residence. The withholding of such facilities, such as in the instant case the termination of means-tested housing benefit, means-tested child care benefit and means-tested contribution towards the costs of health insurance, to a Dutch national or an alien with legal residence in the Netherlands can in special circumstances in a concrete case be regarded as being in violation of the provisions aforementioned under 4.1, in which case the statutory provision concerned, given what is stipulated in Article 94 of the Constitution, should be set aside.","4.5. In the present case, the [appellant] has lost as from 1 October 2012 entitlement to housing benefit, child care benefit and contribution towards the costs of health insurance, to which he would have been entitled had he been considered as a single parent. The Administrative Jurisdiction Division derives from documents in the case-file that [the appellant \u2019 s partner] arrived in the Netherlands in the beginning of 2011 to study physiotherapy. For this purpose the Deputy Minister of Security and Justice granted her a temporary non-asylum based residence permit ( verblijfsvergunning regulier voor bepaalde tijd ), valid from 1 September 2011 to 1 September 2012. It has not been possible for [the partner] to continue these studies successfully because she has had to undergo a very intensive radiation treatment for thyroid cancer and had also fallen pregnant. During her pregnancy, these health problems aggravated so that, despite her efforts, she failed to pass the necessary exams for continuing her study and thus also to obtain an extension of the residence permit granted to her. This serious and worrying health situation has therefore been a decisive factor which resulted in [the partner] being unable to ensure the continuation of legal residency in the Netherlands.","The Administrative Jurisdiction Division further notes that, when the Tax Administration\/Benefits ( Belastingdienst\/Toeslagen ) ended the allowances at issue, the child of [the appellant] and [his partner] \u2013 which child has Dutch nationality \u2013 was two months old.","In view of the above-mentioned health situation of [the partner] and considering that a child is vulnerable at that age and, as regards primary care needs, is highly dependent on the parents, it could not in reason be expected from the [appellant] that he, in order to be able to claim as a single parent the allowances needed by him and and child, should ask his [partner] to leave the home. Indeed, it cannot be excluded that the [partner] should have taken the child for providing it with the necessary care, whereas it is plausible that she was not able to do so due to her health situation. In addition, in this the family life will be significantly disturbed whereby the interests of the very young Dutch child are being compromised which is not in accordance with the guarantees set out in Article 8 of the Convention and accepted by the Court ( Domenech Pardo v Spain (dec.), no. 55996\/00, 3 May 2001; and Jeunesse v. the Netherlands [GC], no. 12738\/10, \u00a7 109, 3 October 2014 www.echr.coe.int).","4.6. The above-described set of facts and circumstances, in which much weight is attached to the health situation of the [partner], leads the Administrative Jurisdiction Division to the conclusion that in this specific case there are such special circumstance that the Tax Administration\/Benefits in terminating the benefits at issue has deployed a disproportionate means in order to achieve the objective mentioned above under 4.3. This finding is not altered by the fact that the [partner] \u2013 as apparent from the letter of the Tax Administration\/Benefits of 22 October 2013 in the case-file \u2013 had lawful residence again as from 15 July and 5 August 2013 and that as from 1 August 2013 the [appellant] is entitled again to the benefits [at issue]. Indeed this does not alter that the [appellant] has not received any benefits over a considerable period \u2013 eleven months \u2013 of time. Application of section 9 \u00a7\u00a7 1 and 2 of the AWIR is therefore incompatible with the prohibition of discrimination laid down in ...Article 14 read in conjunction with Article 8 of the ECHR and Article 1 \u00a7 1 of Protocol 12 to the Convention. In view of the provisions of Article 94 of the Constitution, the Tax Administration\/Benefits should have refrained from applying section 9 \u00a7\u00a7 2 and 3 of the AWIR.","The argument succeeds.\u201d","25. General welfare benefits for a single person under the Work and Social Assistance Act ( Wet Werk en Bijstand ) amount to 70% of the net statutory minimum wage in the Netherlands. Means-tested housing benefit, which may be granted in addition to general welfare benefits and only upon request which is to be made each fiscal year anew, is intended to alleviate costs of renting accommodation for families\/persons with a modest income. Unlike general welfare benefits, housing benefit is not intended to secure a minimum level of subsistence ( bestaansminimum ).","26. On the basis of the Court \u2019 s case-law under Article 8 in respect of young adults and their parents ( inter alia, Bousarra v. France, no. 25672\/07, 23 September 2010; Osman v. Denmark, no. 38058\/09, 14 June 2011; and A.A. v. the United Kingdom, no. 8000\/08, 20 September 2011), an amendment (WBV 2016\/11) of the Aliens Act 2000 Implementation Guidelines ( Vreemdelingencirculaire 2000 ) entered into force on 8 September 2016, according to which the existence of family life within the meaning of Article 8 is generally accepted \u2013 without requiring the existence of further elements of dependency involving more than the normal emotional ties \u2013 for young adults between 18 and 25 years old and their parents where the former have always formed and continue to form a part of their parents \u2019 core family unit ( gezin )."],"123":["1. The applicant, Ms Ana Sr\u0161en, is a Croatian national, who was born in 1977 and lives in Dubrovnik. She was represented before the Court by Mr G. Lujak, a lawyer practising in Dubrovnik.","2. The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. On 1 August 2007 at about 10 p.m. the applicant and her husband were involved in a road traffic accident in which another person died. The applicant was immediately taken to a nearby hospital by the driver of another vehicle not involved in the accident.","5. Following the accident, there was an immediate response by an investigating judge of the Dubrovnik County Court ( \u017dupanijski sud u Dubrovniku ), who carried out an on-site inspection. The record of that inspection states that the investigating judge gave an order for blood and urine tests to be taken to determine the level of alcohol in the blood of the drivers and passengers of the two vehicles involved in the accident.","6. On 2 August 2007 at about 1 a.m. the police carried out alcohol tests on the applicant and her husband. The police request for the applicant to be tested indicates that she was the driver of one of the vehicles in the road traffic accident concerned.","7. A police report of 2 August 2007 indicates that the applicant had no alcohol in her blood or urine. The report states that she was either the driver of the vehicle concerned or a passenger in that vehicle. A police report of the same date in respect of the applicant \u2019 s husband states that he was either the driver of the vehicle concerned or a passenger in that vehicle.","8. On 29 September 2007 the police drew up an official note ( slu\u017ebena zabilje\u0161ka ) in which it was stated, inter alia, that the applicant had been driving one of the vehicles involved in the road traffic accident at issue.","9. On 10 October the police lodged a criminal complaint against the applicant in relation to charges of causing a road accident resulting in the death of one person.","10. On 19 November 2007 the Dubrovnik Municipal State Attorney \u2019 s Office asked that an investigation be opened in respect of the applicant. On the same day the applicant was summoned before an investigating judge of the Dubrovnik County Court. She was informed of the charges against her and her rights as an accused, including the right to be legally represented and to remain silent. The applicant was represented by a lawyer of her own choosing, and she said that she understood the charges against her and had decided to remain silent, making no comments whatsoever.","11. On 20 December 2007 the applicant was indicted in the Dubrovnik Municipal Court ( Op\u0107inski sud u Dubrovniku ) on charges of causing a road traffic accident with a fatal outcome.","12. During the trial the applicant was represented by a lawyer of her own choosing, and she was again advised of her rights and asked whether she understood the charges against her. The applicant said that she did and that she would remain silent. Exercising his right to testimonial privilege, her husband likewise did not give evidence at trial.","13. At a hearing held on 13 May 2010 A.G., the husband of the victim and a victim himself, gave evidence as a witness. He could not remember the accident owing to a brain injury he had sustained, but he remembered all that had happened before and after the accident. He said that the very next day after the accident, in the hospital, when he had regained consciousness for the first time after the accident, the applicant had been there and had expressed her condolences, and she had called him once again on the telephone. Her parents had also come to the hospital and apologised to him.","14. At a hearing held on 7 September 2010, at the request of the applicant \u2019 s defence lawyer, the Dubrovnik Municipal Court excluded from the case file the part of the police \u2019 s official note of 29 September 2007 where it was stated that the applicant had been driving one of the vehicles involved in the road accident at issue.","15. At a hearing held on 29 October 2010 M.V., the policeman who had carried out alcohol tests on the applicant and her husband, gave evidence as a witness. He said that the persons who had been tested had told him who had been driving and who had been a passenger, but he did not say what they had told him. The relevant part of his statement reads:","\u201cI obtained the information about who was the driver and who was a passenger from the persons who were tested for alcohol consumption. After that I drew up the report on testing for the presence of alcohol, opiates and medication in the bodies of the persons tested, and I carried out an interview with D.S. [the applicant \u2019 s husband].\u201d","After that evidence had been adduced, the applicant \u2019 s defence lawyer asked that all the parts of the reports on the alcohol tests concerning the applicant, her husband and A.G be excluded from the case file as unlawful evidence where they indicated who had been driving and who had been a passenger. That application was accepted on the grounds that that information had been obtained in connection with official notes drafted by the police and from \u201cpotential witnesses and the accused\u201d, and was therefore unlawful evidence under Article 9 of the Code of Criminal Procedure read in conjunction with Article 78 and Article 177 \u00a7\u00a7 2 and 4.","16. Upon an appeal by the prosecution, that decision was quashed on 8 February 2011 by the Dubrovnik County Court. The relevant part of the court \u2019 s decision reads:","\u201cThe Municipal State Attorney correctly stresses in his appeal that the act of testing Ana Sr\u0161en, D.S. and A.G. for alcohol consumption by means of a breathalyser ( alkometar ) [sic] was a lawful act and that the records of that testing constitute valid evidence for the purposes of the criminal proceedings, in particular because at the time when that evidence was collected none of the persons concerned was a suspect in respect of any criminal offence, and the police \u2019 s act in obtaining the information on where each of the persons involved in the road traffic accident at issue had been at the time of the accident was not an unlawful act, because the police are authorised to collect such information, and it is well known that the police carry out on-site inspections in cases of road traffic accidents and collect certain information from citizens. Lastly, the alcohol tests cannot be seen as witness statements or the statement of a suspect, but an act that the police are authorised to carry out and whose results constitute lawful evidence.\u201d","17. At a hearing held on 16 March 2011, relying on Article 177 \u00a7 4 of the Code of Criminal Procedure, the applicant \u2019 s defence counsel again objected to the information collected by the police and argued that such information could not serve as evidence in criminal proceedings.","18. During the trial a case file of the Dubrovnik Minor Offences Court concerning proceedings against the applicant for minor offences on account of the road traffic accident at issue was also consulted. The documents in the case file before the Court do not indicate what happened in those proceedings.","19. On 10 June 2011 the Dubrovnik Municipal Court found the applicant guilty and sentenced her to nine months \u2019 imprisonment. It found that her statement to the police during the alcohol testing was conclusive of the fact that she had been driving the car. The relevant part of the judgment reads:","\u201cOn the basis of the record [drawn up] by the Dubrovnik traffic police station on the test for the presence of alcohol, opiates or medication in the accused \u2019 s body, this court concludes that on the occasion in question it was she who was driving the ... vehicle ... because she herself gave that information to the police during the alcohol testing, and at the same time her husband, D.S., gave the information that he had been a passenger in the same vehicle, and since neither of them was under the influence of alcohol there is no reason to doubt their statements.\u201d","20. The applicant appealed against that judgment to the Dubrovnik County Court. She argued, inter alia, that the evidence relating to the tests on alcohol consumption could only serve to determine the level of alcohol in her blood, and could not be used as evidence of a confession that she had been driving the car, considering that the statement which she had given in that context had not been in accordance with the relevant procedural safeguards. The same was true as regards the statement given by her husband in the same circumstances saying that he had been a passenger in the vehicle in question.","21. On 22 March 2012 the Dubrovnik County Court dismissed the applicant \u2019 s appeal as ill-founded, upholding the first-instance judgment. It held that the information obtained by the use of the tests on alcohol consumption was evidence which the police had lawfully obtained whilst acting within the scope of their authority to conduct such examinations. The relevant part of the second-instance judgment reads:","\u201c... contrary to the allegations made in the appeal, this court does not find that there have been any grave breaches of the provisions [regulating] criminal procedure, since a judgment may be based on the information contained in a record of alcohol testing and the police are authorised to collect such information when they carry out on-site inspections, and at the time when the accused told the police that she had been driving a vehicle, she was not a suspect ...\u201d","22. The applicant challenged those findings by lodging a request for extraordinary review of a final judgment ( zahtjev za izvanredno preispitivanje pravomo\u0107ne presude ) with the Supreme Court ( Vrhovni sud Republike Hrvatske ). She argued that her statement to the police, as well as that of her husband, had been given contrary to the guarantees under Article 177 \u00a7\u00a7 3 and 5 of the Code of Criminal Procedure, and that under Article 78 \u00a7 3 of the same Code those statements had to be excluded from the case file. On 14 November 2012 the Supreme Court dismissed her complaints as ill-founded, upholding the findings of the Dubrovnik County Court. The relevant part of the Supreme Court \u2019 s judgment reads as follows:","\u201cIt should be stressed that testing for the presence of alcohol, opiates or medication in a person \u2019 s body is carried out under section 282 of the Road Traffic Safety Act, which is based on section 4 of the same Act, and is to be understood as the supervision [ nadzor ] of drivers and other [road] users and does not fall within the category of an inquest [ izvidi ] into criminal offences, as that term is defined under Article 177 of the Code of Criminal Procedure. Therefore, a record of alcohol testing is not an official note on interviewing citizens, and is not unlawful evidence which has to be excluded from the case file, as wrongly asserted by the applicant.\u201d","23. The applicant then brought her complaints before the Constitutional Court ( Ustavni sud Republike Hrvatske ). In her constitutional complaint, the applicant stressed in particular that her conviction was based on her own statement \u2013 a statement which she had given to the police without having been informed of her rights, such as the right to remain silent or to be represented by a lawyer. As regards her husband, he had opted to exercise his privilege not to give evidence in the criminal proceedings at issue, and therefore the statement which he had given to the police could not be taken into account. On 14 February 2013 the Constitutional Court declared her constitutional complaint inadmissible as manifestly ill-founded.","B. Relevant domestic law","24. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette nos. 110\/1997, 27\/1998, 58\/1999, 112\/1999, 58\/2002, 143\/2002, 62\/2003, and 115\/2006) read as follows:","Article 9","\u201c(1) The courts \u2019 decisions in criminal proceedings cannot be based on unlawfully obtained evidence (unlawful evidence).","(2) Unlawfully obtained evidence is evidence obtained by means of a breach of the fundamental rights of the defence, the right to dignity, reputation, honour and respect for private and family life guaranteed under the Constitution, law and international law, and evidence obtained in breach of the rules of criminal procedure in so far as set out in this Act, as well as any other evidence obtained unlawfully.\u201d","Article 78","\u201c(1) Where this Act provides that a judicial decision cannot be based on certain evidence, the investigating judge shall, at the request of the parties or ex officio, exclude such evidence from the file before the conclusion of the investigation, or before he gives consent for the indictment to be preferred without an investigation (Article 191 paragraph 2). The decision of the investigating judge is open to an appellate review.","(2) After the decision [on the exclusion of evidence] becomes final, the excluded evidence shall be sealed in an envelope and the investigating judge shall keep it separate from other files, and it may not be consulted or used in the proceedings.","(3) After the investigation and after consent is given to prefer the indictment without an investigation (Article 191 paragraph 2), the investigating judge shall also proceed in accordance with the provisions of paragraphs 1 and 2 of this Article in respect of all information which, in accordance with Article 174 paragraph 4 and Article 173 paragraph 3 of this Act, is given to the State Attorney or to police officers by citizens or by suspects who have been interrogated contrary to the provisions of Article 177 paragraph 5 of this Act.\u201d","Inquests into criminal offences","Article 177","\u201c(1) If there are grounds for suspecting that a criminal offence subject to public prosecution has been committed, the police shall be bound to take necessary measures aimed at discovering the perpetrator, preventing the perpetrator or accomplice from fleeing or going into hiding, and discovering and securing traces of the offences and objects of evidentiary value, as well as collecting all information which could be useful for conducting criminal proceedings. ...","(2) In order to fulfil the duties referred to in paragraph 1 of this Article, the police may seek information from citizens, carry out polygraph tests, voice analysis, and the necessary inspections of means of transportation, passengers and luggage, ... [and] implement measures necessary for the identification of persons and objects ... When facts and circumstances established in the course of carrying out [such duties] might be of interest to the criminal proceedings, an official record shall be made in respect of those facts and circumstances.","...","(4) When collecting information, the police cannot interview citizens in their capacity as accused persons, witnesses or expert witnesses. ...","(5) When collecting information, the police shall inform a suspect [of his or her rights] under Article 225 paragraph 2 of this Code. At the suspect \u2019 s request, the police shall allow him or her to hire a lawyer, and for that purpose they shall stop interviewing the suspect until the lawyer attends \u2013 at the latest three hours after the suspect asks for a lawyer. ... If the circumstances indicate that the chosen lawyer will not be able to attend within this period of time, the police shall allow the suspect to instruct a lawyer from the list of duty lawyers provided to the competent police authority by the county branches of the Croatian Bar Association ... If the suspect does not hire a lawyer, or if the requested lawyer fails to attend within the time allowed, the police authorities may resume interviewing the suspect ... The State Attorney has the right to be present during the questioning. The record of [any] statement given by the suspect to the police in the presence of a lawyer may be used as evidence in the criminal proceedings.","Article 225","\u201c...","(2) The accused shall be informed of the charges against him or her, and of his or her right not to present his or her defence or answer questions.","(3) The accused shall then be informed of his or her right to hire a defence lawyer of his or her own choosing ...\u201d","25. The relevant provisions of the Road Traffic Safety Act ( Zakon o sigurnosti prometa na cestama, Official Gazette no 105\/2004) read as follows:","Section 4","\u201cSupervision and control of road traffic, [and] supervision of vehicles, drivers and other road users is carried out by police officers of the Ministry of the Interior (hereinafter \u2018 police officers \u2019 ).\u201d","229 (3) and (7)","\u201c (3) The owner or the person keeping the vehicle shall give reliable information as to the identity of the driver at a request of a police officer ...","...","(7) The owner, the person keeping the vehicle ... shall be fined between 2,000 and 5,000 Croatian kunas for a minor offence if they do not, within fifteen days, give a reliable evidence as to the identity of the driver at the time the minor offence was committed.\u201d","Section 282","\u201c(1) In order to establish the presence of alcohol, opiates or medication labelled as being incompatible with driving, a police officer in charge of the supervision of drivers and other road users is authorised to carry out testing by relevant means and equipment (by a breathalyser or other means) on any user whose behaviour disrupts or endangers [road] traffic ... For the same purpose, [a police officer is also] authorised to take such persons to have blood and urine tests or a medical examination.","...","(4) Persons under paragraph 1 ... of this section shall comply with the requests of a police officer.","(5) A police officer draws up a record of the actions taken ... or a request for a medical examination and blood and urine tests.","...\u201d"],"124":["A.Schedule 7","5.Schedule 7 to the Terrorism Act 2000 (\u201cTACT\u201d) empowers police, immigration officers and designated customs officers to stop, examine and search passengers at ports, airports and international rail terminals. No prior authorisation is required for the use of Schedule 7 and the power to stop and question may be exercised without suspicion of involvement in terrorism. However, questioning must be for the purpose of determining whether the person appears to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism. If someone fails to co-operate he or she is deemed to have committed a criminal offence and could face up to three months in prison, a fine or both.","B.The facts of the present case","6.The applicant, a French national, is ordinarily resident in the United Kingdom. Her husband, who is also a French national, is in custody in France in relation to terrorist offences.","7.On 4 January 2011, following a visit to her husband in France, the applicant and her three children returned to the United Kingdom on a flight from Paris. The flight landed at East Midlands Airport at approximately 8.05 p.m.","8.At the United Kingdom Borders\u2019 Agency (\u201cUKBA\u201d) desk the applicant and her children were stopped but she was not formally detained or arrested. She was told that she was not under arrest and that the police did not suspect her of being a terrorist, but that they needed to speak to her to establish if she might be \u201ca person concerned in the commission, preparation or instigation of acts of terrorism\u201d. She was therefore taken to an examination room with her youngest child. As the applicant had arranged for someone to meet her at the airport, her two older children were permitted to proceed to Arrivals. The applicant\u2019s luggage was taken to another room and searched.","9.The applicant asked to consult a lawyer and for an opportunity to pray. At approximately 9.00 p.m., while she was praying, one of the officers spoke with her lawyer and indicated that she would be free to speak to him in fifteen minutes. When she finished praying, she was told that she could telephone her lawyer after she had been searched.","10.At approximately 9.23 p.m., after the applicant had been searched, she spoke with her lawyer by telephone. However, the officers made it clear that they would not delay the examination pending his arrival.","11.In or around 9.30 p.m. the applicant was taken to an examination room and served with a form TACT 1 (see paragraph 42 below). The contents of the form were also read to her. In response, she informed the officers that she would only answer questions after her lawyer arrived. Thereafter, she was asked a number of questions about her family, her financial circumstances and her recent visit to France. She refused to answer most of those questions.","12.At around 10.00 p.m., following the conclusion of the examination, the applicant was cautioned and reported for the offence of failing to comply with her duties under Schedule 7 by refusing to answer questions. She was also told that she was \u201cfree to go\u201d.","13.The applicant\u2019s lawyer arrived at approximately 10.40 p.m.","14.The applicant was subsequently charged with three offences: wilfully obstructing a search under Schedule 7; assaulting a police officer contrary to section 89 of the Police Act 1996; and wilfully failing to comply with a duty under Schedule 7. The first and second charges were eventually dismissed.","15.On 12 December 2011 the applicant appeared before Leicester Magistrates\u2019 Court, where she pleaded guilty to the third charge and was sentenced to be conditionally discharged. That plea followed a ruling by the District Judge that he had no power to stay the proceedings as an abuse of process on the grounds advanced by the applicant; namely, that the powers given to the police under Schedule 7 had infringed her rights under Articles5, 6 and 8 of the Convention and her right to freedom of movement between Member States of the European Union under Articles 20 and 21 of the Treaty on the Functioning of the European Union.","16.The applicant appealed to the High Court against the District Judge\u2019s ruling.","C.The judgment of the High Court","17.On appeal, the applicant alleged that there had been an abuse of process based on a violation of her rights under Articles 5, 6 and 8 of the Convention and her freedom-of-movement rights. She also sought a declaration of incompatibility; or, if no declaration were to be granted, she contended that her rights under the above-mentioned Convention Articles had been infringed.","18.With respect to her Convention rights, she argued that the powers under Schedule 7 were in breach of Articles 5 and 8 of the Convention because they were neither sufficiently circumscribed nor subject to adequate safeguards to be \u201cin accordance with the law\u201d; or, in the alternative, that the interference with her Article 8 rights was not proportionate. She further argued that her rights under Article 6 had been engaged at the latest when she was obliged to answer questions exposing her to the risk of self\u2011incrimination without her lawyer in attendance.","19.The High Court delivered its judgment on 28 August 2013. In respect of the Article 8 complaint, the court considered that the present case was distinguishable from that of Gillan and Quinton v.theUnited Kingdom, no. 4158\/05, ECHR 2010 (extracts). Unlike the Code of Practice relating to the powers exercised under section 44 of TACT (the provisions under consideration in Gillan and Quinton), in the present case the relevant Home Office Code of Practice and accompanying Practical Advice (see paragraphs 42 and 43 below) afforded a measure of legal protection against arbitrary interferences by the Executive. Moreover, port and border control was very different from the power to stop and search, exercisable anywhere in the jurisdiction, and conclusions as to the arbitrariness of the latter did not readily translate to conclusions as to the former. The United Kingdom, as an \u201cisland nation\u201d, concentrated controls at its national frontiers and the court was therefore of the view that it was to be accorded a wide margin of appreciation in carrying out these controls.","20.Not being constrained by the authority of Gillan and Quinton, the court went on to find that the Schedule 7 powers were sufficiently circumscribed and were therefore \u201cin accordance with the law\u201d. First, it noted that many exercises of Schedule 7 powers were unlikely even to engage Article 8 as the intrusions would fall below the threshold of a minimum level of seriousness. Secondly, it considered that the arguments which served to distinguish Gillan and Quinton likewise served to emphasise the important and particular position of port and border controls and the need for such powers. Thirdly, the Schedule 7 powers were applicable only to a limited category of people: namely, travellers in confined geographical areas. Furthermore, while there was no room for complacency, the statistics collated by the Independent Reviewer (see paragraphs 48-49 and 56-61 below) did not suggest arbitrary overuse or misuse in respect of members of ethnic-minority communities. Fourthly, the Schedule 7 powers could only be exercised in respect of that limited category for the purpose of determining whether the person questioned appeared to be a person who was or had been concerned in the commission, preparation or instigation of acts of terrorism, and these limitations told against the powers being arbitrary. Fifthly, the Schedule 7 powers were principally an aspect of port and border control rather than of a criminal investigation and it was therefore not surprising that there was no requirement of \u201creasonable suspicion\u201d for the powers to be exercised. Sixthly, the court noted that the underlying purpose of the Schedule 7 powers was to protect the public from terrorism.","21.In this regard, the court observed:","\u201cThe manifest importance of that purpose and the utility of the powers do not, of course and of themselves, entail the conclusion that these powers are not arbitrary and thus compatible with Art. 8. However, the exercise of Schedule 7 powers is subject to cumulative statutory limitations. Their exercise is governed by the Code. Over and above the possibility of legal challenge if misused in an individual case, they are subject to continuing review by the Independent Reviewer. The absence of a requirement of reasonable suspicion is both explicable and justifiable. For the reasons already given, we are not at all persuaded that these powers render the public vulnerable \u2018...to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than for which the power was conferred\u2019 \u2013 LordBingham\u2019s test for arbitrariness, in Gillan (HL), at [34], set out above. Equally, we are not persuaded that these are unfettered powers, falling foul of the test applied in Gillan (Strasbourg), at [76] \u2013 [77], also set out above; for our part, the \u2018level of precision\u2019 of these powers (ibid) falls and falls comfortably on the right side of the line.\u201d","22.The court also found that the exercise of Schedule 7 powers was proportionate. For the reasons already given, it did not accept that they were too broad. Furthermore, it noted that there was an objective justification for the focus on ports, airports and border areas, which, in the United Kingdom, provided a particularly appropriate venue for detecting, deterring and disrupting potential terrorist activity. With regard to the circumstances of the applicant\u2019s case, the court found that the interference with her Article 8 rights had been justified. As she had been returning to the United Kingdom after visiting her husband, who was imprisoned in France for terrorism offences, she was not stopped and examined on a random basis. Moreover, the questions asked of her were rationally connected to the statutory purpose and were in no way disproportionate.","23.In view of the court\u2019s conclusions in respect of Article 8, it found that the applicant\u2019s Article 5 argument could be dealt with summarily. As the respondent accepted that there had been an interference with the applicant\u2019s rights, and the applicant accepted that the interference was \u201cin order to secure the fulfilment of any obligation prescribed by law\u201d, the only issue to be determined was whether the interference was \u201clawful\u201d, and the conclusions in respect of Article 8 had determined that it was.","24.Finally, the court considered the applicant\u2019s argument under Article6 of the Convention. However, it found that on the facts of her case, Article 6 was not engaged as her examination under Schedule 7 was not an inquiry preparatory to criminal proceedings but rather an inquiry related to border control with the specific public interest of safeguarding society from the risk of terrorism. Furthermore, the examination was not carried out for the purpose of obtaining admissions or evidence for use in such proceedings, and the fact that the applicant\u2019s answers might have yielded information potentially of evidential value did not of itself suffice to engage Article 6. Even if the applicant\u2019s rights had been engaged, the court found that there would have been no violation since it was fanciful to suppose that permission would be granted in criminal proceedings for any admissions obtained pursuant to a Schedule 7 examination to be adduced in evidence.","D.The judgment of the Supreme Court","25.The applicant was granted permission to appeal to the Supreme Court, which gave judgment on 22 July 2015.","26.Prior to the judgment, Schedule 7 was amended by the Anti-Social Behaviour, Crime and Policing Act 2014, which required examining officers to take a person into detention if they wished to examine him or her for longer than one hour; reduced the maximum period of detention from nine hours to six hours; required the periodic review of detention by a review officer; provided that the questioning of an examinee should not commence until after the arrival of a requested solicitor; and stipulated that examining officers should be designated and trained for this purpose (see paragraphs 52-53 below). The Code of Practice was amended to reflect these changes (see paragraphs 54-55 below). In considering the applicant\u2019s complaints, the Supreme Court had regard to the amended Schedule 7 power.","1.The opinion of the majority","(a)Article 8","27.With regard to the Article 8 complaint, Lord Hughes (with whom LordHodge agreed) also considered that Gillan and Quinton (cited above) was distinguishable on its facts since the Schedule 7 power was confined to those passing through ports of entry\/exit, while the section 44 power was exercisable in relation to any person anywhere in the street. Furthermore, while there was evidence that the safeguards provided in the case of section44 were ineffective, none of these applied to the powers under Schedule 7. Having regard to the safeguards which applied in respect of Schedule 7, their Lordships were satisfied that the principle of legality was met. In particular, they had regard to the restriction of the power to those passing in and out of the country; the restriction to the statutory purpose; the restriction to specially trained and accredited police officers; the restrictions on the duration of questioning; the restrictions on the type of search; the requirement to give explanatory notice to those questioned, including a procedure for complaint; the requirement to permit consultation with a solicitor and the notification of a third party; the requirement for records to be kept; the availability of judicial review; and the continuous supervision of the Independent Reviewer.","28.Lords Neuberger and Dyson agreed that there were important differences between the statutory provisions and modus operandi of the Schedule 7 system and section 44 system, and that those differences established that the powers in the case at hand were more foreseeable and less arbitrary than those considered in Gillan and Quinton.","29.Lords Hughes and Hodge further accepted that the interference with the applicant\u2019s private life had been proportionate: the intrusion itself had been comparatively light, as it was not beyond the reasonable expectations of those who travel across the United Kingdom\u2019s international borders, and, in view of the relevant safeguards, a fair balance could be said to have been struck between the rights of the individual and the rights of the public at large. Lords Neuberger and Dyson agreed that the appeal, insofar as it was based on proportionality, should fail, given that the interference was slight, the independent justification was convincing, the supervision impressive, the safeguards and potential benefits substantial, and no equally effective but less intrusive proposal had been forthcoming.","30.Lords Neuberger and Dyson added that:","\u201cLegality is said to give rise to a problem for the powers granted under paragraph 2 of Schedule 7 because those powers can be exercised randomly. However, it is important to the effectiveness of these powers that they can be exercised in this way. Furthermore, if the power to stop and question under Schedule 7 infringes the Convention because it is exercisable randomly, the logical conclusion must be either that the valuable power must be abandoned or the power must be exercised in a far more invasive and extensive way, namely by stopping and questioning everyone passing through ports and borders. The former alternative would be unfortunate in terms of deterring and hindering terrorism, whereas the latter alternative would seem to put proportionality and legality in irreconcilable tension.\u201d","(b)Article 5","31.Although Lords Hughes, Hodge, Neuberger and Dyson agreed with the Divisional Court that the comments made in relation to safeguards in the context of Article 8 also applied in respect of Article 5, in their view it did not follow that the power of detention was automatically justified. The level of intrusion occasioned by detention for up to six hours was of a different order to the intrusion occasioned by compulsory question and search, and safeguards which were adequate for one would not necessarily be sufficient for the other. Furthermore, it did not follow that the fair balance between the rights of the individual and the interest of the public would fall in the same place. However, although their Lordships expressed doubts about whether detention for as long as six hours could ever be justified, on the facts of the present case they found that, to the extent that there was any deprivation of liberty, it was clear that it was for no longer than necessary to complete the process and therefore there had been no breach of Article 5.","(c)Article 6 \u00a7 1","32.In respect of the applicant\u2019s complaint under Article 6, LordsHughes, Hodge, Neuberger and Dyson accepted that the privilege against self\u2011incrimination did not apply where a person was being questioned pursuant to Schedule 7. However, their Lordships considered port questioning and search under Schedule 7 to be separate from a criminal investigation and, since the applicant had been at no time a defendant to a criminal charge, no question of a breach of her right to a fair trial could arise. In reaching this conclusion, they noted that any use in a criminal prosecution of answers obtained under compulsion would breach Article 6 of the Convention; consequently, Schedule 7 material could never be adduced in a subsequent criminal trial (unless the prosecution concerned the failure to comply with the Schedule 7 duty).","2.Lord Kerr\u2019s dissenting opinion","(a)Legality","33.Lord Kerr disagreed with the majority that the Schedule 7 powers were \u201cin accordance with the law\u201d. In fact, he considered that comparison with the section 44 powers illustrated the greater ambit of the Schedule 7 powers. In particular, he observed that no authorisation was required for an examining officer to have resort to the Schedule 7 powers; the examining officer did not have to consider the use of those powers expedient for the prevention of acts of terrorism; there was no geographical or temporal limitation on the use of those powers, other than that they were to be used at a port of entry into or exit from the United Kingdom; and there was no provision for their automatic lapse, nor was there any question of their renewed authorisation being subject to confirmation. Furthermore, LordKerr noted that certain features were common to both sets of powers: the width of the powers was similar (in both instances there was no requirement of either reasonable or even subjective suspicion) and challenges to their use on conventional judicial review grounds faced the same difficulties identified in Gillan and Quinton (namely, if an examining officer was not required to have a reasonable suspicion, how was the proportionality of the exercise of his powers to be reviewed?).","34.In response to the majority\u2019s reliance on the fact that Schedule 7 powers could only be used in respect of persons passing through ports of entry or exit, Lord Kerr made two points. First, being subjected to border controls, such as the requirement to provide proof of identity and entitlement to enter, was entirely different from being required to answer questions about one\u2019s movements and activities and facing criminal sanction for refusing. Secondly, and more importantly, the fact that people were accustomed to intrusion moving through ports of entry or exit did not bear on the question of whether the circumstances in which the Schedule 7 powers could be exercised were too widely drawn to satisfy the test of \u201cin accordance with the law\u201d. In other words, an unfettered power which might be arbitrarily or capriciously used did not become legal just because people generally did not take exception to its use.","35.Furthermore, given that there were 245 million passenger movements through United Kingdom ports every year, the fact that the Schedule 7 power was used sparingly could have no bearing on its legality. A power on which there are insufficient legal constraints does not become legal simply because those who may have resort to it exercise self-restraint. It was the potential reach of the power \u2013 and not its actual use \u2013 which had to be judged. In any case, although the percentage of travellers subjected to the use of the power was small, in absolute terms the number was not inconsequential, since on average five to seven people each day were examined for more than an hour.","36.Finally, Lord Kerr expressed concern about the potential for arbitrary and discriminatory exercise of the power since there was no clearly obvious means of policing the requirement that persons should not be stopped and questioned just because of their ethnic background or religion. In any case, the Code of Practice contemplated that ethnic origin or religious adherence could be at least one of the reasons for exercising the power, just so long as it was not the sole ground. Lord Kerr considered that the fact that the legislation authorised the use of a coercive power, at least partly, on grounds of race and religion should be starkly confronted since it permitted direct discrimination, which was entirely at odds with the notion of an enlightened, pluralistic society all of whose members were treated equally.","(b)Proportionality","37.Lord Kerr was not persuaded that the interference with the applicant\u2019s rights under Articles 5 and 8 was \u201cnecessary\u201d. In this regard, he noted that there was no evidence that a suspicion-less power to stop, detain, search and question was the only way to achieve the goal of combatting terrorism.","(c)Privilege against self-incrimination","38.Lord Kerr considered the requirement that a person questioned under Schedule 7 must answer on pain of prosecution for failing to do so to be in breach of that person\u2019s common law privilege against self-incrimination and therefore incompatible with Article 6 of the Convention. In Lord Kerr\u2019s opinion, it was inescapable that there was a real and appreciable risk of prosecution if the answers to the questions asked proved to be self\u2011incriminating, and the fact that the applicant in the present case was not suspected of being a terrorist was nothing to the point. If she was asked questions designed to establish whether she appeared to be a terrorist, the potential of her answers to incriminate her if they were of an inculpatory character was indisputable. This remained the case even if those self\u2011incriminating answers could not be adduced in evidence, as they might prompt enquiry which could lead to the obtaining of independent evidence."],"125":["6.The applicants live in Astrakhan.","7.The first applicant has been or is a guardian (a foster parent) of the second to eighth applicants. R. was a minor, who remained in the first applicant\u2019s care from 20 July 2001 until 26 July 2010.","8.At birth R. was diagnosed with several serious health conditions. He spent the first eight months of his life in hospital. As his condition remained very serious and unstable, his natural parents considered themselves unfit to attend to his needs and agreed for their son to be put into the care of the first applicant, who had qualifications in medicine and was an experienced paediatrician.","9.On 20 July 2001 the first applicant took R. from hospital and brought him at her place of residence.","10.On 23 November 2001 the Trusovskiy District Council in Astrakhan appointed the first applicant to act as R.\u2019s guardian. The decision stated that R.\u2019s parents were unable to ensure proper care of their child, who had serious congenital diseases, and that therefore they gave their consent in writing to the first applicant\u2019s guardianship over R., and to his transfer into her care.","11.Eventually, at various dates in the period from 2003 to 2009 the first applicant also was appointed guardian to the second to eighth applicants.","12.Between 2001 and 2007, the first applicant and R.\u2019s parents maintained good relations.","13.In 2007 R.\u2019s state of health became more stable, and his parents expressed their wish to take him back into their care. The first applicant refused to return the boy.","A.Proceedings concerning deprivation of parental authority","14.On an unspecified date the first applicant brought a claim against R.\u2019s parents in an attempt to have them deprived of their parental authority over him. She argued that they had left R. in the children\u2019s hospital shortly after his birth; that they had not expressed any interest in his life, health and development; that they had not visited him; and that financial support they had given had been inadequate given the child\u2019s special needs. According to the first applicant, R.\u2019s parents were now interested in the boy only with a view to improving their living conditions, as having a disabled child in their care could entitle them to better social housing. The first applicant thus insisted that R.\u2019s parents had evaded their parental duties and thus should be divested of their parental authority over R.","15.In the proceedings before the first-instance court, the Ministry of Education and Science of Astrakhan Region (hereinafter \u201cthe childcare authority\u201d) provided an expert report on the issue, in which they considered that R.\u2019s parents \u201c[did] not show any interest in his life or health condition, they [did] not participate in his upbringing, they [did] not provide any financial maintenance and [had] chosen not to fulfil their parental duties\u201d. The report concluded that they should be deprived of their parental authority.","16.On 11November 2008 the Trusovskiy District Court of Astrakhan (\u201cthe District Court\u201d) dismissed the first applicant\u2019s claim. In particular, it rejected as unfounded the first applicant\u2019s argument that R.\u2019s parents had abandoned him in the children\u2019s hospital; it observed in this connection that no evidence had been submitted to it \u2013 in the form of a written statement by R.\u2019s parents or certificates from any health institutions \u2013 to show that R.\u2019s parents had ever formally renounced their parental authority over the boy. The court further observed that the decision to transfer their son under the first applicant\u2019s guardianship had been taken by the child\u2019s parents at a very difficult time of their lives, when they had faced a very stressful situation of being unable, on their own, to attend to their son\u2019s needs.","17.The District Court also rejected the first applicant\u2019s allegation concerning R.\u2019s parents\u2019 unwillingness or failure to visit their son in the absence of any obstacles. In the latter connection, the court observed that the first applicant had had a negative attitude towards R.\u2019s parents\u2019 unexpected visits, and she had never informed them of the child\u2019s absence from his place of residence (for outings and trips abroad). Also, R.\u2019s parents had been unable to obtain information about R.\u2019s heath from the relevant healthcare institutions, as the latter had refused give them any such information at the first applicant\u2019s written request.","18.The court also referred to statements of a number of witnesses which confirmed that R.\u2019s parents had helped the first applicant with his maintenance, both financially and by providing various services requested by the first applicant; in particular, they had had maintenance and repair work in the first applicant\u2019s housing done; they had ensured private transport for R.\u2019s visits to medical appointments; they had supplied medicine and food for R.\u2019s special diet; they had taken his clothes for cleaning and brought him clean clothes.","19.The court further considered the deprivation of parental authority to be an extraordinary measure that could only be applied on the grounds established in Article 69 of the Russian Family Code (see paragraph 68 below). In the circumstances of the case, the court did not discern any grounds justifying such a measure. At the same time, the court urged R.\u2019s parents \u201cto change their attitude towards [R.\u2019s] upbringing\u201d and imposed on the competent childcare authority an obligation to monitor their compliance with their parental obligations\u201d. It also noted that the financial support provided by R.\u2019s biological parents was insufficient and ordered that they pay the first applicant one quarter of their monthly income as child maintenance.","20.On 12March 2009 the Astrakhan Regional Court (\u201cthe Regional Court\u201d) upheld the first-instance judgment on appeal.","B.First set of proceedings concerning the determination of R.\u2019s place of residence","21.On 26February 2009 the District Court dismissed an application by R.\u2019s parents to have their son returned to them.","22.It established, in particular, that the first applicant had been taking good care of R.; that she had actively involved relevant specialist healthcare professionals to ensure that he had received the necessary medical treatment and constant care; she had created all conditions necessary for his life and development, taking into account his special needs. The court also noted that for the period when R. had remained in the first applicant\u2019s care, there had been improvements in his state of his health and progress in his physical and psychological development. It furthermore referred to the evidence confirming that the first applicant\u2019s foster children lived in good living conditions; that they played as a group; that their leisure activities were well organised, and included group nature outings.","23.The District Court also established, with reference to the available written evidence and witness statements, that, until that moment, R.\u2019s parents had not maintained contact with R., and had never enquired as to his health.","24.It further observed, with reference to the opinions of healthcare professionals and representatives of the childcare authority who had monitored R., that an abrupt change of surroundings, separation from the people he knew and immediate transfer to his biological parents could seriously traumatise the boy, endanger and harm his psychological state and thus aggravate his conditions. The boy would need a lengthy adaptation period to get used to his natural parents.","25.The court thus concluded that it would be in the child\u2019s best interests to continue living with the first applicant for the time being.","26.The judgment became final on 13 March 2009.","C.Proceedings concerning R.\u2019s parents\u2019 access to him","27.On an unspecified date, R.\u2019s parents brought a claim against the first applicant. They complained that she had been obstructing their contact with R. and requested that the court grant them access to the boy, and determine the manner in which they could exercise their contact rights.","28.By a judgment of 7 May 2009 the District Court determined R.\u2019s parents\u2019 rights of contact with the boy. It established that they should have access to him each Friday from 4.30 to 5.30 pm at the first applicant\u2019s home, and each Sunday from 2 to 4 pm at their home in the first applicant\u2019s presence.","29.On 10 June 2009 the Regional Court upheld the first-instance judgment on appeal.","30.The case file reveals that R.\u2019s parents complied with the established order of their contact with R.","D.Second set of proceedings concerning the determination of R.\u2019s place of residence","31.On an unspecified date R.\u2019s parents brought another claim against the first applicant and the childcare authority before the District Court. They asked for their son\u2019s return and termination of the first applicant\u2019s guardianship over him.","32.In the ensuing proceedings both parties were represented by lawyers.","33.In the context of those proceedings, two reports were drawn up by psychologists of the childcare authority. They reflected the results of monitoring by psychologists of contact sessions between R. and his parents.","34.The first report dated 29 December 2009 described two contact sessions that had taken place at various times on 25-27 December 2009. It stated, in particular, that R.\u2019s parents had established good psychological contact with the child, and that they had showed a caring and loving attitude towards the boy. The report furthermore stated that, in view of R.\u2019s special condition and the considerable delay in his physical and psychological development, his interaction with the adults was very limited; however, the parents managed to establish tactile and emotional contact with him. Overall, in so far as his conditions made it possible to ascertain, the child felt psychologically comfortable and calm in the presence of his parents. At the same time, the experts pointed out that the child was very fragile and that, for his psychological comfort, he constantly needed the presence of the first applicant. The experts also stated that R.\u2019s parents had insufficient understanding of their son\u2019s emotional state and interests, the particularities of his psychological condition and his capabilities. The report concluded that it was necessary to continue the process of the child\u2019s adaptation to his parents and to that end the duration of the contact sessions between R. and his parents should be extended.","35.The second report dated 4 May 2010 described two contact sessions that had taken place on 29 and 30 April 2010. It noted the child\u2019s very serious condition, which greatly limited his interaction with the outside world. It further stated, in particular, that R.\u2019s parents had successfully established psychological contact with their son; that they understood adequately his psychological particularities, emotional state, needs and capabilities. According to the report, when with his parents, R. felt calm and comfortable. In the course of their interaction, R.\u2019s parents had created a warm and beneficial environment propitious for the child\u2019s development.","36.In the proceedings before the court, the childcare authority expressed a generally favourable opinion regarding R.\u2019s return to his biological parents, but pointed out that, in view of R.\u2019s state of health, his integration into his family should be gradual. In particular, the duration of his contact sessions with the parents, which to then had taken place twice a week in daytime, could be extended and could include night-time contact.","37.On 4May 2010 the District Court allowed R.\u2019s parents\u2019 claims.","38.It examined in detail the circumstances of R.\u2019s transfer to the first applicant\u2019s care and the relations between the first applicant, R.\u2019s parents and R. from that time forward. It pointed out, in particular, that R.\u2019s parents had surrendered their son to the first applicant\u2019s care given his very serious condition and her experience as a paediatrician; at that time they had considered themselves incapable of ensuring the specialist care he needed.","39.It rejected as untenable on the facts the first applicant\u2019s argument that R.\u2019s parents had abandoned their son in the hospital without valid reasons. It noted in this connection:","\u201cNeither the statements made by [R.\u2019s] parents nor relevant medical documents [to confirm that argument] were presented to the court. The [defendants] denied this fact. They submitted that they had not abandoned their child. On the contrary, they wanted him to get better and to return to his family.","It follows from the material in the case file that [R.] was given into the care of the guardian after his parents\u2019 futile attempts to provide him with due medical care and in the child\u2019s [best] interests ...","[R.\u2019s parents] did not intend to abandon their child ... Even though he was under the [first applicant\u2019s] guardianship, [his] family took an interest in his life and health, they provided ... financial support.\u201d","40.The District Court further referred to statements of various witnesses. In particular, eleven witnesses described the first applicant as a kind, caring and empathetic person, who helped other families with children with disabilities. They also stated that she had taken good care of R., that as a paediatrician she had attended to his needs, and that his condition had visibly improved owing to her efforts. The witnesses furthermore stated that the first applicant went with her foster children on trips, within the country and abroad. With respect to those statements the District Court noted that they confirmed only the first applicant\u2019s good and caring attitude towards R. and the fact that she had duly performed her obligations towards him. However, in the court\u2019s view, those statements did not show that R.\u2019s parents were unable to take good care of the boy, nor that in view of R.\u2019s physical and psychological condition he should continue living with the first applicant.","41.The court also referred to statements of Ms Z., a paediatrician, who submitted that she had known and been treating R. since he had been eight months old when he had been given into the first applicant\u2019s care. The child had suffered from a serious congenital illness and had spent considerable time in hospital. At that time, his condition was stable, yet serious owing to his diagnosis \u2013 a central nervous system disorder and mobility impairments. The child needed constant appropriate care and supervision rather than mere medical treatment. The child had grown in ten years, had changed emotionally. He reacted to the people around him. However, he could not take care of himself. He could not eat, drink or walk on his own. He was in need of constant care. Ms Z. also added that she had accompanied the first applicant when she had taken R. to Austria for medical treatment. The boy had had a different reaction when the first applicant had held him in her arms and when Ms Z. had held him in her arms.","42.Ms M., one of the psychologists who had drawn up the reports of 29December 2009 and 4 May 2010 (see paragraphs 34 and 35 above), submitted that it had been established in the course of monitoring that R.\u2019s parents had learnt to identify and adequately understand specific psychological and physical particularities of their son. They showed genuine interest in the child and surrounded him with truly parental attention, love and care. They regularly consulted psychologists concerning the psychological condition of a child with developmental difficulties, asking about the requisite material and toys for, and how they should build communication, with such a child.","43.The District Court went on as follows:","\u201cAccordingly, as a result of monitoring of the contact sessions, it has been established that [R.\u2019s] parents communicated with [him] in a calm, sincere and benevolent manner. They successfully established psychological contact with him. They understood adequately his psychological particularities, emotional state, needs and capabilities. When with his parents, [R.] felt calm and comfortable. In the course of their interaction, they created a warm and beneficial environment favourable for the child\u2019s development.","According to the report on the plaintiffs\u2019 living conditions ... in a two-room flat, the conditions were found satisfactory and corresponding to the family\u2019s needs and favourable for children\u2019s upbringing and living. [R.\u2019s] parents provided the conditions necessary for [his] living and upbringing.","...","The adduced materials reveal that [R.\u2019s] parents are a stable ... family. They are well-to-do and make an adequate living. They have permanent employment [and a] stable income. They provided positive personal references from their employers and from their place of residence. They do not have a history of psychiatric diseases or criminal records. Accordingly, they meet all the conditions and can raise the child and provide him with due care.\u201d","44.The court dismissed the first applicant\u2019s argument that R.\u2019s parents were seeking to cancel her guardianship in order to obtain better social housing. According to the court, this allegation had been refuted in the course of the proceedings by the explanations provided by R.\u2019s parents, and by the evidence proving that their minor children, including R., owned shares in their flat.","45.It further rejected the argument advanced by the childcare authority that the child should be gradually integrated into his parents\u2019 family (see paragraph 36 above). In the court\u2019s view, such gradual integration would have a negative impact on the child\u2019s psychological state. Furthermore, it would interfere with his right to live and be brought up in his family. The court further stated that R.\u2019s parents were his natural parents; they showed due care and love for him, and had by that time established psychological contact with him on the basis of contact sessions that had taken place over a considerable period of time, in particular in their flat. The child understood that his mother and father were his parents, in so far as his psychological development allowed it. The court also pointed out that the childcare authority had admitted that the reunification of R. with his family ultimately served his interest.","46.The District Court thus considered that \u201cno convincing evidence [had been] submitted to show that [R.\u2019s] parents [had been] unable to bring up their child with due care and attention\u201d, and concluded as follows:","\u201cRegard being had to the above, the court holds that the plaintiffs\u2019 claim should be granted and they should be reunited with their child in order for them to continue exercising their parental rights in respect of the child\u2019s education and development.","... the court holds that the [administrative] decision ... [of] 23November 2001 ... should be terminated as no longer needed.\u201d","47.The first applicant appealed against the first-instance judgment.","48.On 23June 2010 the Regional Court examined the first applicant\u2019s appeal submissions, where she and her lawyer made their case in person.","49.It then upheld the judgment of 4 May 2010 on appeal. It considered that the District Court had thoroughly examined the case and accurately established the relevant circumstances; that on the basis of various pieces of written evidence, the report of 4 May 2010 regarding the effects of R.\u2019s parents\u2019 contact with him and a report on their living conditions being amongst their number, as well as on the basis of numerous witness statements, the first-instance court had taken a justified and well-reasoned decision that R.\u2019s transfer to his biological family had been in his best interests.","50.On 26 July 2010 R. was transferred to his parents.","E.Proceedings concerning the applicants\u2019 access to R.","51.On an unspecified date the first applicant brought an action against R.\u2019s parents on behalf of herself and on behalf of the other applicants in an attempt to gain access to R. She averred, in particular, that for the nine years during which R. had remained in her care, she and her foster children \u2013 the other applicants \u2013 had formed a family with a special bond existing between them; she further complained that, after R.\u2019s transfer to his parents, there had been no contact between R. and the applicants, as R.\u2019s parents had obstructed their attempts to maintain contact.","52.On 19April 2011 the Sovetskiy District Court of Astrakhan (\u201cthe District Court\u201d) dismissed the applicants\u2019 claim.","53.It observed, in particular, that Article 64 of the Russian Family Code (see paragraph 65 below) vested the authority to represent and protect a child\u2019s interests in his or her natural parents, unless the latter\u2019s interests stood in conflict with their child\u2019s. The District Court stated, with reference to the available evidence and witness statements, that after R.\u2019s transfer to his biological parents, they had established all the requisite conditions for the boy\u2019s life and education, and had been fully able to attend to his needs. In particular, R. had undergone all the necessary medical examinations; and his parents had complied with healthcare professionals\u2019 recommendations as regards his care and medical assistance. The court concluded that R.\u2019s parents were acting in his interests.","54.The District Court further noted that R.\u2019s parents as well as the childcare authority objected to the applicants\u2019 communication with R. It also observed that it was impossible to find out R.\u2019s opinion on the matter in view of his medical conditions.","55.The District Court went on to observe that the first applicant was not a member of R.\u2019s family or a relative, within the meaning of Article 67 of the Russian Family Code (see paragraph 66 below), nor did she have any legal ties with him after her guardianship over the boy had been terminated by a court decision, with the result that she did not pertain to the category of individuals entitled to seek access to the child under the Russian Family Code. In the court\u2019s view, statements of a number of witnesses confirming R.\u2019s attachment to the first applicant and her taking good care of him \u201cwere not grounds for including the first applicant in the category of individuals entitled under the relevant legal provision to claim access to the child\u201d.","56.The first applicant appealed arguing, in particular, that the first\u2011instance court had erred, in the absence of a forensic expert examination of the matter, in its finding that the second applicant had been incapable of having and forming attachments to her and the other applicants; she complained that her request to have such an expert examination ordered had been rejected by the District Court. The applicant also argued that the first-instance court should have applied Article 67 of the Russian Family Code by analogy, as the relationship between the applicants and R. had been similar to that between biological family members.","57.On 8 June 2011 the Regional Court upheld the judgment of 19April 2011 on appeal. It noted, in particular:","\u201cWhen dismissing the [first applicant\u2019s] claims, the [first-instance] court considered that, as set forth in Article 67 of the Family Code of the Russian Federation, the right of access to a child is granted to grandfathers, grandmothers, brothers, sisters and other relatives, while [the first applicant] is, as a matter of law, not regarded as a member of the family or a relative of a minor or any other person whose relationship with him is governed by family law (appointed guardians, custodians, de facto guardians) given that her guardianship has been terminated.","The [Regional Court] upholds the above finding of the first-instance court. By virtue of the Family Code of the Russian Federation, the right of access to a child is granted to a grandmother, a grandfather, brothers and sisters, [and] the child\u2019s close relatives who take part in his upbringing and education. Accordingly, the legislation protects [the relevant rights] of close relatives. The right of access to a child is not guaranteed to other individuals.\u201d","58.As regards the first applicant\u2019s argument that the first-instance court should have applied Article 67 of the Russian Family Code by analogy and should have considered her as R.\u2019s family member given the nature of ties between them, the appellate court noted as follows:","\u201cWhen resolving the dispute, the court did not apply the law by analogy. ... [T]he members of the family, as a matter of law, are understood only as the individuals directly indicated in the Family Code of the Russian Federation. The resolution of a dispute by analogy would otherwise contradict the essence of the family relationship.\u201d","59.The court also rejected the applicant\u2019s argument that the first\u2011instance court had failed to determine the degree of R.\u2019s attachment to the applicants; it stated in this connection that the argument in question \u201clacked a legal basis\u201d.","60.The Regional Court also endorsed the District Court\u2019s findings that R.\u2019s parents had provided the requisite care to R.; and that they had carried out necessary medical and rehabilitation measures. It \u201c[discerned] no evidence that R.\u2019s rights or interests [had been] infringed\u201d and dismissed the first applicant\u2019s argument to that end as unsubstantiated."],"126":["1. The applicant, Mrs Guljon Said, is a naturalised Dutch national of Afghan origin, who was born in 1967 and lives in Zoetermeer. She was represented before the Court by Mr W. Fischer, a lawyer practising in Haarlem.","A. The circumstances of the case","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","3. The applicant \u2019 s husband A, an Afghan national, fled to the Netherlands where he was granted asylum in January 1997. In 2000, he was reunited in the Netherlands with the applicant and their three children S., O. and H. (born in 1985, 1991 and 1993, respectively). In October 2002, their fourth child M. was born in the Netherlands.","4. On 4 May 2004 the Netherlands immigration authorities withdrew A \u2019 s asylum-based residence permit in application of Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees. The decision to apply Article 1F obtained the force of res iudicata on 7 July 2005 when the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) rejected the further appeal filed by A. The question whether his actual removal to Afghanistan would be contrary to his rights under Article 3 of the Convention was considered in subsequent proceedings. In his decision of 17 December 2008 the Deputy Minister of Justice ( Staatssecretaris van Justitie ) accepted that A \u2019 s removal to Afghanistan would, at that moment, expose him to a risk of being subjected to treatment in violation of Article 3. The Deputy Minister further decided to impose an exclusion order ( ongewenstverklaring ), rejecting A \u2019 s argument that the imposition of the exclusion order was contrary to his rights under Articles 3 and 8 of the Convention.","5. A challenged this decision in administrative appeal proceedings in which the last decision, confirming the decision of 17 December 2008, was given on 10 October 2012 by the Regional Court of The Hague. Although possible, there is no indication in the case-file that A has filed a further appeal with the Administrative Jurisdiction Division.","6. On unspecified dates the applicant and her four children obtained Dutch nationality.","7. On 10 March 2012, A was informed by the Tax Department that his request for means-tested housing benefit ( huurtoeslag ) and a means-tested contribution towards the costs of (compulsory) health insurance ( zorgtoeslag ) for the fiscal year 2012 had not been taken up for examination as, according to information obtained from the immigration authorities, he did not hold a valid residence permit ( geen geldige verblijfsstatus ).","8. On 11 April 2012 both the applicant and A filed an objection ( bezwaar ) against the decision of 10 March 2012 and, on 26 April 2012, they applied for means-tested child care benefit ( kindgebonden budget ) in respect of their youngest child M.","9. On 21 June 2012 the Tax Department informed the applicant that her entitlement to means-tested child care benefit had been set at nihil for the fiscal year 2012. Both the applicant and A filed an objection.","10. On 20 September 2012 the Tax Department informed the applicant that her objections had been rejected because her husband did not hold a residence permit. The applicant and A filed an appeal \u2013 also on behalf of their children H. and M. \u2013 with the Regional Court ( rechtbank ) of The Hague.","11. On 19 March 2013, following a hearing held on 5 March 2013, the single-judge chamber ( enkelvoudige kamer ) of the Regional Court of The Hague accepted the appeal, quashed the decision of 20 September 2012 but decided that the legal effects of that decision were to remain intact. It noted that the applicant had claimed that the denial of the benefits at issue breached her right to respect for her private and family life and the right to equal treatment and that only in the course of the proceedings on appeal did the Tax Department give an adequate reaction to this claim in its submissions to the Regional Court. On this basis the Regional Court found that the impugned decision lacked adequate reasons and, consequently, quashed it. However, in agreement with the arguments set out in the Tax Department \u2019 s submissions to the Regional Court in respect of the alleged breaches of the right to respect for the applicant \u2019 s private and family life and the right to equal treatment, it further decided that the legal effects of the decision of 20 September 2012 were to remain intact.","12. On 18 April 2013 the applicant and A \u2013 also on behalf of their child M. \u2013 filed a further appeal with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ).","13. On 21 October 2013 A voluntarily returned to Afghanistan where he is currently residing.","14. On 13 November 2013 the Administrative Jurisdiction Division accepted the further appeal of 18 April 2013, quashed the judgment of 19 March 2013 in so far as it had failed to declare the appeal inadmissible as the objections against the decisions of 10 March 2012 and 21 June 2012 had not been filed on behalf of the applicant \u2019 s children. Accordingly, it declared the appeal filed by the children to the Regional Court inadmissible and confirmed the impugned judgment for the remainder. In its relevant part, this ruling reads:","\u201c6. [The applicant and her husband] argue that the Regional Court has failed to discern that, by setting the .... [entitlement to] means-tested child care benefit at nihil and reject their application for means-tested housing benefit and means-tested contribution towards the costs of health insurance for 2012, the Tax Department has acted in violation of Article 8 \u00a7 1 also read in conjunction with Article 14 of the Convention ... In that framework they argue that [the applicant] should evict [A], her partner and father of her children, in order to revive her entitlement to the benefits, which is in breach of the right to family and private life. According to [the applicant and her husband], the application in this case of the linkage principle [1] serves no legitimate aim. The aim of that principle, namely to induce [A] to leave the Netherlands, cannot be achieved as [A] will risk in Afghanistan to be subjected to treatment in violation of Article 3, which means that the Netherlands cannot remove him. The application of the linkage principle is further disproportionate because, according to [the applicant and her husband], it infringes on the rights of the children.","6.1. It is established that there is family life within the meaning of Article 8 of the Convention between [the applicant], [A] and their children. It can be assumed that a departure of [A] would be disruptive for the family of which he forms a part.","6.2. The application of section 9 \u00a7 2 of the General Act on Means-tested (Benefits) Regulations ( Algemene Wet Inkomensafhankelijke Regelingen; \u201cAWIR\u201d) is based on the linkage principle. To this end, the Administrative Jurisdiction Division refers to the rulings of 22 December 2010 in case no. 200909234\/1\/H2 and 13 February 2013 in case no. 201202839\/1\/A2 (www.raadvanstate.nl). As is apparent from the history of the enactment of the Benefit Entitlement (Residence Status) Act ( Koppelingswet ) (Parliamentary Documents, Lower House of Parliament ( Kamerstukken II) 1994\/95, 24 233, nr. 3, pp. 1-2), the linkage principle laid down in this Act seeks to link the right to allowances, services and benefits ( verstrekkingen, voorzieningen en uitkeringen ) financed by public funds to legal residence in the Netherlands. The aim of the linkage principle is to prevent that illegal aliens, by receiving benefits and allowances, are enabled to continue their unlawful residence or acquire a sham appearance of legality. In addition the linkage principle aims at preventing that the alien who is taking proceedings for obtaining a residence permit gradually appears to be able to build up such a strong legal position \u2013 or the appearance thereof \u2013 that by the time the procedure has ended he appears to be virtually irremovable.","6.3. With reference to the above-cited ruling of 22 December 2010, it is being considered that \u2013 in view of the goal pursued by the linkage principle \u2013 the principle in itself forms a reasonable and objective justification for the difference made between, on the one hand, a Dutch national or an alien with a residence title in accordance with section 8 a. \u2013 e. and l. of the 2000 Aliens Act ( Vreemdelingenwet 2000 ) and, on the other, an alien like [A] who does not have such a residence permit.","6.4. As already previously held by the Administrative Jurisdiction Division in, inter alia, the above cited rulings of 22 December 2010 and 13 February 2013, statutory provisions are not applied when such application is incompatible with treaty provisions that are binding on all persons and with decisions of international organisations. The denial of [the means-tested benefits at issue] may under very exceptional circumstances in a concrete case be regarded as contrary to the principle of non-discrimination under Article 14 in conjunction with the right to respect for family and private life laid down in Article 8, in which case the statutory provision concerned should not be applied. Noting the significant impact the denial of [the three benefits at issue] can have, the Tax Department must assess autonomously a reasoned claim of very exceptional circumstances.","6.5. The Administrative Jurisdiction Division agrees with the Regional Court that the Tax Department has correctly adopted the view that the refusal to grant [the benefits concerned] is not contrary to Article 8, read together with Article 14 of the Convention ... The circumstances relied upon by the applicant and [A] are not to be regarded as very exceptional in the above-mentioned sense. The argument that the children must live in poverty because their father is residing in the Netherlands cannot lead to another finding, already because these [benefits] are not intended to ensure a minimum level of subsistence. The circumstances relied upon do not, therefore, warrant the disapplication of section 9\u00a7 2 of the AWIR.","The argument fails.\u201d","No further appeal lay against this ruling.","B. Relevant domestic law and practice","15. An overview of the relevant domestic law and practice relating to admission proceedings and the concept of \u201clawful stay\u201d is set out in the decision given by the Court in the case of Afif v. the Netherlands (no. 60915\/09, \u00a7\u00a7 26-32, 24 May 2011).","16. Article 93 of the Netherlands Constitution provides that the Convention forms part of domestic law. Pursuant to Article 94 of the Constitution, the provisions of the Convention take precedence over domestic statutory rules in case of conflict.","17. Means-tested housing benefit ( huurtoeslag ) is a form of tax credit intended to help persons\/families with a modest income meet housing costs for rented accommodation. A means-tested contribution towards the costs of (compulsory) health insurance ( zorgtoeslag ), also taking the form of a tax credit, is intended to meet costs for compulsory health insurance for adult persons with a modest income. Minor children are insured free of premium under their parents \u2019 (compulsory) health insurance policy. Means-tested child care benefit ( kindgebonden budget ) [2], which also takes the form of a tax credit, is meant as a contribution to child care costs.","18. According to the provisions of the Benefit Entitlement (Residence Status) Act, in force as from 1 July 1998, and section 10 of the 2000 Aliens Act ( Vreemdelingenwet 2000 ), the entitlement of aliens to any benefits in kind, facilities and social security benefits issued by decision of a public administrative authority is linked to the question whether they have legal residence in the Netherlands. This is referred to as the linkage principle ( koppelingsbeginsel ). An alien who does not have legal residence in the Netherlands is not entitled to any benefits granted by decision of a public administrative authority. Derogation is possible if the benefits relate to education for minors, the provision of essential medical care (i.e. prevention of life-threatening situations or loss of essential functions), the prevention of situations that would jeopardise public health or pose a risk to third parties (for instance prevention of infectious diseases, or care related to pregnancy and childbirth), or the provision of legal assistance to the alien concerned. Its aim was, on the one hand, to discourage irregular residence and, on the other, to prevent irregular residents from benefitting from social security facilities allowing them to become rooted in Dutch society and thereby making it increasingly difficult to expel them.","19. Section 9 \u00a7\u00a7 2 and 3 of the AWIR provides as follows:","\u201c2. In case the partner of the person concerned is a foreigner who does not have legal residence within the meaning of section 8 of the 2000 Aliens Act, the person concerned is not entitled to benefits.","3. If, in a means-tested (benefits) regulation, it is stipulated that in addition to the financial capacity of the person concerned and his\/her partner also the financial capacity of co-residents is of relevance for the assessment of an entitlement to or the level of benefits, the person concerned is not entitled to benefits in case a co-resident is an alien not having legal residence within the meaning of section 8 of the 2000 Aliens Act. If the co-resident is an unaccompanied minor alien within the meaning of section 1, part (e), of the Regulation on Provisions for Asylum-Seekers and Other Categories of Aliens ( Regeling verstrekkingen asielzoekers en andere categorie\u00ebn vreemdelingen ), the first sentence shall not apply until the moment on which the right to reception facilities under this scheme ends.\u201d","20. In a ruling given on 22 October 2014 (ECLI:NL:RVS:2014:3788) the Administrative Jurisdiction Division addressed the issue of proportionality in connection with the (non-)application of the linkage principle. It held as follows:","\u201c4.1. ...Article 14 of the Convention and Article 1 \u00a7 1 of Protocol No. 12 to the Convention do not prohibit any difference in treatment of similar cases, but only treatment which must be regarded as an making an unjustified distinction. As is clear from the Court \u2019 s settled case-law, an unjustified distinction must be assumed if there is no reasonable and objective justification for the distinction made. This occurs if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Konstantin Markin v. Russia [GC], no. 30078\/06, \u00a7 125, ECHR 2012 (extracts) and Biao v. Denmark, no. 38590\/10, \u00a7 92, 25 March 2014).","4.2. The linkage principle is set out in section 10 \u00a7 1 of the 2000 Aliens Act. This provision is intended to link the right to allowances, services and benefits ( verstrekkingen, voorzieningen en uitkeringen ) financed by collective funds to legal residence in the Netherlands (Parliamentary Documents, Lower House of Parliament ( Kamerstukken II ) 1994\/95, 24 233, nr. 3, pp. 1-2). The premise that illegal aliens cannot claim entitlement to collective provisions is considered by the legislator as principle of the law relating to foreign nationals (Parliamentary Documents, Lower House of Parliament 1995\/96, 24 233, No. 6, pp. 3-4). As is apparent from AWIR \u2019 s enactment (Parliamentary Documents, Lower House of Parliament 2004\/05, 29 764, No. 3, p. 44), the legislator has not only considered the linkage principle applicable to the situation referred to in section 10 \u00a7 1 of the 2000 Aliens Act in which an alien applies for allowances, services and benefits, but in addition has also declared it applicable to the situations referred to in section 9 \u00a7\u00a7 2 and 3 of the AWIR in which a Dutch national applies for benefits and he has a partner or co-resident who has no legal residence in the Netherlands within the meaning of section 8 of the 2000 Aliens Act.","The application of Article 9 \u00a7\u00a7 2 and 3 of the AWIR, like in the present case, leads to a distinction between, on the one hand, a Dutch national who cohabits with a Dutch partner or a foreigner with legal residence under section 8 of the 2000 Aliens Act and, on the other, a Dutch national, like the [appellant], who cohabits with an alien who no longer has legal residence.","4.3. In the opinion of the Administrative Jurisdiction Division there exists, at least in principle, a reasonable and objective justification for making a distinction based on nationality and residence status as follows from both section 10 \u00a7 1 of the 2000 Aliens Act and section 9 \u00a7\u00a7 2 and 3 of the AWIR. As can be derived from the constant case law of the Administrative Jurisdiction Division, this distinction pursues a legitimate aim, taking into account that its application intends to prevent that illegal aliens, by receiving allowances and facilities, are enabled to continue their unlawful residence, acquire a sham appearance of full legality or build up such a strong legal position \u2013 or the appearance thereof \u2013 that after the procedure he appears to be virtually irremovable. The provisions of section 9 \u00a7\u00a7 2 and 3 of the AWIR are in line with this to the extent that these provisions in addition intend to prevent that the partner or co-resident who unlawfully resides in the Netherlands could also benefit from the benefits granted to the Dutch national (decisions of the Administrative Jurisdiction Division of 22 December 2010 in case no. 200909234\/1\/H2 and 29 January 2014 in case no. 201302396\/1\/A2).","4.4. Noting what the [appellant] has submitted, the Administrative Jurisdiction Division has to examine whether the means employed \u2013 termination of the benefits previously granted to the [appellant] \u2013 stands in reasonable proportion to the legitimate aim described above under 4.3. In so doing, the Division puts first that \u2013 as apparent from its founding history \u2013 the linkage principle originally solely intended to create a direct link between the legality of residence of aliens and entitlement to collective facilities of the Netherlands government. This principle has been extended to other situations in which a Dutch national or an alien with legal residence in the Netherlands and who on his\/her own account would be entitled to such facilities are nevertheless denied such facilities on the sole ground that he\/she cohabits with a partner or has a co-resident who has no legal residence. The withholding of such facilities, such as in the instant case the termination of means-tested housing benefit, means-tested child care benefit and means-tested contribution towards the costs of health insurance, to a Dutch national of an alien with legal residence in the Netherlands can in special circumstances in a concrete case be regarded as being in violation of the provisions aforementioned under 4.1, in which case the statutory provision concerned, given what is stipulated in Article 94 of the Constitution, should be set aside.","4.5. In the present case, the [appellant] has lost as from 1 October 2012 entitlement to housing benefit, child care benefit and contribution towards the costs of health insurance, to which he would have been entitled had he been considered as a single parent. The Administrative Jurisdiction Division derives from documents in the case-file that [the appellant \u2019 s partner] arrived in the Netherlands in the beginning of 2011 to study physiotherapy. For this purpose the Deputy Minister of Security and Justice granted her a temporary non-asylum based residence permit ( verblijfsvergunning regulier voor bepaalde tijd ), valid from 1 September 2011 to 1 September 2012. It has not been possible for [the partner] to continue these studies successfully because she has had to undergo a very intensive radiation treatment for thyroid cancer and had also fallen pregnant. During her pregnancy, these health problems aggravated so that, despite her efforts, she failed to pass the necessary exams for continuing her study and thus also to obtain an extension of the residence permit granted to her. This serious and worrying health situation has therefore been a decisive factor which resulted in [the partner] being unable to ensure the continuation of legal residency in the Netherlands.","The Administrative Jurisdiction Division further notes that, when the Tax Administration\/Benefits ( Belastingdienst\/Toeslagen ) ended the allowances at issue, the child of [the appellant] and [his partner] \u2013 which child has Dutch nationality \u2013 was two months old.","In view of the above-mentioned health situation of [the partner] and considering that a child is vulnerable at that age and, as regards primary care needs, is highly dependent on the parents, it could not in reason be expected from the [appellant] that he, in order to be able to claim as a single parent the allowances needed by him and and child, to ask his [partner] to leave the home. Indeed, it cannot be excluded that the [partner] should have taken the child for providing it with the necessary care, whereas it is plausible that she was not able to do so due to her health situation. In addition, in this the family life will be significantly disturbed whereby the interests of the very young Dutch child are being compromised which is not in accordance with the guarantees set out in Article 8 of the Convention and accepted by the Court ( Domenech Pardo v Spain (dec.), no. 55996\/00, 3 May 2001; and Jeunesse v. the Netherlands [GC], no. 12738\/10, \u00a7 109, 3 October 2014 www.echr.coe.int).","4.6. The above-described set of facts and circumstances, in which much weight is attached to the health situation of the [partner], leads the Administrative Jurisdiction Division to the conclusion that in this specific case there are such special circumstance that the Tax Administration\/Benefits in terminating the benefits at issue has deployed a disproportionate means in order to achieve the objective mentioned above under 4.3. This finding is not altered by the fact that the [partner] \u2013 as apparent from the letter of the Tax Administration\/Benefits of 22 October 2013 in the case-file \u2013 had lawful residence again as from 15 July and 5 August 2013 and that as from 1 August 2013 the [appellant] is entitled again to the benefits [at issue]. Indeed this does not alter that the [appellant] has not received any benefits over a considerable period \u2013 eleven months \u2013 of time. Application of section 9 \u00a7\u00a7 1 and 2 of the AWIR is therefore incompatible with the prohibition of discrimination laid down in ...Article 14 read in conjunction with Article 8 of the ECHR and Article 1 \u00a7 1 of Protocol 12 to the Convention. In view of the provisions of Article 94 of the Constitution, the Tax Administration\/Benefits should have refrained from applying section 9 \u00a7\u00a7 2 and 3 of the AWIR.","The argument succeeds.\u201d","21. General welfare benefits for a single person under the Work and Social Assistance Act ( Wet Werk en Bijstand ) amount to 70% of the net statutory minimum wage in the Netherlands. Means-tested benefits, which may be granted in addition to general welfare benefits and only upon a request to be made each fiscal year anew, are intended to alleviate costs of renting accommodation, health care insurance and\/or child care for families\/persons with a modest income. Unlike general welfare benefits, means-tested benefits are not intended to secure a minimum level of subsistence ( bestaansminimum )."],"127":["1. The applicant, Ms Shahnaz Heerawi, is an Afghan national, who was born in 1974 and lives in Den Haag. She is represented before the Court by Mr W. Fischer, a lawyer practising in Haarlem.","A. The circumstances of the case","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","3. On an unspecified date the applicant, her husband B and their children fled from Afghanistan to the Netherlands where they applied for and were granted asylum.","4. Also on an unspecified date, suspecting B of involvement in crimes referred to in Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, the Netherlands immigration authorities revoked B \u2019 s asylum-based residence permit in application of Article 1F. In addition, an exclusion order ( ongewenstverklaring ) was imposed on him. On an unspecified date these decisions obtained the force of res iudicata.","5. On an unspecified date the applicant applied for means-tested housing benefit ( huurtoeslag ), a means-tested contribution towards the costs of (compulsory) health insurance ( zorgtoeslag ) and means-tested child care benefit ( kindgebonden budget ) for the fiscal year 2012. On 21 January 2012 the applicant was informed by the Tax Department that on the basis of new information received the applicant \u2019 s entitlement to means-tested housing benefit, a means-tested contribution towards the costs of health insurance and means-tested child care benefit for 2012 had been recalculated and had been determined at nil. She was not entitled to these benefits and a contribution as her husband did not have a valid residence permit.","6. On 17 February 2012 both the applicant and her husband B filed an objection ( bezwaar ) against the decision of 21 January 2012. This objection, including the arguments raised by the applicant and B under Articles 8 and 14 of the Convention, was rejected on 30 May 2012 by the competent Director of the Tax Department. As to the applicant \u2019 s reliance on Articles 8 and 14 of the Convention, the decision reads as follows:","\u201cIn the course of the hearing [on the objection] and referring to Articles 8 and 14 of the Convention, your lawyer has requested to take your family situation into account. These articles concern the right to respect to private and family life (Art. 8) and the prohibition of discrimination (Art. 14).","About this I would like to remark the following. Section 9 \u00a7 2 of the General Act on Means-tested (Benefits) Regulations ( Algemene Wet Inkomensafhankelijke Regelingen; \u201cAWIR\u201d) provides that, in case the partner of the person concerned is a foreigner who does not have legal residence, the person concerned is not entitled to benefits.","It appears from constant case-law of the Council of State that the Tax Department, in granting benefits, may distinguish between persons having a valid residence permit and persons who do not. There is no question of discrimination in those cases. Only in very special case can a violation of the prohibition of discrimination arise.","No very special circumstance has appeared to me. In your letter of 20 February 2012 you submit that you would only have retained entitlement to benefits by evicting your partner from the house. I do not agree with your remark that by this the Tax Department is in fact compelling your partner to leave the house. You have chosen for the existence\/continuation of the present situation and the ensuing legal consequences. In addition it concerns here a situation which the legislator has included deliberately in the law and the consequences of which have as such been intended.\u201d","7. The applicant and B filed an appeal \u2013 also on behalf of their three children E., A. and M. \u2013 with the Regional Court ( rechtbank ) of The Hague.","8. On 15 February 2013, following a hearing held on 16 October 2012, the single-judge chamber ( enkelvoudige kamer ) of the Regional Court of The Hague rejected the appeal. The relevant part of this judgment reads:","\u201c12. As to the [applicant \u2019 s] reliance on the principle of non-discrimination, the Regional Court considers as follows. Discrimination arises when identical cases are not treated equally and when there is no justification for that unequal treatment. The [applicant] has not substantiated her appeal ground in the sense that she has not pointed out cases comparable to her own case in which the Tax Department has nevertheless acted otherwise by granting benefits. Nor has she argued that under certain circumstances the Tax Department pursues a favourable policy which should also apply to her situation. The Regional Court further considers that, in so far as it would concern identical cases, the legislator can make a distinction based on the residence status of \u2013 in this case \u2013 the husband if there exists a reasonable and objective justification for so doing in the light of the aim of the regulation. In the opinion of the Regional Court, this justification has been given in the enactment of the Benefit Entitlement (Residence Status) Act ( Koppelingswet ), namely the elimination of the possibility to claim \u2013 despite the lack of a residence title \u2013 entitlement to benefits and allowances ( uitkeringen en verstrekkingen ) which can stimulate the continuation of in principle unlawful stay and which eventually can lead to a form of pseudo-legality as regards the residence position. With the linkage principle as set out in section 9 \u00a7 2 of the AWIR the person without a residence permit is prevented from drawing advantage via partner and family from benefits and allowances to which the partner and the family are entitled. The Regional Court points out that the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ) has given several rulings in this sense (rulings of 23 January 2008, LJN ( Landelijk Jurisprudentie Nummer [National Jurisprudence Number]): BC2514 for the application of the Rent Allowance Act ( Huursubsidiewet ); 22 July 2009, LJN: BJ3435; 17 March 2010, LJN: BL7842; 22 December 2010, LJN: BO8342; 19 January 2011, LJN: BP1353 for the application of the means-tested contribution towards the costs of health insurance and the means-tested housing benefit).","13. As to the [applicant \u2019 s] reliance on the \u2013 undisturbed \u2013 right to respect for private and family life, the Regional Court considers as follows. The European Court of Human Rights has held previously that Article 8 is also of relevance in cases that relate to the spending of public means. In this the State does have a wide margin of appreciation, whilst the Court, in the framework of the rights to be respected, attaches value to the residence status ( N. v. the United Kingdom [GC], no. 26565\/05, ECHR 2008). It has not been argued and it has not appeared that the denial of the benefits to [the applicant], as such, entails that the [applicant], her husband and her children are being hindered in the exercise of their private and family life, with which it is not being said that the [applicant] and her children would not be in a difficult situation.. However, it is not demonstrated that there are special circumstances offering a ground for finding that the Tax Department in taking the impugned initial decision has violated ... Article 8 of the Convention. In the opinion of the Regional Court, this entails that there is no question of such an encroachment on the applicant \u2019 s right to private and family life that the State should be regarded as being under a positive obligation vis-\u00e0-vis the [applicant]. Even when considering Article 8 also in the light of the Convention on the Rights of the Child (IVRK) and other convention norms cited by the [applicant] Covenant it cannot, in the opinion of the Regional Court, be maintained in reason that the withholding of the benefits to the [applicant] does not demonstrate a \u201cfair balance\u201d between the public interest involved in the refusal of the benefits on the grounds on which the Benefit Entitlement (Residence Status) Act rests and the \u2013 personal \u2013 interests of the [applicant]. In this connection the Regional Court also refers to previous rulings of the Central Appeals Tribunal ( Centrale Raad van Beroep ) (rulings of 26 June 2001, LJN AB2324 and 24 January 2006, LJN AV0197) and to the case-law of the Administrative Jurisdiction Division of the Council of State (rulings of 22 July 2009, LJN: BJ3435; 24 February 2010, LJN: BL5340; 17 March 2010, LJN BL7842, 22 December 2010, LJN: BO8342; 19 January 2011, LJN: BP1353; and 16 January 2013, LJN: BY8526 concerning the means-tested child care benefit).\u201d","The Regional Court also rejected as unfounded the applicant \u2019 s complaint that the Tax Department had failed to respond to her grievances under Articles 8 and 14 of the Convention.","9. On 2 April 2013 the applicant and B \u2013 also on behalf of their three children \u2013 filed a further appeal with the Administrative Jurisdiction Division.","10. On 13 November 2013 the Administrative Jurisdiction Division accepted the further appeal of 18 April 2013, quashed the judgment of 15 February 2013 in so far as the Regional Court had failed to declare inadmissible the appeal filed by the applicant \u2019 s children because the latter had not filed an objection against the decision of 21 January 2012, declared the appeal filed by the children to the Regional Court inadmissible, and confirmed the impugned judgment for the remainder. In its relevant part, this ruling reads:","\u201c5. [The applicant and her husband] argue that the Regional Court has failed to discern that, by setting the .... [entitlement to the three means-tested benefits at issue] at nihil, the Tax Department has acted in violation of Article 8 \u00a7 1 also read in conjunction with Article 14 of the Convention. In that framework they argue that their family is treated differently than a family of which the father has no residence-related problems. They further argue that in this case the linkage principle [1] is not legitimate and justified, and that the aim of that principle, namely to induce [B] to leave [the Netherlands], cannot be achieved as [B] will risk in Afghanistan to be subjected to treatment in violation of Article 3 of the Convention, as a result of which he cannot return to that country. They lastly argue that the Regional Court has failed to appreciate that their children will have to grow up in poverty if the family is no longer entitled to [the benefits concerned] whereas they cannot be blamed for the residence status of their parents.","5.1. It is established that there is family life within the meaning of Article 8 of the Convention between [the applicant], [B] and their children. It can be assumed that a departure of [B] would be disruptive for the family of which he forms a part.","5.2. The application of section 9 \u00a7 2 of the General Act on Means-tested (Benefits) Regulations ( Algemene Wet Inkomensafhankelijke Regelingen; \u201cAWIR\u201d) is based on the linkage principle. To this end, the Administrative Jurisdiction Division refers to the rulings of 22 December 2010 in case no. 200909234\/1\/H2 and 13 February 2013 in case no. 201202839\/1\/A2 (www.raadvanstate.nl). As is apparent from the history of the enactment of the Benefit Entitlement (Residence Status) Act ( Koppelingswet ) (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 1994\/95, 24 233, nr. 3, pp. 1-2), the linkage principle laid down in this Act seeks to link the right to allowances, services and benefits ( verstrekkingen, voorzieningen en uitkeringen ) financed by public funds to legal residence in the Netherlands. The aim of the linkage principle is to prevent that illegal aliens, by receiving benefits and allowances, are enabled to continue their unlawful residence or acquire a sham appearance of legality. In addition the linkage principle aims at preventing that the alien who is taking proceedings for obtaining a residence permit gradually appears to be able to build up such a strong legal position \u2013 or the appearance thereof \u2013 that by the time the procedure has ended he appears to be virtually irremovable.","5.3. With reference to the above-cited ruling of 22 December 2010, it is being considered that \u2013 in view of the goal pursued by the linkage principle \u2013 the principle in itself forms a reasonable and objective justification for the difference made between, on the one hand, a Dutch national or an alien with a residence title in accordance with section 8 a. \u2013 e. and l. of the 2000 Aliens Act ( Vreemdelingenwet 2000 ) and, on the other, an alien like [B] who does not have such a residence permit.","5.4. As already previously held by the Administrative Jurisdiction Division in, inter alia the above cited rulings of 22 December 2010 and 13 February 2013, statutory provisions are not applied when such application is incompatible with treaty provisions that are binding on all persons and with decisions of international organisations. The denial of [the means-tested benefits at issue] may under very exceptional circumstances in a concrete case be regarded as contrary to the principle of non-discrimination under Article 14 in conjunction with the right to respect for family and private life laid down in Article 8, in which case the statutory provision concerned should not be applied. Noting the significant impact the denial of [the three benefits at issue] can have, the Tax Department must assess autonomously a reasoned claim of very exceptional circumstances.","5.5. The Administrative Jurisdiction Division agrees with the Regional Court that the Tax Department has correctly adopted the view that the refusal to grant [the benefits concerned] is not contrary to Article 8, read together with Article 14 of the Convention. The circumstances relied upon by the applicant and [B] are not to be regarded as very exceptional in the above-mentioned sense. The argument that the children must live in poverty because their father is residing in the Netherlands cannot lead to another finding, already because these [benefits] are not intended to ensure a minimum level of subsistence. The circumstances relied upon do not, therefore, warrant the disapplication of section 9\u00a7 2 of the AWIR.","The argument fails.\u201d","No further appeal lay against this ruling.","B. Relevant domestic law and practice","11. An overview of the relevant domestic law and practice relating to admission proceedings and the concept of \u201clawful stay\u201d is set out in the decision given by the Court in the case of Afif v. the Netherlands (no. 60915\/09, \u00a7\u00a7 26-32, 24 May 2011).","12. Article 93 of the Netherlands Constitution provides that the Convention forms part of domestic law. Pursuant to Article 94 of the Constitution, the provisions of the Convention take precedence over domestic statutory rules in case of conflict.","13. Means-tested housing benefit ( huurtoeslag ) is a form of tax credit intended to help persons\/families with a modest income meet housing costs for rented accommodation. A means-tested contribution towards the costs of (compulsory) health insurance ( zorgtoeslag ), also taking the form of a tax credit, is intended to meet costs for compulsory health insurance for adult persons with a modest income. Minor children are insured free of premium under their parents \u2019 (compulsory) health insurance policy. Means-tested child care benefit ( kindgebonden budget ) [2], which also takes the form of a tax credit, is meant as a contribution to child care costs.","14. According to the provisions of the Benefit Entitlement (Residence Status) Act, in force as from 1 July 1998, and section 10 of the 2000 Aliens Act ( Vreemdelingenwet 2000 ), the entitlement of aliens to any benefits in kind, facilities and social security benefits issued by decision of a public administrative authority is linked to the question whether they have legal residence in the Netherlands. This is referred to as the linkage principle ( koppelingsbeginsel ). An alien who does not have legal residence in the Netherlands is not entitled to any benefits granted by decision of a public administrative authority. Derogation is possible if the benefits relate to education for minors, the provision of essential medical care (i.e. prevention of life-threatening situations or loss of essential functions), the prevention of situations that would jeopardise public health or pose a risk to third parties (for instance prevention of infectious diseases, or care related to pregnancy and childbirth), or the provision of legal assistance to the alien concerned. Its aim was, on the one hand, to discourage irregular residence and, on the other, to prevent irregular residents from benefitting from social security facilities allowing them to become rooted in Dutch society and thereby making it increasingly difficult to expel them.","15. Section 9 \u00a7\u00a7 2 and 3 of the AWIR provides as follows:","\u201c2. In case the partner of the person concerned is a foreigner who does not have legal residence within the meaning of section 8 of the 2000 Aliens Act, the person concerned is not entitled to benefits.","3. If, in a means-tested (benefits) regulation, it is stipulated that in addition to the financial capacity of the person concerned and his\/her partner also the financial capacity of co-residents is of relevance for the assessment of an entitlement to or the level of benefits, the person concerned is not entitled to benefits in case a co-resident is an alien not having legal residence within the meaning of section 8 of the 2000 Aliens Act. If the co-resident is an unaccompanied minor alien within the meaning of section 1, part (e), of the Regulation on Provisions for Asylum-Seekers and Other Categories of Aliens ( Regeling verstrekkingen asielzoekers en andere categorie\u00ebn vreemdelingen ), the first sentence shall not apply until the moment on which the right to reception facilities under this scheme ends.\u201d","16. In a ruling given on 22 October 2014 (ECLI:NL:RVS:2014:3788) the Administrative Jurisdiction Division addressed the issue of proportionality in connection with the (non-)application of the linkage principle. It held as follows:","\u201c4.1. ...Article 14 of the Convention and Article 1 \u00a7 1 of Protocol No. 12 to the Convention do not prohibit any difference in treatment of similar cases, but only treatment which must be regarded as an making an unjustified distinction. As is clear from the Court \u2019 s settled case-law, an unjustified distinction must be assumed if there is no reasonable and objective justification for the distinction made. This occurs if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Konstantin Markin v. Russia [GC], no. 30078\/06, \u00a7 125, ECHR 2012 (extracts) and Biao v. Denmark, no. 38590\/10, \u00a7 92, 25 March 2014).","4.2. The linkage principle is set out in section 10 \u00a7 1 of 2000 Aliens Act. This provision is intended to link the right to allowances, services and benefits ( verstrekkingen, voorzieningen en uitkeringen ) financed by collective funds to legal residence in the Netherlands (Parliamentary Documents, Lower House of Parliament ( Kamerstukken II ) 1994\/95, 24 233, nr. 3, pp. 1-2). The premise that illegal aliens cannot claim entitlement to collective provisions is considered by the legislator as principle of the law relating to foreign nationals (Parliamentary Documents, Lower House of Parliament 1995\/96, 24 233, No. 6, pp. 3-4). As is apparent from AWIR \u2019 s enactment (Parliamentary Documents, Lower House of Parliament 2004\/05, 29 764, No. 3, p. 44), the legislator has not only considered the linkage principle applicable to the situation referred to in section 10 \u00a7 1 of the 2000 Aliens Act in which an alien applies for allowances, services and benefits, but in addition has also declared it applicable to the situations referred to in section 9 \u00a7\u00a7 2 and 3 of the AWIR in which a Dutch national applies for benefits and he has a partner or co-resident who has no legal residence in the Netherlands within the meaning of section 8 of the 2000 Aliens Act.","The application of Article 9 \u00a7\u00a7 2 and 3 of the AWIR, like in the present case, leads to a distinction between, on the one hand, a Dutch national who cohabits with a Dutch partner or a foreigner with legal residence under section 8 of the 2000 Aliens Act and, on the other, a Dutch national, like the [appellant], who cohabits with an alien who no longer has legal residence.","4.3. In the opinion of the Administrative Jurisdiction Division there exists, at least in principle, a reasonable and objective justification for making a distinction based on nationality and residence status as follows from both section 10 \u00a7 1 of the 2000 Aliens Act and section 9 \u00a7\u00a7 2 and 3 of the AWIR. As can be derived from the constant case law of the Administrative Jurisdiction Division, this distinction pursues a legitimate aim, taking into account that its application intends to prevent that illegal aliens, by receiving allowances and facilities, are enabled to continue their unlawful residence, acquire a sham appearance of full legality or build up such a strong legal position \u2013 or the appearance thereof \u2013 that after the procedure he appears to be virtually irremovable. The provisions of section 9 \u00a7\u00a7 2 and 3 of the AWIR are in line with this to the extent that these provisions in addition intend to prevent that the partner or co-resident who unlawfully resides in the Netherlands could also benefit from the benefits granted to the Dutch national (decisions of the Administrative Jurisdiction Division of 22 December 2010 in case no. 200909234\/1\/H2 and 29 January 2014 in case no. 201302396\/1\/A2).","4.4. Noting what the [appellant] has submitted, the Administrative Jurisdiction Division has to examine whether the means employed \u2013 termination of the benefits previously granted to the [appellant] \u2013 stands in reasonable proportion to the legitimate aim described above under 4.3. In so doing, the Division puts first that \u2013 as apparent from its founding history \u2013 the linkage principle originally solely intended to create a direct link between the legality of residence of aliens and entitlement to collective facilities of the Netherlands government. This principle has been extended to other situations in which a Dutch national or an alien with legal residence in the Netherlands and who on his\/her own account would be entitled to such facilities are nevertheless denied such facilities on the sole ground that he\/she cohabits with a partner or has a co-resident who has no legal residence. The withholding of such facilities, such as in the instant case the termination of means-tested housing benefit, means-tested child care benefit and means-tested contribution towards the costs of health insurance, to a Dutch national of an alien with legal residence in the Netherlands can in special circumstances in a concrete case be regarded as being in violation of the provisions aforementioned under 4.1, in which case the statutory provision concerned, given what is stipulated in Article 94 of the Constitution, should be set aside.","4.5. In the present case, the [appellant] has lost as from 1 October 2012 entitlement to housing benefit, child care benefit and contribution towards the costs of health insurance, to which he would have been entitled had he been considered as a single parent. The Administrative Jurisdiction Division derives from documents in the case-file that [the appellant \u2019 s partner] arrived in the Netherlands in the beginning of 2011 to study physiotherapy. For this purpose the Deputy Minister of Security and Justice granted her a temporary non-asylum based residence permit ( verblijfsvergunning regulier voor bepaalde tijd ), valid from 1 September 2011 to 1 September 2012. It has not been possible for [the partner] to continue these studies successfully because she has had to undergo a very intensive radiation treatment for thyroid cancer and had also fallen pregnant. During her pregnancy, these health problems aggravated so that, despite her efforts, she failed to pass the necessary exams for continuing her study and thus also to obtain an extension of the residence permit granted to her. This serious and worrying health situation has therefore been a decisive factor which resulted in [the partner] being unable to ensure the continuation of legal residency in the Netherlands.","The Administrative Jurisdiction Division further notes that, when the Tax Administration\/Benefits ( Belastingdienst\/Toeslagen ) ended the allowances at issue, the child of [the appellant] and [his partner] \u2013 which child has Dutch nationality \u2013 was two months old.","In view of the above-mentioned health situation of [the partner] and considering that a child is vulnerable at that age and, as regards primary care needs, is highly dependent on the parents, it could not in reason be expected from the [appellant] that he, in order to be able to claim as a single parent the allowances needed by him and and child, to ask his [partner] to leave the home. Indeed, it cannot be excluded that the [partner] should have taken the child for providing it with the necessary care, whereas it is plausible that she was not able to do so due to her health situation. In addition, in this the family life will be significantly disturbed whereby the interests of the very young Dutch child are being compromised which is not in accordance with the guarantees set out in Article 8 of the Convention and accepted by the Court ( Domenech Pardo v Spain (dec.), no. 55996\/00, 3 May 2001; and Jeunesse v. the Netherlands [GC], no. 12738\/10, \u00a7 109, 3 October 2014 www.echr.coe.int).","4.6. The above-described set of facts and circumstances, in which much weight is attached to the health situation of the [partner], leads the Administrative Jurisdiction Division to the conclusion that in this specific case there are such special circumstance that the Tax Administration\/Benefits in terminating the benefits at issue has deployed a disproportionate means in order to achieve the objective mentioned above under 4.3. This finding is not altered by the fact that the [partner] \u2013 as apparent from the letter of the Tax Administration\/Benefits of 22 October 2013 in the case-file \u2013 had lawful residence again as from 15 July and 5 August 2013 and that as from 1 August 2013 the [appellant] is entitled again to the benefits [at issue]. Indeed this does not alter that the [appellant] has not received any benefits over a considerable period \u2013 eleven months \u2013 of time. Application of section 9 \u00a7\u00a7 1 and 2 of the AWIR is therefore incompatible with the prohibition of discrimination laid down in ...Article 14 read in conjunction with Article 8 of the ECHR and Article 1 \u00a7 1 of Protocol 12 to the Convention. In view of the provisions of Article 94 of the Constitution, the Tax Administration\/Benefits should have refrained from applying section 9 \u00a7\u00a7 2 and 3 of the AWIR.","The argument succeeds.\u201d","17. General welfare benefits for a single person under the Work and Social Assistance Act ( Wet Werk en Bijstand ) amount to 70% of the net statutory minimum wage in the Netherlands. Means-tested benefits, which may be granted in addition to general welfare benefits and only upon a request to be made each fiscal year anew, are intended to alleviate costs of renting accommodation, health care insurance and\/or child care for families\/persons with a modest income. Unlike general welfare benefits, means-tested benefits are not intended to secure a minimum level of subsistence ( bestaansminimum )."],"128":["1. The applicants are Afghan nationals. The applicant in the first case, Mrs Sorraya Aghmadi, was born in 1964 and she is the mother of the applicant in the second case, Ms Asma Jaghubi, who was born in 1999. The applicants are living in Almere and were represented before the Court by Mr J. Klaas, a lawyer practising in Haarlem.","A. The circumstances of the case","2. The facts of the case, as submitted by the applicants, may be summarised as follows.","3. On an unspecified date, the first applicant, her husband C and their three children M., H. and F. (born in 1987, 1988 and 1991, respectively) fled to the Netherlands where they applied for and, as from 4 July 2001, were all granted asylum. In May 1999 the second applicant was born as the fourth child of the family. On an unspecified date, the oldest three children M., H. and F. were granted Netherlands nationality.","4. On 19 December 2008 the Netherlands immigration authorities withdrew the asylum-based residence permit of C in application of Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees. He unsuccessfully challenged this decision in administrative appeal proceedings in which the final ruling was given on 11 September 2012 by the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ). In addition a ten years \u2019 entry ban ( inreisverbod ) was imposed on C on 10 April 2014. He also challenged this decision on administrative appeal proceedings which, at the time of the introduction of the two applications, were still pending before the Administrative Jurisdiction Division. No further information about these proceedings has been submitted.","5. On an unspecified date the first applicant applied for means-tested housing benefit ( huurtoeslag ), a means-tested contribution towards the costs of (compulsory) health insurance ( zorgtoeslag ) and means-tested child care benefit ( kindgebonden budget ) for the fiscal year 2012.","6. On 23 October 2012 the first applicant was informed by the Tax Department that, on the basis of new information received, her entitlement to means-tested housing benefit and means-tested child care benefit for 2012 had been recalculated and had been determined at nil as from October 2012. As from this month, she was no longer entitled to these benefits as her husband did not have a valid residence permit.","On the same date C was informed that, as from October 2012, he was no longer entitled to a means-tested contribution towards the costs of (compulsory) health insurance as he did not have a residence permit.","7. On 29 November 2012 both the first applicant and C \u2013 also on behalf of the second applicant and the other children \u2013 filed an objection ( bezwaar ) against the decisions of 23 October 2012. These objections, including the arguments raised by the appellants under Articles 8 and 14 of the Convention, were rejected on 12 March 2013 by the competent Director of the Tax Department.","8. On 20 March 2013 the first applicant and C \u2013 also on behalf of their children living at home \u2013 filed an appeal with the Regional Court ( rechtbank ) of The Hague.","9. By judgment of 22 August 2013, following a hearing held on 11 July 2013, the single-judge chamber ( enkelvoudige kamer ) of the Regional Court of The Hague sitting in Utrecht rejected the appeals, including the appellants \u2019 arguments under Articles 8 and 14 of the Convention.","10. On 1 October 2013 the first applicant and C \u2013 also on behalf of their minor daughter (the second applicant) \u2013 filed a further appeal with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ).","11. On 14 May 2014 the Administrative Jurisdiction Division rejected the further appeal and upheld the impugned judgment. In its relevant part, this ruling reads:","\u201c3.[The first applicant and her husband] argue that the refusal to grant them [the three means-tested benefits at issue] is contrary to the right to respect of their family life as protected by Article 8 of the Convention, since due to this refusal they will fall below the minimal level of subsistence as considered acceptable in the Netherlands. [The first applicant] claims that she is only entitled to benefits if she evicts her partner and the father of her children.","3.1. Article 8 of the Convention not only seeks to compel States to abstain from interfering but may also, under certain circumstances, entail positive obligations inherent in law that are necessary for an effective guarantee of the right to (respect for) family life. The European Court of Human Rights (hereafter: Court) has held several times that Article 8 of the Convention is also relevant in cases concerning the use of public funds. In this, it is of importance that in such a case the State enjoys an extra wide \u2018 margin of appreciation \u2019 whilst in the determination of the protection that those concerned enjoy under the Convention, the Court attaches importance to whether or not the person concerned has a residence right.","More specifically, in its ruling of 3 May 2001 \u2013 Domenech Pardo v. Spain, no. 55996\/00 \u2013 the Court considered that, although the Convention does not, as such, guarantee a right to benefits, it cannot be ruled out that, in certain circumstances, the refusal to grant a social benefit \u2013 in that case an orphan \u2019 s pension \u2013 may raise issues under Article 8 of the Convention, for instance when, as a result of that refusal, the normal development of the minor \u2019 s family life is rendered impossible.","3.2. With reference to the rulings of 26 February 2014 in case no. 201302678\/1\/A2 and of 12 March 2014 in case no. 201306127\/1\/A2 (www.raadvanstate.nl), the Division considers that the provision of [the three means-tested benefits concerned] does not aim to guarantee a minimum level of subsistence. This means, in the Division \u2019 s opinion, that no positive obligation arises from Article 8 of the Convention to provide [the benefits concerned]. A positive obligation as considered here rests primarily with the administrative bodies charged with the implementation of facilities for aliens.","The above entails that the Division concludes that in respect of those who do not hold a residence permit within the meaning of section8 a. \u2013 e. and l. of the 2000 Aliens Act ( Vreemdelingenwet 2000 ), like [C], as well as those with a partner who does not have a residence permit within the meaning of section 8 a. \u2013 e. and l. of the 2000 Aliens Act, like [the first applicant], it must be held that the provision of [the benefits at issue] does not concern implementing positive obligations guaranteed by Article 8 of the Convention. The Regional Court has correctly seen no reason in the argument of [the first applicant and her husband] for finding that the refusal of the Tax Department to provide [the benefits concerned] from October to December 2012 is contrary to Article 8 of the Convention.","3.3. The argument fails.","4. [The first applicant and her husband] argue that the Regional Court, in the framework of the [appellants \u2019 ] reliance on Article 14 read together with Article 8 of the Convention (...) and by finding that the Tax Department has not unjustly taken the view that the circumstances invoked by [the appellants] were not so special that in this concrete case, after balancing the interests concerned, these should lead to granting [the benefits concerned], has failed to recognise that in [the appellants \u2019 ] case the aim of the linkage principle [1] cannot be realised. To this end, they argue that the risk of treatment prohibited in Article 3 of the Convention stands in the way of the return of [C] to his country of origin. [The first applicant] submits that she cannot help that her partner \u2013 due to the application of Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees \u2013 does not have a residence permit and cannot return to the country of origin, but that she and her minor child are affected by this. The denial of benefits because of the immigration status of her partner is therefore unreasonable and for this reason section 9 \u00a7 2 of the General Act on Means-tested (Benefits) Regulations ( Algemene Wet Inkomensafhankelijke Regelingen; \u201cAWIR\u201d) should not be applied.","They further argue that their minor daughter is growing up in poverty and is harmed in her development whereas under Article 27 of the 1989 Convention on the Rights of the Child (\u201cthe 1989 Convention\u201d) she is entitled to an adequate standard of living and the State being obliged under Article 18 of the 1989 Convention to assist parents in their child-rearing tasks whereby under Article 3 of the 1989 Convention he interests of the child must be taken into account and put first.","4.1. In so far as [the appellants] argue that the refusal [of the benefits at issue] is in violation of the prohibition of discrimination set out in Article 14 of the Convention taken together with the right to respect for family life embedded in Article 8 of the Convention, the Division considers, with reference to the ruling of the Division of 29 January 2014 in case no. 201302396\/1\/A2, as follows. It flows from the Court \u2019 s judgment of 22 March 2012 in the case of Konstatin Markin v. Russia, no. 30078\/06, \u00a7 129 et seq. (www.echr.coe.int) that such an argument cannot only be considered if there is a violation of a positive obligation arising from Article 8 of the Convention, but that it is sufficient that the facility requested falls within the ambit of Article 8 of the ECHR. That is the case here.","4.2. With reference to constant case-law (inter alia the rulings of the Division of 12 March 2014 in case no. 201306127\/1\/A2 and 19 February 2014 in case no. 201305853\/1\/A2), it is considered that the application by the Tax Department of section 9 \u00a7 2 of the AWIR and section 10 \u00a7 1 of the 2000 Aliens Act is based on the linkage principle. The legislator \u2019 s intention with this principle is, inter alia, to prevent that illegal aliens, by receiving benefits and allowances, are enabled to continue their unlawful residence or acquire a sham appearance of legality. In view of this aim, the linkage principle forms in itself a reasonable and objective justification for the difference made between, on the one hand, a Dutch national or an alien with a residence title in accordance with section 8 a. \u2013 e. and l. of the 2000 Aliens Act and, on the other, an alien like [C] who does not have such a residence permit, and it cannot be found that section 9 \u00a7 2 of the AWIR or section 10 \u00a7 1 of the 2000 Aliens Act is in itself contrary to Article 14 read in conjunction with Article 8 of the Convention. ...","[The appellants] invoked very special circumstances. As the Regional Court rightly considered, the circumstances invoked by them are not to be regarded as so special that, in this concrete case, the Tax Department should, after having balanced the interests concerned, have granted [the benefits at issue]. There is therefore no ground for the finding that the Tax Department should not have applied section 9 \u00a7\u00a7 2 and 3 of the AWIR or section 10 \u00a7 1 of the 2000 Aliens Act.","4.3. To the extent that [the appellants] have invoked Articles 3, 18 and 27 of the 1989 Convention on the Rights of the Child, the following is considered.","4.4. As the Division has previously considered (ruling of 12 March 2014 in case no. 201305121\/1\/A2), Article 3 of the 1989 Convention has direct effect in so far as its purport is that in all measures concerning children the interests of the child concerned are to be taken into account. As regards the weight to be attributed to the child \u2019 s interest in a concrete case, Article 3 of the 1989 Convention, noting its wording, does not contain a standard which \u2013 without further elaboration in domestic rules and regulations \u2013 can be applied directly by the [domestic] judge. However, in this connection, the administrative judge is to assess whether the administrative body has sufficiently recognised and taken into account the interests of the child and thus has remained within the limits of the law in the exercise of its powers. This test is of a restrained nature.","The Regional Court has correctly considered that, noting the circumstances invoked by [the appellants] in the objection proceedings, there is no ground for finding that the Tax Department has insufficiently taken the interests of their child into account.","4.5. With reference to ruling of 5 February 2014 in case no. 201301840\/1\/A2, the Division considers that the decisions of 12 March 2013 have not been taken with regard to the daughter of [the appellants]. It concerns here a financial contribution from the State for the costs of children, health insurance and the rent of accommodation, to which a child itself cannot have a claim. The parent of the child, the person insured or the tenant, respectively, is the beneficiary. It is further considered that Articles 18 and 27 of the 1989 Convention do not contain standards that are suited for direct application by the [domestic] court, since for this they are not sufficiently concrete for this and thus require further elaboration in national rules and regulations.","4.6. The conclusion of the above is that the argument fails.\u201d","No further appeal lay against this ruling.","B. Relevant domestic law and practice","12. An overview of the relevant domestic law and practice relating to admission proceedings and the concept of \u201clawful stay\u201d is set out in the decision given by the Court in the case of Afif v. the Netherlands (no. 60915\/09, \u00a7\u00a7 26-32, 24 May 2011).","13. Article 93 of the Netherlands Constitution provides that the Convention forms part of domestic law. Pursuant to Article 94 of the Constitution, the provisions of the Convention take precedence over domestic statutory rules in case of conflict.","14. Means-tested housing benefit ( huurtoeslag ) is a form of tax credit intended to help persons\/families with a modest income meet housing costs for rented accommodation. A means-tested contribution towards the costs of (compulsory) health insurance ( zorgtoeslag ), also taking the form of a tax credit, is intended to meet costs for compulsory health insurance for adult persons with a modest income. Minor children are insured free of premium under their parents \u2019 (compulsory) health insurance policy. Means-tested child care benefit ( kindgebonden budget ) [2], which also takes the form of a tax credit, is meant as a contribution to child care costs.","15. According to the provisions of the Benefit Entitlement (Residence Status) Act, in force as from 1 July 1998, and section 10 of the 2000 Aliens Act ( Vreemdelingenwet 2000 ), the entitlement of aliens to any benefits in kind, facilities and social security benefits issued by decision of a public administrative authority is linked to the question whether they have legal residence in the Netherlands. This is referred to as the linkage principle ( koppelingsbeginsel ). An alien who does not have legal residence in the Netherlands is not entitled to any benefits granted by decision of a public administrative authority. Derogation is possible if the benefits relate to education for minors, the provision of essential medical care (i.e. prevention of life-threatening situations or loss of essential functions), the prevention of situations that would jeopardise public health or pose a risk to third parties (for instance prevention of infectious diseases, or care related to pregnancy and childbirth), or the provision of legal assistance to the alien concerned. Its aim was, on the one hand, to discourage irregular residence and, on the other, to prevent irregular residents from benefitting from social security facilities allowing them to become rooted in Dutch society and thereby making it increasingly difficult to expel them.","16. Section 9 \u00a7\u00a7 2 and 3 of the AWIR provides as follows:","\u201c2. In case the partner of the person concerned is a foreigner who does not have legal residence within the meaning of section 8 of the 2000 Aliens Act, the person concerned is not entitled to benefits.","3. If, in a means-tested (benefits) regulation, it is stipulated that in addition to the financial capacity of the person concerned and his\/her partner also the financial capacity of co-residents is of relevance for the assessment of an entitlement to or the level of benefits, the person concerned is not entitled to benefits in case a co-resident is an alien not having legal residence within the meaning of section 8 of the 2000 Aliens Act. If the co-resident is an unaccompanied minor alien within the meaning of section 1, part (e), of the Regulation on Provisions for Asylum-Seekers and Other Categories of Aliens ( Regeling verstrekkingen asielzoekers en andere categorie\u00ebn vreemdelingen ), the first sentence shall not apply until the moment on which the right to reception facilities under this scheme ends.\u201d","17. In a ruling given on 22 October 2014 (ECLI:NL:RVS:2014:3788) the Administrative Jurisdiction Division addressed the issue of proportionality in connection with the (non-)application of the linkage principle. It held as follows:","\u201c4.1. ...Article 14 of the Convention and Article 1 \u00a7 1 of Protocol No. 12 to the Convention do not prohibit any difference in treatment of similar cases, but only treatment which must be regarded as an making an unjustified distinction. As is clear from the Court \u2019 s settled case-law, an unjustified distinction must be assumed if there is no reasonable and objective justification for the distinction made. This occurs if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Konstantin Markin v. Russia [GC], no. 30078\/06, \u00a7 125, ECHR 2012 (extracts) and Biao v. Denmark, no. 38590\/10, \u00a7 92, 25 March 2014).","4.2. The linkage principle is set out in section 10 \u00a7 1 of the 2000 Aliens Act. This provision is intended to link the right to allowances, services and benefits ( verstrekkingen, voorzieningen en uitkeringen ) financed by collective funds to legal residence in the Netherlands (Parliamentary Documents, Lower House of Parliament ( Kamerstukken II ) 1994\/95, 24 233, nr. 3, pp. 1-2). The premise that illegal aliens cannot claim entitlement to collective provisions is considered by the legislator as principle of the law relating to foreign nationals (Parliamentary Documents, Lower House of Parliament 1995\/96, 24 233, No. 6, pp. 3-4). As is apparent from AWIR \u2019 s enactment (Parliamentary Documents, Lower House of Parliament 2004\/05, 29 764, No. 3, p. 44), the legislator has not only considered the linkage principle applicable to the situation referred to in section 10 \u00a7 1 of the 2000 Aliens Act in which an alien applies for allowances, services and benefits, but in addition has also declared it applicable to the situations referred to in section 9 \u00a7\u00a7 2 and 3 of the AWIR in which a Dutch national applies for benefits and he has a partner or co-resident who has no legal residence in the Netherlands within the meaning of section 8 of the 2000 Aliens Act.","The application of Article 9 \u00a7\u00a7 2 and 3 of the AWIR, like in the present case, leads to a distinction between, on the one hand, a Dutch national who cohabits with a Dutch partner or a foreigner with legal residence under section 8 of the 2000 Aliens Act and, on the other, a Dutch national, like the [appellant], who cohabits with an alien who no longer has legal residence.","4.3. In the opinion of the Administrative Jurisdiction Division there exists, at least in principle, a reasonable and objective justification for making a distinction based on nationality and residence status as follows from both section 10 \u00a7 1 of the 2000 Aliens Act and section 9 \u00a7\u00a7 2 and 3 of the AWIR. As can be derived from the constant case law of the Administrative Jurisdiction Division, this distinction pursues a legitimate aim, taking into account that its application intends to prevent that illegal aliens, by receiving allowances and facilities, are enabled to continue their unlawful residence, acquire a sham appearance of full legality or build up such a strong legal position \u2013 or the appearance thereof \u2013 that after the procedure he appears to be virtually irremovable. The provisions of section 9 \u00a7\u00a7 2 and 3 of the AWIR are in line with this to the extent that these provisions in addition intend to prevent that the partner or co-resident who unlawfully resides in the Netherlands could also benefit from the benefits granted to the Dutch national (decisions of the Administrative Jurisdiction Division of 22 December 2010 in case no. 200909234\/1\/H2 and 29 January 2014 in case no. 201302396\/1\/A2).","4.4. Noting what the [appellant] has submitted, the Administrative Jurisdiction Division has to examine whether the means employed \u2013 termination of the benefits previously granted to the [appellant] \u2013 stands in reasonable proportion to the legitimate aim described above under 4.3. In so doing, the Division puts first that \u2013 as apparent from its founding history \u2013 the linkage principle originally solely intended to create a direct link between the legality of residence of aliens and entitlement to collective facilities of the Netherlands government. This principle has been extended to other situations in which a Dutch national or an alien with legal residence in the Netherlands and who on his\/her own account would be entitled to such facilities are nevertheless denied such facilities on the sole ground that he\/she cohabits with a partner or has a co-resident who has no legal residence. The withholding of such facilities, such as in the instant case the termination of means-tested housing benefit, means-tested child care benefit and means-tested contribution towards the costs of health insurance, to a Dutch national of an alien with legal residence in the Netherlands can in special circumstances in a concrete case be regarded as being in violation of the provisions aforementioned under 4.1, in which case the statutory provision concerned, given what is stipulated in Article 94 of the Constitution, should be set aside.","4.5. In the present case, the [appellant] has lost as from 1 October 2012 entitlement to housing benefit, child care benefit and contribution towards the costs of health insurance, to which he would have been entitled had he been considered as a single parent. The Administrative Jurisdiction Division derives from documents in the case-file that [the appellant \u2019 s partner] arrived in the Netherlands in the beginning of 2011 to study physiotherapy. For this purpose the Deputy Minister of Security and Justice granted her a temporary non-asylum based residence permit ( verblijfsvergunning regulier voor bepaalde tijd ), valid from 1 September 2011 to 1 September 2012. It has not been possible for [the partner] to continue these studies successfully because she has had to undergo a very intensive radiation treatment for thyroid cancer and had also fallen pregnant. During her pregnancy, these health problems aggravated so that, despite her efforts, she failed to pass the necessary exams for continuing her study and thus also to obtain an extension of the residence permit granted to her. This serious and worrying health situation has therefore been a decisive factor which resulted in [the partner] being unable to ensure the continuation of legal residency in the Netherlands.","The Administrative Jurisdiction Division further notes that, when the Tax Administration\/Benefits ( Belastingdienst\/Toeslagen ) ended the allowances at issue, the child of [the appellant] and [his partner] \u2013 which child has Dutch nationality \u2013 was two months old.","In view of the above-mentioned health situation of [the partner] and considering that a child is vulnerable at that age and, as regards primary care needs, is highly dependent on the parents, it could not in reason be expected from the [appellant] that he, in order to be able to claim as a single parent the allowances needed by him and and child, to ask his [partner] to leave the home. Indeed, it cannot be excluded that the [partner] should have taken the child for providing it with the necessary care, whereas it is plausible that she was not able to do so due to her health situation. In addition, in this the family life will be significantly disturbed whereby the interests of the very young Dutch child are being compromised which is not in accordance with the guarantees set out in Article 8 of the Convention and accepted by the Court ( Domenech Pardo v Spain (dec.), no. 55996\/00, 3 May 2001; and Jeunesse v. the Netherlands [GC], no. 12738\/10, \u00a7 109, 3 October 2014 www.echr.coe.int).","4.6. The above-described set of facts and circumstances, in which much weight is attached to the health situation of the [partner], leads the Administrative Jurisdiction Division to the conclusion that in this specific case there are such special circumstance that the Tax Administration\/Benefits in terminating the benefits at issue has deployed a disproportionate means in order to achieve the objective mentioned above under 4.3. This finding is not altered by the fact that the [partner] \u2013 as apparent from the letter of the Tax Administration\/Benefits of 22 October 2013 in the case-file \u2013 had lawful residence again as from 15 July and 5 August 2013 and that as from 1 August 2013 the [appellant] is entitled again to the benefits [at issue]. Indeed this does not alter that the [appellant] has not received any benefits over a considerable period \u2013 eleven months \u2013 of time. Application of section 9 \u00a7\u00a7 1 and 2 of the AWIR is therefore incompatible with the prohibition of discrimination laid down in ...Article 14 read in conjunction with Article 8 of the ECHR and Article 1 \u00a7 1 of Protocol 12 to the Convention. In view of the provisions of Article 94 of the Constitution, the Tax Administration\/Benefits should have refrained from applying section 9 \u00a7\u00a7 2 and 3 of the AWIR.","The argument succeeds.\u201d","18. General welfare benefits for a single person under the Work and Social Assistance Act ( Wet Werk en Bijstand ) amount to 70% of the net statutory minimum wage in the Netherlands. Means-tested benefits, which may be granted in addition to general welfare benefits and only upon a request to be made each fiscal year anew, are intended to alleviate costs of renting accommodation, health care insurance and\/or child care for families\/persons with a modest income. Unlike general welfare benefits, means-tested benefits are not intended to secure a minimum level of subsistence ( bestaansminimum )."],"129":["1. The applicants are naturalised Dutch nationals of Afghan origin. The applicant in the first case, Mrs A .D., was born in 1964 and she is the mother of the applicant in the second case, Ms L. K. who was born in 2005. The applicants are living in West Drayton (United Kingdom) and were represented before the Court by Mrs S. \u00c7ak\u0131c\u0131, a lawyer practising in Haarlem.","A. The circumstances of the case","2. The facts of the case, as submitted by the applicants, may be summarised as follows.","3. On an unspecified date, the first applicant and two of her children M. and S. (born in 1988 and 1991, respectively) fled from Afghanistan to the Netherlands where they applied for and, as from 27 February 1998, were granted asylum.","4. The first applicant \u2019 s husband D, who was detained in Afghanistan at the time of the first applicant \u2019 s flight, joined them in the Netherlands on an unspecified date and, on 22 October 2000, also applied for asylum.","5. On 22 October 2003 the Netherlands immigration authorities rejected D \u2019 s application for an asylum-based residence permit in application of Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees. He unsuccessfully challenged this decision in administrative appeal proceedings in which the final ruling was given on 2 August 2007 by the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ). His subsequent, fresh asylum application, in which he argued inter alia that his removal to Afghanistan would be contrary to Article 3 of the Convention, was also unsuccessful. The final decision on this second request was taken on 28 June 2010 by the Administrative Jurisdiction Division.","6. In the meantime, in January 2005 the second applicant had been born as the third child of the family. On an unspecified date, the first and second applicants as well as M. and S. were granted Dutch nationality.","7. On an unspecified date the first applicant applied for means-tested housing benefit ( huurtoeslag ) and a means-tested contribution towards the costs of (compulsory) health insurance ( zorgtoeslag ) for the fiscal year 2010.","8. On 20 February 2012, D left the family home for an unknown destination.","9. In two separate decisions of 30 June 2012 the first applicant was informed by the Tax Department that, as D was not lawfully residing in the Netherlands, she was not entitled to means-tested housing benefit and to a means-tested contribution towards the costs of (compulsory) health insurance from 1 January 2010 to 31 December 2010.","10. On 8 August 2012 the first applicant and D \u2013 also on behalf of the second applicant \u2013 filed an objection ( bezwaar ) against the decisions of 30 June 2012. These objections, including the arguments raised by the appellants under Articles 8 and 14 of the Convention, were rejected on 28 November 2012 by the competent Director of the Tax Department.","11. On 2 January 2013 the first applicant and D \u2013 also on behalf of the second applicant \u2013 filed an appeal with the Regional Court ( rechtbank ) of The Hague.","12. On 8 May 2013 the Director of the Tax Department informed the first applicant that \u2013 having noted the filed appeal\u2013 a further investigation had been carried out which had led to a revision of the decisions of 28 November 2012. The first applicant \u2019 s objection was accepted as being founded for the period between 1 January 2010 and 30 June 2010 and unfounded for the period between 1 July 2010 and 31 December 2010 as the applicant \u2019 s husband had been lawfully staying in the Netherlands until 28 June 2010. Consequently, the first applicant was entitled to means-tested housing benefit and a means-tested contribution towards the costs of health insurance from 1 January 2010 until 30 June 2010. The Director further indicated that the formal revised decisions would follow shortly.","13. On 14 May 2013 the applicants informed the Regional Court that the revised decisions on their objections did not give them cause to withdraw their appeals.","14. On 14 June 2013 the revised formal decisions of the Director of the Tax Department were sent to the first applicant.","15. In July 2013, the applicants and their daughter\/sister S. moved from the Netherlands to the United Kingdom. On 24 July 2013 the applicants filed an objection with the Tax Department against the fresh decisions of 14 June 2013.","16. On 10 September 2013, following a hearing held on 17 May 2013, the single-judge chamber ( enkelvoudige kamer ) of the Regional Court of The Hague sitting in Haarlem declared inadmissible the appeals filed against the decisions of 28 November 2012 and rejected the appeals filed against the decisions of 8 May 2013. On 21 October 2013 the applicants filed a further appeal with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ).","17. On 3 January 2014 the Director of the Tax Department rejected the applicants \u2019 objections of 24 July 2013. The applicants filed an appeal with the Regional Court of The Hague.","18. On 17 March 2014 the Regional Court informed the applicants that their appeals had been transmitted to the Administrative Jurisdiction Division given the pending proceedings on the applicants \u2019 further appeals concerning the two benefits for 2010 at issue.","19. On 14 May 2014 the Administrative Jurisdiction Division rejected the applicants \u2019 further appeal and confirmed the impugned judgement. In its relevant part, this ruling reads:","\u201c5. [The first applicant] argues that the refusal to grant [the two means-tested benefits at issue] is contrary to the right to respect of her and her child \u2019 s family life as protected by Article 8 of the Convention, since due to this refusal she will fall below the minimal level of subsistence as considered acceptable in the Netherlands and that she - as claimed by her - is only entitled to benefits if she evicts her partner and the father of her children.","5.1. Article 8 of the Convention not only seeks to compel States to abstain from interfering but may also, under certain circumstances, entail positive obligations inherent in law that are necessary for an effective guarantee of the right to (respect for) family life. The European Court of Human Rights (hereafter: Court) has held several times that Article 8 of the Convention is also relevant in cases concerning the use of public funds. In this, it is of importance that in such a case the State enjoys an extra wide \u2018 margin of appreciation \u2019 whilst in the determination of the protection that those concerned enjoy under the Convention, the Court attaches importance to whether or not the person concerned has a residence right.","More specifically, in its ruling of 3 May 2001 \u2013 Domenech Pardo v. Spain, no. 55996\/00 \u2013 the Court considered that, although the Convention does not, as such, guarantee a right to benefits, it cannot be ruled out that, in certain circumstances, the refusal to grant a social benefit \u2013 in that case an orphan \u2019 s pension \u2013 may raise issues under Article 8 of the Convention, for instance when, as a result of that refusal, the normal development of the minor \u2019 s family life is rendered impossible.","5.2. With reference to the rulings of 26 February 2014 in case no. 201302678\/1\/A2 and of 12 March 2014 in case no. 201306127\/1\/A2 (www.raadvanstate.nl), the Division considers that the provision of [the two means-tested benefits concerned] does not aim to guarantee a minimum level of subsistence. This means, in the Division \u2019 s opinion, that no positive obligation arises from Article 8 of the Convention to provide [the benefits concerned]. A positive obligation as considered here rests primarily with the administrative bodies charged with the implementation of facilities for aliens.","The above entails that the Division concludes that in respect of those with a partner who does not have a residence permit within the meaning of section 8 a. \u2013 e. and l. of the 2000 Aliens Act ( Vreemdelingenwet 2000 ), like [the first applicant], it must be held that the provision of [the benefits at issue] does not concern implementing positive obligations guaranteed by Article 8 of the Convention. The Regional Court has correctly seen no reason in the argument of [the first applicant] for finding that the refusal of the Tax Department to provide [the benefits concerned] from October to December 2012 is contrary to Article 8 of the Convention.","5.3. The argument fails.","6. [The first applicant] argues that the Regional Court, in the framework of her reliance on Article 14 read together with Article 8 of the Convention (...) and by finding that the Tax Department has not unjustly taken the view that the circumstances invoked by her were not so special that in this concrete case, after balancing the interests concerned, these should lead to granting [the benefits concerned], has failed to recognize that in [the first applicant \u2019 s] case the aim of the linkage principle [1] cannot be realised. To this end, she argues that the risk of treatment prohibited in Article 3 of the Convention stands in the way of the return of [the applicants \u2019 husband\/father] to his country of origin. [The first applicant] submits that she cannot help that her partner \u2013 due to the application of Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees \u2013 does not have a residence permit and cannot return to the country of origin, but that she is affected by this.","In addition the means-tested contribution towards the costs of health insurance is an individual special-purpose benefit ( individuele doeluitkering ) granted to her from which her partner does not benefit. The denial of benefits because of the immigration status of her partner is therefore unreasonable and for this reason section 9 \u00a7 2 of the General Act on Means-tested (Benefits) Regulations ( Algemene Wet Inkomensafhankelijke Regelingen; \u201cAWIR\u201d) should not be applied.","She further argues that her minor daughter is growing up in poverty and is harmed in her development whereas under Article 27 of the 1989 Convention on the Rights of the Child (\u201cthe 1989 Convention\u201d) she is entitled to an adequate standard of living and the State being obliged under Article 18 of the 1989 Convention to assist parents in their child-rearing tasks whereby under Article 3 of the 1989 Convention he interests of the child must be taken into account and put first.","6.1. In so far as [the first applicant] argues that the refusal [of the benefits at issue] is in violation of the prohibition of discrimination set out in Article 14 of the Convention taken together with the right to respect for family life embedded in Article 8 of the Convention, the Division considers, with reference to the ruling of the Division of 29 January 2014 in case no. 201302396\/1\/A2, as follows. It flows from the Court \u2019 s judgment of 22 March 2012 in the case of Konstantin Markin v. Russia, no. 30078\/06, \u00a7 129 et seq. (www.echr.coe.int) that such an argument cannot only be considered if there is a violation of a positive obligation arising from Article 8 of the Convention, but that it is sufficient that the benefit requested falls within the ambit of Article 8 of the ECHR. That is the case here.","6.2. With reference to constant case-law (inter alia the rulings of the Division of 12 March 2014 in case no. 201306127\/1\/A2), it is considered that the application by the Tax Department of section 9 \u00a7 2 of the AWIR is based on the linkage principle. The legislator \u2019 s intention with this principle is, inter alia, to prevent that illegal aliens, by receiving benefits and allowances, are enabled to continue their unlawful residence or acquire a sham appearance of legality. In view of this aim, the linkage principle forms in itself a reasonable and objective justification for the difference made between, on the one hand, a Dutch national or an alien with a residence title in accordance with section 8 a. \u2013 e. and l. of the 2000 Aliens Act and, on the other, an alien like [D] who does not have such a residence permit, and it cannot be found that section 9 \u00a7 2 of the AWIR is in itself contrary to Article 14 read in conjunction with Article 8 of the Convention. ...","[The first appellant] invoked very special circumstances. As the Regional Court rightly considered, the circumstances invoked by her are not to be regarded as so special that, in this concrete case, the Tax Department should, after having balanced the interests concerned, have granted [the benefits at issue]. There is therefore no ground for the finding that the Tax Department should not have applied section 9 \u00a7\u00a7 2 and 3 of the AWIR.","6.3. To the extent that [the first applicant] has invoked Articles 3, 18 and 27 of the 1989 Convention on the Rights of the Child, the following is considered.","6.4. As the Division has previously considered (ruling of 12 March 2014 in case no. 201305121\/1\/A2 (www.raadvanstate.nl), Article 3 of the 1989 Convention has direct effect in so far as its purport is that in all measures concerning children the interests of the child concerned are to be taken into account. As regards the weight to be attributed to the child \u2019 s interest in a concrete case, Article 3 of the 1989 Convention, noting its wording, does not contain a standard which \u2013 without further elaboration in domestic rules and regulations \u2013 can be applied directly by the [domestic] judge. However, in this connection, the administrative judge is to assess whether the administrative body has sufficiently recognised and taken into account the interests of the child and thus has remained within the limits of the law in the exercise of its powers. This test is of a restrained nature.","There exists, noting the circumstances invoked by [the first applicant] in the objection proceedings, no ground for finding that the Tax Department has insufficiently taken into account the interests of the child of [the first applicant].","6.5. With reference to ruling of 5 February 2014 in case no. 201301840\/1\/A2, the Division considers that the decision of 8 May 2013 has not been taken with regard to the daughter of [the first applicant]. It concerns here a financial contribution from the State for the costs of health insurance and the rent of accommodation, to which a child itself cannot have a claim. The parent as the person compulsory insured and the tenant is the beneficiary. It is further considered that Articles 18 and 27 of the 1989 Convention do not contain standards that are suited for direct application by the [domestic] court, since for this they are not sufficiently concrete for this and thus require further elaboration in national rules and regulations.","6.6. The conclusion of the above is that the argument fails.\u201d","No further appeal lay against this ruling.","B. Relevant domestic law and practice","20. An overview of the relevant domestic law and practice relating to admission proceedings and the concept of \u201clawful stay\u201d is set out in the decision given by the Court in the case of Afif v. the Netherlands (no. 60915\/09, \u00a7\u00a7 26-32, 24 May 2011).","21. Article 93 of the Netherlands Constitution provides that the Convention forms part of domestic law. Pursuant to Article 94 of the Constitution, the provisions of the Convention take precedence over domestic statutory rules in case of conflict.","22. Means-tested housing benefit ( huurtoeslag ) is a form of tax credit intended to help persons\/families with a modest income meet housing costs for rented accommodation. A means-tested contribution towards the costs of (compulsory) health insurance ( zorgtoeslag ), also taking the form of a tax credit, is intended to help persons\/families with a modest income to meet costs for compulsory health insurance for adult persons with a modest income. Minor children are insured free of premium under their parents \u2019 (compulsory) health insurance policy.","23. According to the provisions of the Benefit Entitlement (Residence Status) Act, in force as from 1 July 1998, and section 10 of the 2000 Aliens Act ( Vreemdelingenwet 2000 ), the entitlement of aliens to any benefits in kind, facilities and social security benefits issued by decision of a public administrative authority is linked to the question whether they have legal residence in the Netherlands. This is referred to as the linkage principle ( koppelingsbeginsel ). An alien who does not have legal residence in the Netherlands is not entitled to any benefits granted by a decision of a public administrative authority. Derogation is possible if the benefits relate to education for minors, the provision of essential medical care (i.e. prevention of life-threatening situations or loss of essential functions), the prevention of situations that would jeopardise public health or pose a risk to third parties (for instance prevention of infectious diseases, or care related to pregnancy and childbirth), or the provision of legal assistance to the alien concerned. Its aim is, on the one hand, to discourage irregular residence and, on the other, to prevent irregular residents from benefitting from social security facilities allowing them to become rooted in Dutch society and thereby making it increasingly difficult to expel them.","24. Section 9 \u00a7\u00a7 2 and 3 of the AWIR provides as follows:","\u201c2. In case the partner of the person concerned is a foreigner who does not have legal residence within the meaning of section 8 of the 2000 Aliens Act, the person concerned is not entitled to benefits.","3. If, in a means-tested (benefits) regulation, it is stipulated that in addition to the financial capacity of the person concerned and his\/her partner also the financial capacity of co-residents is of relevance for the assessment of an entitlement to or the level of benefits, the person concerned is not entitled to benefits in case a co-resident is an alien not having legal residence within the meaning of section 8 of the 2000 Aliens Act. If the co-resident is an unaccompanied minor alien within the meaning of section 1, part (e), of the Regulation on Provisions for Asylum-Seekers and Other Categories of Aliens ( Regeling verstrekkingen asielzoekers en andere categorie\u00ebn vreemdelingen ), the first sentence shall not apply until the moment on which the right to reception facilities under this scheme ends.\u201d","25. In a ruling given on 22 October 2014 (ECLI :NL:RVS:2014:3788 ) the Administrative Jurisdiction Division addressed the issue of proportionality in connection with the (non-)application of the linkage principle. It held as follows:","\u201c4.1. ...Article 14 of the Convention and Article 1 \u00a7 1 of Protocol No. 12 to the Convention do not prohibit any difference in treatment of similar cases, but only treatment which must be regarded as an making an unjustified distinction. As is clear from the Court \u2019 s settled case-law, an unjustified distinction must be assumed if there is no reasonable and objective justification for the distinction made. This occurs if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Konstantin Markin v. Russia [GC], no. 30078\/06, \u00a7 125, ECHR 2012 (extracts) and Biao v. Denmark, no. 38590\/10, \u00a7 92, 25 March 2014).","4.2. The linkage principle is set out in section 10 \u00a7 1 of the 2000 Aliens Act. This provision is intended to link the right to allowances, services and benefits ( verstrekkingen, voorzieningen en uitkeringen ) financed by collective funds to legal residence in the Netherlands (Parliamentary Documents, Lower House of Parliament ( Kamerstukken II ) 1994\/95, 24 233, nr. 3, pp. 1-2). The premise that illegal aliens cannot claim entitlement to collective provisions is considered by the legislator as principle of the law relating to foreign nationals (Parliamentary Documents, Lower House of Parliament 1995\/96, 24 233, No. 6, pp. 3-4). As is apparent from AWIR \u2019 s enactment (Parliamentary Documents, Lower House of Parliament 2004\/05, 29 764, No. 3, p. 44), the legislator has not only considered the linkage principle applicable to the situation referred to in section 10 \u00a7 1 of the 2000 Aliens Act in which an alien applies for allowances, services and benefits, but in addition has also declared it applicable to the situations referred to in section 9 \u00a7\u00a7 2 and 3 of the AWIR in which a Dutch national applies for benefits and he has a partner or co-resident who has no legal residence in the Netherlands within the meaning of section 8 of the 2000 Aliens Act.","The application of Article 9 \u00a7\u00a7 2 and 3 of the AWIR, like in the present case, leads to a distinction between, on the one hand, a Dutch national who cohabits with a Dutch partner or a foreigner with legal residence under section 8 of the 2000 Aliens Act and, on the other, a Dutch national, like the [appellant], who cohabits with an alien who no longer has legal residence.","4.3. In the opinion of the Administrative Jurisdiction Division there exists, at least in principle, a reasonable and objective justification for making a distinction based on nationality and residence status as follows from both section 10 \u00a7 1 of the 2000 Aliens Act and section 9 \u00a7\u00a7 2 and 3 of the AWIR. As can be derived from the constant case law of the Administrative Jurisdiction Division, this distinction pursues a legitimate aim, taking into account that its application intends to prevent that illegal aliens, by receiving allowances and facilities, are enabled to continue their unlawful residence, acquire a sham appearance of full legality or build up such a strong legal position \u2013 or the appearance thereof \u2013 that after the procedure he appears to be virtually irremovable. The provisions of section 9 \u00a7\u00a7 2 and 3 of the AWIR are in line with this to the extent that these provisions in addition intend to prevent that the partner or co-resident who unlawfully resides in the Netherlands could also benefit from the benefits granted to the Dutch national (decisions of the Administrative Jurisdiction Division of 22 December 2010 in case no. 200909234\/1\/H2 and 29 January 2014 in case no. 201302396\/1\/A2).","4.4. Noting what the [appellant] has submitted, the Administrative Jurisdiction Division has to examine whether the means employed \u2013 termination of the benefits previously granted to the [appellant] \u2013 stands in reasonable proportion to the legitimate aim described above under 4.3. In so doing, the Division puts first that \u2013 as apparent from its founding history \u2013 the linkage principle originally solely intended to create a direct link between the legality of residence of aliens and entitlement to collective facilities of the Netherlands government. This principle has been extended to other situations in which a Dutch national or an alien with legal residence in the Netherlands and who on his\/her own account would be entitled to such facilities are nevertheless denied such facilities on the sole ground that he\/she cohabits with a partner or has a co-resident who has no legal residence. The withholding of such facilities, such as in the instant case the termination of means-tested housing benefit, means-tested child care benefit ( kindgebonden budget ) and means-tested contribution towards the costs of health insurance, to a Dutch national of an alien with legal residence in the Netherlands can in special circumstances in a concrete case be regarded as being in violation of the provisions aforementioned under 4.1, in which case the statutory provision concerned, given what is stipulated in Article 94 of the Constitution, should be set aside.","4.5. In the present case, the [appellant] has lost as from 1 October 2012 entitlement to housing benefit, child care benefit and contribution towards the costs of health insurance, to which he would have been entitled had he been considered as a single parent. The Administrative Jurisdiction Division derives from documents in the case-file that [the appellant \u2019 s partner] arrived in the Netherlands in the beginning of 2011 to study physiotherapy. For this purpose the Deputy Minister of Security and Justice granted her a temporary non-asylum based residence permit ( verblijfsvergunning regulier voor bepaalde tijd ), valid from 1 September 2011 to 1 September 2012. It has not been possible for [the partner] to continue these studies successfully because she has had to undergo a very intensive radiation treatment for thyroid cancer and had also fallen pregnant. During her pregnancy, these health problems aggravated so that, despite her efforts, she failed to pass the necessary exams for continuing her study and thus also to obtain an extension of the residence permit granted to her. This serious and worrying health situation has therefore been a decisive factor which resulted in [the partner] being unable to ensure the continuation of legal residency in the Netherlands.","The Administrative Jurisdiction Division further notes that, when the Tax Administration\/Benefits ( Belastingdienst \/ Toeslagen ) ended the allowances at issue, the child of [the appellant] and [his partner] \u2013 which child has Dutch nationality \u2013 was two months old.","In view of the above-mentioned health situation of [the partner] and considering that a child is vulnerable at that age and, as regards primary care needs, is highly dependent on the parents, it could not in reason be expected from the [appellant] that he, in order to be able to claim as a single parent the allowances needed by him and and child, to ask his [partner] to leave the home. Indeed, it cannot be excluded that the [partner] should have taken the child for providing it with the necessary care, whereas it is plausible that she was not able to do so due to her health situation. In addition, in this the family life will be significantly disturbed whereby the interests of the very young Dutch child are being compromised which is not in accordance with the guarantees set out in Article 8 of the Convention and accepted by the Court ( Domenech Pardo v Spain ( dec. ), no. 55996\/00, 3 May 2001; and Jeunesse v. the Netherlands [GC], no. 12738\/10, \u00a7 109, 3 October 2014 www.echr.coe.int).","4.6. The above-described set of facts and circumstances, in which much weight is attached to the health situation of the [partner], leads the Administrative Jurisdiction Division to the conclusion that in this specific case there are such special circumstance that the Tax Administration\/Benefits in terminating the benefits at issue has deployed a disproportionate means in order to achieve the objective mentioned above under 4.3. This finding is not altered by the fact that the [partner] \u2013 as apparent from the letter of the Tax Administration\/Benefits of 22 October 2013 in the case-file \u2013 had lawful residence again as from 15 July and 5 August 2013 and that as from 1 August 2013 the [appellant] is entitled again to the benefits [at issue]. Indeed this does not alter that the [appellant] has not received any benefits over a considerable period \u2013 eleven months \u2013 of time. Application of section 9 \u00a7\u00a7 1 and 2 of the AWIR is therefore incompatible with the prohibition of discrimination laid down in ...Article 14 read in conjunction with Article 8 of the ECHR and Article 1 \u00a7 1 of Protocol 12 to the Convention. In view of the provisions of Article 94 of the Constitution, the Tax Administration\/Benefits should have refrained from applying section 9 \u00a7\u00a7 2 and 3 of the AWIR.","The argument succeeds.\u201d","26. General welfare benefits for a single person under the Work and Social Assistance Act ( Wet Werk en Bijstand ) amount to 70% of the net statutory minimum wage in the Netherlands. Means-tested benefits, which may be granted in addition to general welfare benefits and only upon a request to be made each fiscal year anew, are intended to alleviate costs of renting accommodation, health care insurance and\/or child care for families\/persons with a modest income. Unlike general welfare benefits, means-tested benefits are not intended to secure a minimum level of subsistence ( bestaansminimum )."],"130":["5.The applicant was born in 1984 and is serving his life sentence in a prison.","6.On 10December2004 the bodies of two women, D. and S., were found in a village \u2013 in D.\u2019s house \u2013 with numerous stab wounds. The prosecutor\u2019s office instituted criminal proceedings on the same day, and over the following days proceeded to interview those of the victims\u2019 neighbours and relatives who might have known something about the incident.","7.On 11 December 2004 the police searched the house of Dor., a resident of same village, and found clothes bearing blood traces.According to the case file, on the same day the applicant, who knew both D. and Dor., was summoned in the context of these proceedings by a prosecutor; however, he did not appear. No other details are available in the file in this regard.","A.The events of 12 December 2004","8.On 12December2004 police officers arrived at the applicant\u2019s home and asked him to go with them to the investigator from the Tatarbunary prosecutor\u2019s office (\u201cthe investigator\u201d). The applicant agreed. On their way they picked up G., an acquaintance of his.","9.From 10 to 11 a.m. on that date, at Tatarbunary police station, the investigator questioned the applicant as a witness in the context of the above-mentioned criminal proceedings. His testimony did not contain any confessions or incriminating remarks and did not provide any specific information relating to the circumstances of the crime. He submitted, interalia, that he did not know who could have committed the murder and that on a number of occasions he had seen D.\u2019s husband communicating with two suspicious men. According to the applicant, the police officers had then taken him and G. to a forest. D.\u2019s husband had been there and had offered them money in exchange for their confession to the murder of D.and S., which had been ordered by Dor. The applicant alleged that they had refused and had been tortured by the police until he had finally agreed to plead guilty to the murder, which he had not in fact committed.","10.A few hours later, at 2.20 p.m., while still at Tatarbunary police station, the applicant made a \u201cstatement of surrender and confession\u201d (\u044f\u0432\u043a\u0430 \u0437 \u043a\u0430\u044f\u0442\u0442\u044f\u043c). This statement commenced by noting that the applicant had been warned of his criminal responsibility if he refused to testify and that he had been advised of his right under Article 63 of the Constitution not to incriminate himself. In his statement, the applicant submitted that he and G. had murdered D. and S. after being incited to do so by Dor., who had wished to take revenge on the women because she believed that one of them had been having an affair with her partner and that the other one had facilitated the start of the affair. At noon on the day of the murder, Dor. had given them knives, which the applicant described in detail, and they had then gone away. At about 6.30 p.m. on that day they had again come to Dor.\u2019s place and then gone to D.\u2019s house. As they had been approaching D.\u2019s house, they had seen her husband leaving home in his car. They had then entered the house carrying the knives given to them by Dor. in their hands. The applicant had entered first and had seen three women in the kitchen \u2013 D. and two others whom he did not know. He had approached one of the women and had stabbed her once or twice until G. had stopped him, saying that she was \u201cfrom our village\u201d and asking him not to harm her. The applicant had then stabbed D. and the third woman to death while G. had watched. The woman he had injured had sat with her face lowered and with her ears covered by her hands. After both of the stabbed women had fallen to the ground the applicant had gone away; G. had remained, talking to the injured woman.","As G. had been leaving the house he had encountered D.\u2019s neighbour. Then G. and the applicant had gone to Dor.\u2019s home, where they had met T., one of her relatives. Dor. had then arrived and had asked them to leave. G. had taken the applicant\u2019s knife from him and had hidden it in one of some old disassembled bikes standing in the backyard of Dor.\u2019s house. For half an hour they had hidden first in a field and then at a farm until, one after the other, they had gone back to Dor.\u2019s house. The applicant had taken off his jacket because it had been covered with blood and had put on a leather one given to him by Dor. Then they had gone to the garden of G\u2019.s home, where, using diesel fuel, the applicant had burned his clothes (a detailed description of which was provided by the applicant), including the jacket given to him by Dor. Thereafter they had gone to the applicant\u2019s home and then to a disco bar. The applicant also submitted that the \u201csweater that I was wearing\u201d was at his home; since 10 December 2004 he had not seen Dor. or T. On 11 December 2004 they had gone to Dor.\u2019s house but she had not been at home; they had not checked whether the knife with which he had committed the murder was still in the place where G. had hidden it.","The statement of surrender and confession closed with a handwritten statement by the applicant to the effect that he had given the above evidence of his own free will, with no duress having been applied to him.","11.From 4.30 p.m. until 6.04 p.m. on the same day, in order to clarify and verify information that the applicant had provided in his confession, the investigator conducted a reconstruction of the crime scene in the presence of attesting witnesses and a specialist on criminal procedure. As can be seen from the video recording of the reconstruction and the relevant verbatim record of this investigative step (which have been provided by the Government to the Court), the investigator invited the applicant \u2013 referring to him as \u201ca suspect\u201d \u2013 to tell him about the circumstances of the crime that he had allegedly committed. He did not inform the applicant of his right to remain silent and to have a lawyer present. The applicant repeated his confession and provided details in reply to the investigator\u2019s questions. He submitted, inter alia, that he had not witnessed the moment at which G. had hidden the knife, but had only been made aware of the hiding place when G. had told him about it. A subsequent inspection of Dor.\u2019s backyard by the participants in the reconstruction did not uncover any knife in the place indicated by the applicant. In G.\u2019s garden, in the presence of G.\u2019s parents, fragments of burned clothes \u2013 which matched the description provided by the applicant \u2013 were found. To the investigator\u2019s question regarding whether the applicant had been forced in any way to give evidence during the reconstruction the applicant replied in the negative. The verbatim record of the reconstruction, as well as the record of the review of the reconstruction video, are both signed by the applicant without any statement or comment.","12.On the same day, at 7.30 p.m., the investigator drew up an arrest report ordering the applicant\u2019s detention as a suspect in the premeditated murder of D. and S. According to the report, the applicant was arrested on the grounds of his statement of surrender and confession, and his right to a lawyer was explained to him. The applicant signed the report and noted that he regretted what he had done. The applicant also signed a separate document explaining his rights as a suspect, including the right to remain silent and to consult a lawyer before his first questioning. When signing the document, the applicant noted that he wished to be legally represented. On the same day, the investigator appointed a legal-aid lawyer, Dym., for the applicant.","B.Subsequent investigation and the applicant\u2019s trial","13.On 13 December 2004 the applicant was questioned as a suspect in the presence of Dym. He repeated his earlier statements, elaborating on them in detail: he did not deny that he had murdered D. and S., but he did deny that he had done so for profit. He also submitted that he not had burned all his clothes, as he had stated before. Specifically, he had not burned his trousers (as they had been brand new) but had given them to G. so that he could wash them; he had hidden the leather jacket given to him by Dor. at his home, behind a sofa. On the same date the police officers inspected his home and, in the presence of the applicant\u2019s mother, seized the jacket. The applicant\u2019s mother confirmed that the jacket did not belong to her son. On an unspecified date, G\u2019s mother testified that on the night of 11 December 2004 her son had asked her to wash his trousers, as they had been dirty. While washing them, she had noticed that the water had become blood-red. Her son explained this by stating that he had been involved in a conflict at a disco bar.","14.On the same date N., the woman whom the applicant had allegedly injured (but not killed) at D.\u2019s home, was questioned. No record of her questioning has been submitted to the Court. The trial-court judgment (seeparagraphs 27 and 28 below) suggests that she provided an account of the events that was similar to that given by the applicant; she submitted, inter alia, that D. had addresed the applicant by name while he had been stabbing her. When shown passport photographs of the applicant and G. she identified the applicant as the person who had inflicted injuries upon her and had killed D. and S.; she identified G. as his accomplice.","15.From 14 December 2004 onwards the applicant, in Dym.\u2019s presence, repeatedly confirmed his confession during different investigative actions (his questioning as a suspect and as accused, the reconstruction of the crime scene, and a confrontation conducted between him and Dor.) and provided details of the murder. When doing so, however, he persistently denied that he had committed the murder for profit. He also stated that he must have been poisoned or placed under some kind of hypnosis by Dor. as in normal circumstances he would have never killed D., as he had known her well and had been on good terms with her.","16.On 17 December 2004 the applicant was examined by a forensic medical expert, who concluded that he had no bodily injuries.","17.On 20 December 2004 criminal proceedings were instituted against the applicant, G. and Dor. in connection with the aggravated murder of D. and S.; on 21 December 2004, in the presence of Dym., he was charged accordingly. After being informed of his rights, the applicant submitted in writing that he wished to be legally represented.","18.On 21 April 2005 two sets of criminal proceedings against the applicant were also instituted in respect of (a) the contract murder of D. and S., committed for profit and with extreme brutality, and (b) the applicant having inflicted bodily injuries on N. Those proceedings were joined with those instituted on 20 December 2004. On the same date the applicant\u2019s charges were amended accordingly.","19.On 27 April 2005 the pre-trial investigation was completed and the applicant and Dym. were given access to the case file, which they then examined in full.","20.On 03 June 2005 the applicant, G. and Dor. were committed to stand trial before the Odessa Regional Court of Appeal (\u201cthe Regional Court\u201d), acting as a first-instance court.","21.On an unspecified date in June 2005, during the preparatory hearing of the Regional Court, the applicant requested that Dym. be replaced by another lawyer, as the former had failed to provide him with qualified legal assistance. In particular, he had acquainted himself with the case file at a different time than that at which he had shown it to the applicant, while in official documents he had stated that they had been shown the file together. His request was allowed and, on 24 June 2005, Sk., a lawyer hired by the applicant\u2019s relatives, was appointed to the applicant.","22.During the trial the applicant denied any involvement in the murder of D. and S. and submitted that his confession had been obtained by means of ill-treatment inflicted by the investigating officers, on the orders of D.\u2019s husband. He provided the account of events given in paragraph 9 above. G. made similar statements.","23.On 25July2005 the Regional Court, sitting as a court of first instance, found the applicant guilty as charged and sentenced him to fifteenyears\u2019 imprisonment.","24.The applicant and Sk. appealed, claiming, inter alia, that the applicant\u2019s voluntary surrender to the police and other self-incriminating statements had been obtained by the police by means of ill-treatment and in breach of his defence rights.The prosecution also appealed, alleging that the gravity of the offence called for the imposition of penalties stricter than those imposed by the first-instance court.","25.On 21March2006 the Supreme Court, sitting as a second-instance court, allowed an appeal lodged by the prosecution (having found that the gravity of the crime imputed to the defendants called for the imposition of more severe penalties) and remitted the case for fresh consideration, having also instructed the Regional Court to verify the allegations made by the defendants.","26.On 11 December 2006 the criminal case was remitted to the prosecutor\u2019s office for further investigation, and on an unspecified date it was sent back to the Regional Court for a new trial.","27.On 15January2008 the Regional Court found the applicant guilty of (i) the premeditated double murder of D. and S., committed in a group, to order and for profit and with particular cruelty, and (ii) causing light bodily injuries to N. It sentenced him to life imprisonment. In doing so, the court referred to various pieces of evidence, which included the identification of the applicant by N. and the fact that she had heard D. addressing the applicant by name when he had been stabbing her; the testimony of the applicant\u2019s and G\u2019s mothers; the results of forensic examinations, which had revealed, inter alia, that blood discovered on the applicant\u2019s sweater had not belonged to him, contrary to his statements, but could have belonged to one of the victims; the statements of witnesses that they had seen the applicant and G. at Dor.\u2019s home during the evening of 10December2004; and the confessions made by the applicant \u201cduring the reconstruction of the crime scene carried out in the presence of his lawyer\u201d and during other investigative actions conducted in the lawyer\u2019s presence.","28.The court noted that it considered the applicant\u2019s denial of his guilt during the trial as constituting an attempt to escape criminal responsibility. It went on to note that the applicant had made self-incriminating statements of his own free will and in the presence of a lawyer and that neither the applicant nor the lawyer had raised any complaint when signing the records of the relevant procedural actions. It furthermore observed that at a different stage of the pre-trial investigation the applicant had given a similar detailed account of events that had tallied with the evidence given by N. The list of items of evidence referred to by the court in this context included the applicant\u2019s voluntary surrender to the police and the \u201crecords of reconstructions of the crime scene\u201d.","29.The Regional Court dismissed the applicant\u2019s allegation of ill\u2011treatment. Having examined the applicant\u2019s medical file and having watched the video recordings of procedural actions undertaken with his participation, it concluded that there was no evidence that the applicant had suffered any physical injuries at the hands of the police. It also observed that in the course of the investigation the applicant had never complained of any ill-treatment but that, in the presence of Dym., he had consistently repeated his confession (including to a forensic psychiatrist), which contained information that had not been known to the police and could only have been known to the perpetrator. The checks conducted by the investigating authorities following his confessions had confirmed the accuracy of his statements.","30.In a cassation appeal to the Supreme Court the applicant stated, interalia, that his initial confessions made on 12 December 2004 had been at the heart of his conviction and that this evidence had been obtained under duress and in the absence of a lawyer. More specifically, no lawyer had been present either during his initial questioning as a witness on 12December 2004 or later on that date, during the reconstruction of the crime scene and when he had made his statement of surrender and confession to the police. His right to remain silent and to legal counsel had not been explained to him until the investigator had obtained, by means of ill-treatment, detailed confessions from him. He furthermore submitted that N. had given false evidence and had been in league with D.\u2019s husband. The applicant\u2019s lawyer, in lodging a separate cassation appeal, also submitted that the applicant had repeated his confession in Dym.\u2019s presence as he had \u201chad no trust in the latter\u201d and had continued to be affected by his ill\u2011treatment.","31.On 12August2008 the Supreme Court upheld the judgment of the Regional Court of 15January2008 (seeparagraph 27 above), with some amendments introduced at the request of the prosecution. It noted, interalia, that the applicant\u2019s guilt had been proved by the statements of N., who had witnessed the crime, and that the accuracy of her statements had been confirmed by other evidence, including by the fact that the applicant had given a similar account of events in his statement of surrender and confession to the police, together with the following statements that he had made. The court furthermore relied on the fact that following the applicant\u2019s initial confessions a sweater bearing traces of the blood of one of the victims had been revealed at his place.","32.As regards the applicant\u2019s complaint concerning the purported breach of his rights of defence, the Supreme Court dismissed them as unfounded. It noted that as soon as the applicant had been detained as a suspect on the basis of his statement of surrender and confession to the police, he was immediately provided with a lawyer, in accordance with the requirements of the domestic law.","33.The Supreme Court also dismissed as unsubstantiated the applicant\u2019s allegation that he had been ill-treated by the police, having observed that no bodily injuries had been found on the applicant when he had been searched on 12 December 2004 and following his forensic medical examination fivedays later (see paragraph 16 above).","34.The applicant was served with a copy of the above-mentioned judgment on 6 October 2008.","C.The applicant\u2019s efforts to obtain certain documents regarding his application to the Court","35.On numerous occasions after the criminal proceedings had been completed the applicant lodged requests with the Regional Court, where the case file was kept, to be provided with copies of his cassation appeals and bills of indictments, as he needed them in connection with his intention to lodge an application with the Court. The Regional Court refused those requests, citing, inter alia, the absence of any legal obligation for it to provide copies of such documents as cassation appeals and noting that the bills of indictments had already been handed over to the applicant.","36.On 11 February 2009 the applicant lodged his present application with the Court.","37.By a letter of 4 June 2009 the Court asked the applicant to submit, inter alia, copies of his appeals in cassation against the judgment of 15January2008 (see paragraph 30 above).","38.On 26 August 2009 the applicant asked the Regional Court to provide him with copies of his appeals in cassation. The applicant referred to the Court\u2019s letter and enclosed a copy thereof. No reply was received by the applicant to this request.","39.In 2010 the applicant again unsuccessfully tried to obtain copies of certain documents in his case file. In his request, he did not mention that he needed them to support his application to the Court.","40.According to an information note from the State Department for the Execution of Sentences provided to the Court by the Government, after his conviction the applicant maintained contact with his mother and a cousin and, on 12 August 2010, was visited by Sk."],"131":["5.The applicant was born in 1977 and lives in Uxbridge.","A.The Facts","6.The applicant claims to have entered the United Kingdom illegally on 18November 2003. She pleaded guilty to offences of cruelty towards her son and was sentenced to twelve months\u2019 imprisonment with a recommendation that she be deported. On 5 August 2008 the Home Secretary served her with notice of intention to make a deportation order. On 8 August 2008 the applicant\u2019s criminal sentence ended and she was thereafter detained under immigration powers from 8 August 2008 to 6July 2011 (2 years, 10 months, 27 days). The present application is the second one made to this Court by the applicant.","7.In her first application the applicant complained about her detention from 8 August 2008 to 28 April 2010. This Court found that during this period, there was a lack of due diligence on the part of the authorities from 19June 2009 to 14 December 2009 (a period of five months and 26 days). Accordingly, it found a violation of Article 5 \u00a7 1 in light of the authorities\u2019 delay in considering the applicant\u2019s further representations in the context of her claim for asylum (see V.M. v. the United Kingdom, no.49734\/12, \u00a799\u2011100, 1 September 2016). The Court did not examine the period of detention after 22 July 2010 in that judgment noting that this was the subject of separate litigation proceedings (see V.M. v. the United Kingdom, cited above, \u00a7 92).","8.The present case concerns that later period of her detention from 22July 2010 to 6 July 2011 (11 months, 14 days). A detailed summary of the facts up to 25 July 2010 is set out in V.M. v. the United Kingdom, cited above, \u00a7\u00a7 16-51.","9.On 25 November 2010 a deportation order was served on the applicant. The applicant subsequently brought a number of legal challenges arguing that the order should be revoked. Removal directions were set for a flight departing on 7 February 2011, but the High Court enjoined the Home Secretary from effecting removal on 4February 2011.","10.On 14 January 2011 an immigration judge refused bail after an oral hearing.","11.On 10 February 2011 Dr A-D, a clinical psychologist, prepared a psychological report on the instruction of the applicant\u2019s representatives. She concluded that the applicant had given a plausible history of suffering physical and sexual abuse at the hands of her uncle; that she suffered from particularly severe post-traumatic stress disorder; that she was not receiving appropriate treatment for her mental health problems in detention; that release would benefit her mental health; and that her deportation was likely to precipitate further suicide attempts. On 16 February 2011 the representatives submitted this report to the Secretary of State.","12.On 7 March 2011 and 17 June 2011 a tribunal judge refused to grant bail to the applicant. On 30 June 2011 Dr A-D provided an addendum report which recommended the applicant\u2019s immediate release. Professor K who had previously examined the applicant (see V.M. v. the United Kingdom cited above, \u00a7\u00a7 20-35) also wrote a further report indicating he now agreed with Dr A-D. The tribunal judge granted bail on 1 July 2011 and the applicant was released on 6 July 2011.","13.Six reviews of the applicant\u2019s detention were written by the applicant\u2019s \u2018caseworker\u2019 between 4 March 2011 and 4 July 2011. Brief reference was made to the report of Dr A-D. Inserted into the recital in each review of the applicant\u2019s protracted immigration history was reference to \"yet another psychiatric report\", which had been \"treated as a further request to revoke\" the deportation order. The reviews identified the applicant\u2019s most recent diagnosis as being that of Dr R on 15 March 2010 (see V.M.v.theUnited Kingdom, cited above, \u00a7 33). In each case the senior officers endorsed the conclusion that the risk of the applicant\u2019s reoffending and absconding outweighed the presumption in favour of release.","B.The applicant\u2019s legal challenge to her detention","14.The applicant initiated judicial review proceedings of the period of her detention from 22 July 2010 to 6 July 2011. The High Court refused her permission to bring judicial review proceedings on 3 April 2012. However, permission was granted by the Court of Appeal to appeal that decision.","15.In its judgment of 17 July 2014, the Court of Appeal found that there had been procedural errors in the reviews of the applicant\u2019s detention but it upheld the decision of the High Court that the challenge should fail. LadyJustice Arden gave the lead opinion:","\u201cConclusion","68.Accordingly, I would dismiss this appeal. The new diagnosis of Dr[A-D] proposed a new treatment for curing her illness but her condition could still be satisfactorily managed in detention. She could still be held in an acceptable stable mental condition in detention under the existing treatment. In any event, there was a risk of reoffending and absconding. While these would have diminished with the passage of time, there still needed to be safeguards if [the applicant] was released into the community and these were not put in place to the satisfaction of the court until 6July 2011 when she was in fact released on bail.\u201d","16.The Court of Appeal refused the applicant permission to appeal its decision but permission was subsequently granted by the Supreme Court. The Supreme Court, in its judgment of 27 April 2016 (R (O) v Secretary of State for the Home Department [2016] UKSC 19), also concluded that some of the applicant\u2019s detention reviews did not refer to available medical evidence where they should have done so. Lord Wilson giving the lead judgment in the Supreme Court summarised the failings in the applicant\u2019s six detention reviews between 4March 2011 and 4 July 2011:","\u201c25.... The reviews","(a)failed to refer to Dr [A-D]\u2019s diagnosis of [the applicant] as suffering from [post-traumatic stress disorder] PTSD:","(b)indeed wrongly stated that the most recent diagnosis of [the applicant]\u2019s mental condition was that of Dr [R];","(c)failed therefore to consider whether [the applicant] could be \u201csatisfactorily managed\u201d at Yarl\u2019s Wood [detention centre] and, even if not, whether there were very exceptional circumstances which nevertheless justified her continued detention.","26.In the above circumstances the Court of Appeal concluded that the Home Secretary had unlawfully failed to apply the policy set out in para 55.10 of the manual when deciding to continue to detain [the applicant] between March and July 2011. This conclusion the Home Secretary now accepts. She does not suggest that the evidence which she would be entitled to file in the event that the claim was permitted to proceed would be likely to throw a different light on it. The defects in the reviews already filed speak for themselves.\u201d","17.He went on to comment:","\u201c34... Realistically [the applicant] accepts that the proper application of the Home Secretary\u2019s policy to her case in the light of the report of Dr [A-D] would not have led to her immediate release in March 2011. She correctly contends that the report should have led the Home Secretary to make inquiries, most of which, judging by the contents of the reviews, seem never to have been made ... At least however, the limited period between March and her release on bail on 6 July 2011 makes one thing clear: even on the dubious assumption that proper application of her policy should in due course have led the Home Secretary to direct [the applicant]\u2019s release, it is unrealistic to consider that the conditions necessary for her release would have been in place prior to 6 July 2011.","35.For the above reasons, in agreement with the Court of Appeal, I regard it as already clear that, although the Home Secretary unlawfully failed to apply her policy under para 55.10 of the manual to [the applicant]\u2019s continued detention between March and July 2011, a lawful application of her policy would not have secured [the applicant]\u2019s release from detention any earlier than the date of her actual release on bail.\u201d","18.Lord Wilson concluded:","\u201c37.... The overall refusal to release [the applicant] ... was procedurally flawed. What however is clear is that, even in the absence of any flaw, no decision to release [the applicant] would in any event have been made prior to 6 July 2011.","...","50.... were [the applicant]\u2019s claim for judicial review permitted to proceed, the result in all likelihood would be a declaration that her detention from 4 March 2011 to 6 July 2011 was unlawful and an award to her of damages in the sum of \u00a31. The Court of Appeal decided that, since such was \u2013 \u201cat most\u201d, so it added \u2013 the likely result of the claim, it was appropriate to uphold the refusal of [the High Court] to grant permission for it to proceed. I agree. By the time of its issue [the applicant] had been released and it could bring her no practical benefit. To the extent that her contentions in these proceeding have deserved to be vindicated, she has secured their vindication in this judgment. I would dismiss the appeal.\u201d","19.The Supreme Court dismissed the appeal on 27 April 2016."],"132":["1. The applicant, Mr Henrikas Daktaras, is a Lithuanian national, who was born in 1957 and is serving a life sentence in Luki\u0161k\u0117s Prison in Vilnius. He was represented by Mr V. Sirvydis, a lawyer practising in Kaunas.","2. The Lithuanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms K. Bubnyt\u0117-\u0160irmen\u0117.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","1. Criminal proceedings against the applicant and the \u201cDaktarai\u201d criminal organisation","(a) The criminal investigation and the applicant \u2019 s conviction","4. In May 2005 prosecutors opened a criminal investigation into crimes committed by a criminal organisation, \u201cDaktarai\u201d. The prosecutors established that between 1990 and 1993 the applicant, together with his accomplices, had created a criminal organisation in Kaunas, armed with firearms and explosives. The crimes committed by that criminal organisation in the following years ranged from attempted murder and murder of a number of people, robberies, unlawful deprivation of liberty, destruction of property, extortion and unlawful possession of firearms. The criminal case was given number 01-2-00015-05 (hereinafter \u201cthe main criminal case\u201d). During the course of the investigation, more and more crimes committed by the applicant and his accomplices were uncovered, so charges in respect of those were joined to the main criminal case.","5. On 19 December 2008 criminal charges were brought against the applicant. He fled Lithuania but was arrested in Bulgaria in September 2009. On the basis of the European Arrest Warrant and decisions by the Bulgarian courts, he was extradited to Lithuania in October 2009.","6. On 26 February 2009 the prosecutor decided to temporarily seize property belonging to the applicant and his family, under Articles 116 and 151 of the Code of Criminal Procedure (see paragraphs 43 and 44 below). The prosecutor noted that the applicant had no property registered in his name except for a motorcycle, whereas the property registered in the name of his mother and his wife included plots of land, houses, apartments and cars. The prosecutor also noted that the \u201cDaktarai\u201d criminal organisation had committed crimes for the motive of personal gain and in order to have a major influence among criminals not only in Kaunas but throughout Lithuania. The decision to seize the applicant \u2019 s property was subsequently upheld by court decisions. The seizure of some of the property that had been registered in the name of the applicant \u2019 s mother was lifted in 2015. The seizure of property registered in the name of the applicant \u2019 s wife, R.D., continued until last year (see paragraphs 24 - 27 below).","7. On 3 March 2009 the applicant \u2019 s wife signed an agreement with a lawyer, K.A., authorising him to represent the applicant in all criminal, civil and administrative proceedings in Lithuania. Afterwards, on 9 March 2009, K.A. provided the Prosecutor General \u2019 s Office with a power of attorney to represent the applicant and asked the prosecution for permission to see the documents of the main criminal case (see paragraph 4 above).","8. On 10 October 2009, having been extradited to Lithuania, the applicant signed a record confirming that he wanted K.A. to defend him in the main criminal case.","9. On 23 November 2009 the prosecutor in charge of the criminal case regarding the \u201cDaktarai\u201d criminal organisation asked a court to authorise the censorship of the applicant \u2019 s correspondence \u2013 letters to and from prison. The prosecutor argued that it was important in order to bring the members of the criminal organisation to justice; it would prevent them from colluding on their testimony, and influencing witnesses or victims. The prosecutor also emphasised that the applicant \u2019 s correspondence with his lawyers, law-enforcement authorities and the European Court of Human Rights would not be censored. It transpires that the prosecutor \u2019 s request was granted.","10. On 31 August 2009 the prosecutor also asked the State Tax Inspectorate to open a tax investigation ( mokestinis patikrinimas ) in respect of the applicant, his wife, a couple of his wife \u2019 s companies, as well as a number of co-accused. The prosecutor noted that he had been investigating the main criminal case regarding very serious crimes committed by a criminal organisation. The case file had led him to conclude that as of 1993 the members of that criminal organisation had been obtaining means through crime and had been carrying out economic and financial activity hiding income and avoiding taxes. They had thus caused substantial harm to the State and its citizens.","11. On 29 October 2009 the prosecutor specified his earlier request. In order to establish the circumstances relevant to the main criminal case, he asked the tax authorities to establish whether the property acquired by the applicant, his wife and his co-accused between 1993 and 2008 had been obtained from lawful sources and whether they had paid all the taxes due.","12. Regarding the proceedings for extradition (see paragraph 5 above), between January and October 2010 the applicant \u2019 s lawyer K.A. challenged the criminal charges against the applicant. In particular, he argued that the scope of those charges, as presented to the applicant after his return to Lithuania, had been wider than the ones listed in the European Arrest Warrant. By a final decision of 15 October 2010 the court dismissed K.A. \u2019 s complaint, pointing out that the prosecution had continued investigating the crimes committed by the applicant and the criminal organisation even after they had issued the European Arrest Warrant, and while the applicant had been hiding in Bulgaria. The applicant remained in pre-trial detention until his conviction.","13. According to the material presented by the parties, during the pre-trial investigation against her husband and the criminal organisation, the applicant \u2019 s wife was questioned as a witness on two occasions. Firstly, on 20 November 2009 she explained that she had been given sums of money totalling about half a million Lithuanian litas (LTL) (approximately 145,000 euros (EUR) ) as a present by the applicant \u2019 s mother and by a distant relative, A.M. As later pointed out by the Court of Appeal in the judgment of 17 January 2017, A.M. was subsequently questioned by the Federal Bureau of Investigation in the United States of America, but he denied having ever given any sum of money to the applicant or to R.D. (see also paragraphs 24 and 25 below).","14. When again questioned as a witness on 13 January 2011, R.D. refused to answer the questions about her and her family \u2019 s financial operations, on the grounds that the main criminal case had been connected to her husband. She stated that, if necessary, she would testify in court.","15. The pre-trial investigation was completed and the indictment in the main criminal case was drawn up on 11 February 2011. The applicant was indicted with establishing and heading the \u201cDaktarai\u201d criminal organisation armed with firearms and explosives, attempted murder and murder of a number of people for motives of personal gain (that is, in order to obtain pecuniary advantage), infliction of injuries, robberies, extortion, fraud, unlawful deprivation of liberty and using fake identity documents (identity card and driver \u2019 s licence which he used in Bulgaria), and unlawful possession of firearms. Fourteen civil claims were submitted by the victims of the criminal organisation \u2019 s crimes, claiming compensation for pecuniary and non-pecuniary damage exceeding in total LTL 8,500,000 (approximately EUR 2,500,000).","16. On 23 June 2011 the Klaip\u0117da branch of the State Tax Inspectorate produced specialist report no. AC6-3, as earlier requested by the prosecutor (see paragraphs 10 and 11 above). The report was based on information provided by various State authorities and institutions, such as the General Prosecutor \u2019 s Office, the Criminal Police Bureau, the tax inspectorates, the Statistics Department and a number of commercial banks in Lithuania. The report also relied on testimony given by the applicant \u2019 s wife to the pre-trial investigation about certain transactions and how she had obtained property (see paragraph 13 above).","17. It transpires from that report that a lawyer, R.G., provided the tax authorities with a certificate ( prie\u0161prie\u0161in\u0117s informacijos surinkimo pa\u017eyma ) showing that between February 1999 and October 2007 the applicant and his wife had paid him sums amounting to LTL 16,700 (approximately EUR 4,800) when he had been providing legal services to the applicant and his son, E.D.","18. In the same report the tax authority also established, this time on the basis of information provided by a commercial bank in Lithuania, that between February 2006 and August 2007 the applicant \u2019 s wife had paid the lawyer K.A. a total of LTL 11,725.","19. The tax authority also established that between 1993 and 2008 the applicant \u2019 s wife had obtained property and had expenditure that exceeded her lawful income by LTL 860,574 (approximately EUR 250,000). She had concluded several fictitious agreements stating that other persons had loaned or gifted her sums of money totalling LTL 454,000 (approximately EUR 130,000) to justify how her family had obtained certain objects belonging jointly to her and the applicant ( bendroji jungtin\u0117 nuosavyb\u0117 ). Lastly, the tax authority established that the applicant \u2019 s wife and her private company owed the State a total of LTL 209,147 (approximately EUR 60,000) in unpaid taxes.","20. On 14 June 2013 the Klaip\u0117da Regional Court found the applicant guilty of more than twenty counts of the aforementioned crimes (see paragraph 15 above). It transpires from the trial court \u2019 s decision that the applicant was defended by the lawyer K.A. When imposing the sentence, the court noted that the applicant had a prior conviction, he had established the \u201cDaktarai\u201d criminal organisation and had clearly been its leader, had been found guilty of seven very serious crimes involving attempted murders, had personally taken part in four murders, and had committed the crimes for the motive of personal gain and to maintain influence in the criminal underworld. His actions showed that crime was his way of life. Accordingly, no sentence less than life imprisonment was appropriate for him. The court also convicted thirteen of the applicant \u2019 s conspirators of similar crimes, and imposed on them sentences of up to twenty years of imprisonment.","21. The Klaip\u0117da Regional Court ordered the applicant, together with some of his co-accused, to pay compensation for the non-pecuniary damage sustained by the victims of their crimes, including murders, in the amount of more than LTL 600,000 (approximately EUR 175,000). The court left some of the civil claims unexamined, granted another civil claim but left its amount to be determined in civil proceedings, and ordered the confiscation from the applicant and his three co-convicted of LTL 73,867 (approximately EUR 21,000) each as unlawfully gained means.","22. By a judgment of 30 June 2015 the Court of Appeal varied the lower court \u2019 s judgment by acquitting the applicant of two counts of murder and accordingly reduced the amount payable by him as compensation for non-pecuniary damage (see the previous paragraph). That being so, given the remaining proven charges, the court left the applicant \u2019 s sentence of life imprisonment unchanged. The Court of Appeal also lifted the temporary seizure of the property belonging to the applicant \u2019 s mother, holding that she could not be equated to a suspect or person charged with a crime as listed in Article 116 of the Code of Criminal Procedure (see paragraph 43 below). As to the property registered in the name of R.D., the Court of Appeal held that property belonging to her and the applicant was joint common property ( bendroji jungtin\u0117 nuosavyb\u0117 ), that is, property acquired after their marriage in the name of one or both spouses, irrespective of whose name that property had been registered in, since R.D. was the applicant \u2019 s wife. At the Court of Appeal, the applicant was represented by the lawyer K.A.","23. By a final ruling of 16 June 2016 the Supreme Court upheld the appellate court \u2019 s verdict in respect of the guilt of the applicant and his co-accused, except for one of the co-accused. The Supreme Court quashed, as not sufficiently reasoned, the part of the Court of Appeal \u2019 s decision by which it had upheld the temporary seizure of property belonging to the applicant \u2019 s wife and remitted that part for fresh examination by the Court of Appeal. During the proceedings at the Supreme Court the applicant was represented by the lawyers K.A. and V.S. The applicant \u2019 s wife, who had the status of a person whose property had been temporarily seized ( asmuo, kurio nuosavyb\u0117s teis\u0117 apribota ), was represented by the lawyer V.S.","(b) Final decisions as to temporary seizure of R.D. \u2019 s property","24. On 27 January 2017 the Court of Appeal noted that part of the judgment by which the applicant had been found guilty of participation in the criminal organisation and its crimes, and by which civil claims had been awarded against him and confiscation had been ordered, had already come into force ( \u012fsiteis\u0117jo ) (see paragraphs 20 - 23 above). Accordingly, the case before it concerned only the seizure of R.D. \u2019 s property, which had been temporarily imposed by the prosecutor on 26 February 2009 and had continued throughout the criminal proceedings against her husband and the other members of the \u201cDaktarai\u201d criminal organisation. The Court of Appeal noted that although the case file contained a contract of division of property concluded by the applicant and R.D. in 1995, other documents showed that they had continued to treat their property as joint common property and managed it together. It was noteworthy that even before the date on which the property division contract had been concluded, the applicant had already committed a number of crimes, such as attempted murder, murder and extortion of property, which attracted the confiscation of property as a penalty and could also have led to substantial claims. Accordingly, the formal division of property could be seen as an attempt by the applicant to avoid any undesirable consequences should his crimes be unveiled. The Court of Appeal also stated that R.D. \u201ccould not have not known ( negal\u0117jo ne\u017einoti )\u201d about her husband \u2019 s unlawful activities. In a similar vein, at the Court of Appeal hearing the applicant had confessed to having been involved in the illegal trade of spirits, which, in the court \u2019 s view, had clearly provided him with a significant income. It was also pertinent that by a final court judgment the applicant had also been found guilty of crimes which he had committed while held in detention. For example, he had organised and planned the murder of two individuals, and had extorted property from others. Having examined the tax authority \u2019 s report of 23 June 2001 (see paragraphs 16 - 19 above), the Court of Appeal established that there was a clear disproportion between the income of the applicant and his wife and the property they owned. It followed that the temporary seizure of R.D. \u2019 s property had been lawful.","25. Lastly, the Court of Appeal pointed out that no charges regarding illicit enrichment had been brought against either the applicant or his wife (see paragraph 47 below). The temporary seizure of their property was related only to the crimes which the applicant had committed and for which he had been convicted, and only in order to secure the payment of civil claims and the confiscation of property.","26. By a final ruling of 18 January 2018 the Supreme Court upheld the Court of Appeal \u2019 s finding that in 1995 the applicant and his wife had concluded a fictitious agreement on the division of property, because the aim of that contract had been not to divide the property but to avoid any possible penalties for the applicant \u2019 s criminal activity. Accordingly, the Court of Appeal had been correct in upholding the decision to seize R.D. \u2019 s property, since to do otherwise would have risked merely convicting the applicant without protecting the civil plaintiffs \u2019 right to compensation. The Supreme Court also pointed out that the Court of Appeal \u2019 s decision had not affected R.D. \u2019 s legal status, except for the finding that the property which de jure had been hers had in fact been the common property of both spouses. Accordingly, even though the Court of Appeal had noted that R.D. \u201ccould not have not known\u201d that her husband \u2019 s behaviour had been against the law, this did not mean that the actions of R.D., whose property had been seized, had been assessed in the light of any kind of legal liability. All the more so as it was clear that the seizure of the property that belonged both to the applicant and R.D. had been applied precisely for the purpose of compensating the victims for damage and for guaranteeing the confiscation of property to the value of LTL 73,867 (approximately EUR 21,000). The fact that R.D. had been ordered to pay taxes on certain income (see paragraphs 16 and 19 above) had nothing to do with the principle of non bis in idem.","27. That being so, the Supreme Court found that some of the property had been seized unnecessarily, since the total value of the seized property had exceeded the civil claims and the confiscation order. Accordingly, the Supreme Court quashed the decision to seize the applicant \u2019 s house and two cars, but left the remaining parts of the Klaip\u0117da Regional Court \u2019 s judgment of 14 June 2013 and the Court of Appeal ruling of 27 January 2017 unchanged (see paragraphs 21 and 24 above).","(c) Search of the applicant \u2019 s and his wife \u2019 s home and complaint lodged by applicant \u2019 s lawyer K.A. alleging a breach of professional secret","28. Within the main criminal proceedings against the applicant and the \u201cDaktarai\u201d criminal organisation (see paragraph 4 above), on 18 December 2008 the Vilnius City First District Court granted a prosecutor \u2019 s request to authorise a search of the applicant \u2019 s home, owned by the applicant \u2019 s wife and situated in U\u017elied\u017eiai village, Kaunas county. The court pointed out that the criminal case concerned activities of a criminal organisation which was suspected of having committed serious crimes. There was reason to believe that evidence such as notes, photographs, firearms, explosives, documents and other objects proving the applicant \u2019 s criminal activity, his connections with the \u201cDaktarai\u201d criminal organisation and other organised criminal groups in Kaunas could be found in the applicant \u2019 s home.","29. The search was conducted on 6 February 2009. As noted by the authorities in January 2010, objects pertinent to the criminal investigation regarding the criminal organisation had been taken during the search. In addition, the authorities also found and took documents about the applicant \u2019 s and his family \u2019 s financial dealings, so that the source of income could be established. After those documents had been examined, the authorities wished to return them to the applicant \u2019 s wife. However, between November 2009 and January 2010 they were not successful, because she refused to take the documents from the authorities.","30. On 28 October 2009 the applicant \u2019 s lawyer K.A. lodged a complaint that during the search of 6 February 2009 documents had been taken from the applicant \u2019 s and his wife \u2019 s home. He claimed that those documents included his reports about services provided to his client, as well as about bank transfers made in order to pay him. The lawyer asserted that those documents had been protected by lawyer-client confidentiality. He relied on Article 46 of the Law on the Bar (see paragraph 49 below).","31. The lawyer \u2019 s complaint was dismissed first by the prosecutor overseeing the main criminal case, and then by a higher prosecutor. Both prosecutors noted that the case was about a criminal organisation that was suspected of having committed serious crimes in order to obtain property, and that the law allowed the confiscation of property for such crimes. For that reason, information about the financial dealings of the suspects and their family members and the source of their income was being collected during the criminal investigation. The prosecutors acknowledged that, during the search of 6 February 2009, K.A. \u2019 s reports to the applicant \u2019 s wife about the services provided by him had been seized. Nonetheless, at that time K.A. had not been representing the applicant in main criminal case no. 01-2-00015-05. The reports thus had been about the services provided in other criminal case(s). Furthermore, that information did not fall within the sphere of professional secret, because it only included payments to the lawyer, and not the content of the services provided. It merely concerned the lawyer \u2019 s financial report to the client. Moreover, those documents had been obtained not during a search of the lawyer \u2019 s office, but during the search of the applicant \u2019 s home. Lastly, the search had been authorised by a court in order to obtain evidence.","32. By a final ruling of 12 January 2010, the Vilnius City First District Court dismissed the lawyer \u2019 s complaint as unfounded. The court noted that the main criminal case no. 01-2-00015-05 concerned acts committed by the \u201cDaktarai\u201d criminal organisation. It was necessary to gather data about the applicant \u2019 s financial transactions to establish whether his income had come from lawful sources. The court also pointed out that at the time the search had been performed, K.A. had not yet been appointed to represent the applicant in the aforementioned criminal case. No procedural documents drafted by K.A. in that criminal case had been gathered during that search, nor had there been any examination of the extent of the services he had provided to the applicant or the fees paid by the latter. The investigators could not have foreseen that K.A. would later become the applicant \u2019 s lawyer in the main criminal case. Lastly, the guarantees listed in Article 46 of the Law on the Bar applied when a search was performed on an advocate \u2019 s premises, but not when searching his client \u2019 s home.","2. Criminal proceedings against the applicant, his wife and his mother for influencing a witness and a victim","33. On 4 January 2006 the applicant \u2019 s wife signed a legal assistance agreement with a law firm, \u201cAdversus\u201d, represented by the lawyer K.A. The law firm and K.A. personally agreed to represent the applicant before all State institutions in Lithuania in connection with \u201cthat criminal case\u201d against the applicant (\u201c \u0161ioje baud\u017eiamojoje byloje \u201d), without specifying the number of the criminal case. The agreement specified that it was confidential and set out the manner in which the lawyer \u2019 s services should be paid for.","34. By a judgment of 8 December 2006 the Vilnius Regional Court found the applicant guilty of one count of extortion of property belonging to G.K. and of attempting to influence G.K. and his wife by persuading them not to testify against him. The applicant was sentenced to two years and nine months of imprisonment, and ordered to pay LTL 20,000 (approximately EUR 5,800) to each of the victims as compensation for non \u2011 pecuniary damage.","35. By the same judgment the applicant \u2019 s mother, J.D., was found guilty of attempting to influence G.K. and his wife. She was sentenced to a fine of LTL 5,000 (approximately EUR 1,500). Although the applicant \u2019 s wife had been charged with influencing the victim, G.K., the trial court acquitted her, holding that there was insufficient evidence against her. It transpires from the Vilnius Regional Court \u2019 s decision that the applicant, his wife and his mother were represented by the lawyers K.A. and R.G.","36. The prosecutor lodged an appeal against the decision to acquit the applicant \u2019 s wife, arguing that the trial court had erred in acquitting her because her actions \u2013 \u201cinnuendoes and hidden threats ( u\u017euominos ir pasl\u0117pti gr\u0105sinimai )\u201d voiced to G.K. \u2013 had been sufficient to find her guilty. For their part, the victims and civil claimants, G.K. and his wife, argued that the civil damages awarded had been too low, also taking into account the emotional impact on them. Because of the crime, they had had to take part in the witness protection programme, could no longer contact their family members and friends, and had to hide where they lived. All of that had taken an emotional toll on them and on their son.","37. By a judgment of 29 March 2007 the Court of Appeal essentially upheld the trial court \u2019 s judgment. The applicant and his wife were represented by lawyers K.A. and R.G. The appellate court lowered the award for non-pecuniary damage payable by the applicant to G.K. and his wife to LTL 7,000 (EUR 2,000) and LTL 2,000 (EUR 600), respectively, finding that the applicant \u2019 s actions when extorting the property had not been \u201cintensive\u201d, and that he had been directly threatening only G.K. but had not been in contact with his wife.","38. By a final ruling of 30 October 2007 the Supreme Court upheld the Court of Appeal \u2019 s judgment. At that stage of the proceedings the applicant and his wife were represented by lawyers K.A. and R.G.","3. Administrative proceedings regarding the tax authorities \u2019 order that the applicant \u2019 s lawyer K.A. provide certain financial information","39. On 16 June 2010 the State Tax Inspectorate opened an investigation into the financial activities of K.A., as a tax payer, and asked him ( mokes\u010di\u0173 administratoriaus nurodymas ) to provide information about his financial transactions \u2013 payments made to him by physical persons \u2013 for the period September 2005 to December 2008. On 29 June 2010 K.A. informed the tax authorities that he would not be able to provide that information for objective reasons (see paragraph below). The tax authorities then asked the banks in Lithuania to provide information about the lawyer \u2019 s transactions. On the basis of the information provided by the banks, the tax authorities established that the applicant \u2019 s wife had paid K.A. a total of LTL 11,725 (EUR 3,400) in five payments between February 2006 and August 2007.","40. In the meantime, K.A. challenged the tax authorities \u2019 request ( nurodymas ) before the administrative courts. He pointed out that he had been the applicant \u2019 s lawyer in the main criminal case and that, to his knowledge, during the search of his client \u2019 s home his reports to his client had been seized (see paragraphs 29 - 32 above). It was on the basis of those seized documents that the State Tax Inspectorate had been ordered to inspect the lawyer \u2019 s accounts in order to establish his client \u2019 s expenditure. The lawyer argued that he could not provide such information because it could be used in the main criminal case against his client. He also submitted that the tax authorities \u2019 request had caused a conflict of interest: if a lawyer were to provide the authorities with information that was detrimental to his client \u2019 s interest, the client would then refuse the services of that lawyer. The lawyer relied on Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention.","41. By a decision of 22 November 2010 the Vilnius Regional Administrative Court dismissed K.A. \u2019 s complaint. The court agreed with K.A. that the reason to inspect his accounts had been to obtain information about the payments made by the applicant or on his behalf by his wife. That being so, the court noted that the lawyer had not provided the information he had been asked for \u2013 such data had eventually been obtained from the banks. Moreover, the lawyer had not lodged a complaint about the carrying out of a tax investigation of his accounts, nor about its results. The court stressed that the consequences on the lawyer \u2019 s relationship with his client, if any, could have been caused not by the request to submit information, but by the tax investigation itself. It had been explained to the lawyer, however, [by the tax authority] that it was possible not to provide the requested information, and he had used that opportunity. After such refusal, the tax authority, for its part, had no longer insisted that the lawyer provide the requested information. The court lastly held that since the lawyer had not been challenging the tax investigation, as such, there was no reason to examine the lawfulness of the request to provide information vis-\u00e0-vis Article 6 of the Convention.","42. By a final decision of 20 October 2011 the Supreme Administrative Court dismissed K.A. \u2019 s appeal and discontinued the case. The court held that the request to provide information had not had any legal consequences and therefore could not be the subject of a dispute to be examined in a court. The request had not constituted a final decision regarding a certain question; it had only been an intermediary step in tax proceedings.","B. Relevant domestic law and practice","1. As to the seizure and confiscation of property during criminal proceedings","43. The Code of Criminal Procedure in force at the relevant time provided that during criminal proceedings a prosecutor had to take steps to safeguard a civil claim by finding property belonging to a suspect or the accused and temporarily seizing that property (Article 116).","44. The Code of Criminal Procedure also provided:","Article 151. Temporary seizure of property ( Laikinas nuosavyb\u0117s teis\u0117s apribojimas )","\u201c1. With a view to securing a civil claim or the possible confiscation of property, a prosecutor may impose the temporary seizure of property belonging to a suspect or ... other physical persons in possession of property received or acquired through criminal means ... \u201d","45. On 13 December 1993 the Constitutional Court delivered a ruling in response to the Supreme Court \u2019 s question whether the supplementary penalty of confiscation of property, as foreseen by the Criminal Code valid at the material time, was in compliance with the Constitution, particularly its Article 23, which protects the right to property. The Constitutional Court found in the affirmative. It held:","\u201cThe criminality data of recent years show that the threat to society is growing not only due to the rate of crime but also due to its structure. The property of residents is threatened with growing frequency, with more than two-thirds of crimes being of such type. The structure and dynamics of criminality may not influence [the answer] to the question whether one or another punishment is in conformity with the provisions established in the Constitution. However, an assessment of the situation and the indirect influence on this phenomenon by established punishment is imperative.","...","... by confiscating property, as a supplementary criminal penalty, one seeks to exert influence on the motivation for criminal behaviour that causes crimes for personal gain to be committed. The purpose of a supplementary penalty is to further individualise the punishment, to expand the limits of its application by allowing [more] measures to be applied to the criminal, taking into consideration the nature and degree of the crime committed and the personality of the culprit. By combining criminal legal measures in such a way, their effectiveness could be increased and a basis created for seeking the goals of punishment as much as possible.","The arguments in favour of denying a supplementary penalty \u2013 confiscation of property \u2013 are not well founded. It is maintained that, following the confiscation of property, a person is left with no property. [However], under the relevant laws, not all the property is confiscated. The property that may not be confiscated is listed in Article 36 of the Criminal Code. Furthermore, in each criminal case the court, by individualising the penalty imposed on the convicted person, takes into consideration the nature of the crime, how dangerous the crime was, the culprit \u2019 s personality and other [relevant] circumstances of the case. The court also has a possibility of taking into account what property the person on trial has and the sources of the property acquired, and of evaluating whether the property of the convicted person is linked to the crime committed as well as to other circumstances. On that basis, the court may impose confiscation of all property or of separate items.","When arguing that confiscation of property should not be permitted, an argument is used that the confiscation of the convicted person \u2019 s property may have an influence on the pecuniary interests of that person \u2019 s family or those of other persons. It must be noted, however, that only the property belonging to the convicted person would be confiscated. Moreover, according to the existing system of [criminal] penalties, most of the punishments have an impact not only on the convicted person \u2019 s interests, because if a heavy fine or long-term imprisonment were imposed, this would also have no less of a pecuniary impact on the family members than confiscation of some of the property or of some of the items.","When evaluating the confiscation of property as a supplementary penalty, it should be noted that the United Nations ... have endorsed the Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), point 8.2 of which recommends, besides other penalties, applying confiscation of property or deprivation of property rights.","In sum, it can be stated that confiscation of property is one of legal means with the help of which attempts are made to put a stop to crimes for personal gain that threaten other people \u2019 s property, which is protected by the Constitution. ... \u201d","46. As concerns confiscation of property, at the material time the new Criminal Code provided:","Article 72. Confiscation of Property","1. Confiscation of property shall be the compulsory uncompensated taking into the ownership of the State of any form of property subject to confiscation and held by the offender, his accomplice or other persons.","2. Confiscation of property shall be applicable only in respect of the property used as an instrument or a means to commit a crime or as the result of a criminal act. A court must confiscate:","1) the money or other items of material value delivered to the offender or his accomplice for the purpose of commission of the criminal act;","2) the money and other items of material value used in the commission of the criminal act;","3) the money and other items of material value obtained as a result of the commission of the criminal act.","3. Property transferred to other natural or legal persons shall be confiscated regardless of whether or not those persons are subject to criminal liability, where:","1) the property has been transferred to them for the purpose of committing a criminal act;","2) when acquiring the property, they were aware, or ought to have been aware and could have been aware that this property, money or the valuables newly acquired by means thereof have been gained by means of a criminal act.","4. Property transferred to other natural or legal persons may be confiscated regardless of whether or not the person who transferred the property is subject to criminal liability, where this person ought to and could have been aware that that property may be used for the commission of a serious or grave crime.","...","7. When ordering confiscation of property, a court must specify the items subject to confiscation or the monetary value of the property subject to confiscation.\u201d","47. On 11 December 2010 the new Criminal Code was supplemented by Article 189 1 :","Article 189 1. Illicit enrichment","\u201c1. Anyone who holds by right of ownership property the value of which exceeds 500 BSA, while being aware or having to be and likely to be aware that such property could not have been acquired with legitimate income,","shall be punished by a fine, or by arrest, or by deprivation of liberty for up to four years.","2. Anyone who takes over the property referred to in paragraph 1 of this Article from third parties shall be relieved of criminal liability for illicit enrichment where he\/she gives notice thereof to the law-enforcement authorities before he\/she is served notice of suspicion and where he\/she actively cooperates in determining the origin of the property.","3. Legal persons shall also be held liable for the acts provided for in this Article.\u201d","48. In a ruling of 15 March 2017 the Constitutional Court held that Article 189 1 \u00a7 1 of the new Criminal Code, which establishes criminal liability for illicit enrichment, was in compliance with the Constitution. Even so, the Constitutional Court held that criminal liability may not be applied retroactively. The court also pointed out that although the manner in which the right of ownership is acquired may vary, it may not be in conflict with the requirements that stem from the Constitution, inter alia, with the principles of justice and good faith. The Constitutional Court also held:","\u201c ... striving for an open, just and harmonious civil society and a State under the rule of law ... implies that it is obligatory to try to safeguard each person and society as a whole against criminal attempts. It is one of the duties of the State and one of its priority tasks to ensure such safety. The Constitution consolidates such a concept of a democratic State whereby the State not only seeks to protect and defend its people and society from crimes and other dangerous violations of the law, but also is able to do this effectively. In a State under the rule of law, the general principle of law whereby no one may enjoy profit from a violation of law committed by him\/her must not be disregarded. ... When interpreting the content of the constitutional principle of a State under the rule of law, the Constitutional Court has also held that the measures established and applied by the State for the prevention of crimes, as well as for restricting and reducing crime, must be effective.\u201d [References to earlier rulings of the Constitutional Court omitted].","2. As to lawyer-client confidentiality","49. The Law on the Bar ( Advokat\u016bros \u012fstatymas ) in force at the relevant time read as follows:","Article 46. Guarantees in respect of an advocate \u2019 s activities","\u201c1. An advocate may not be summoned as a witness or to give explanations as to circumstances which have come to his knowledge in the pursuit of his professional activities.","2. In the pursuit of their professional activities, advocates cannot be identified with their clients and their cases.","3. It shall be prohibited to examine, inspect or take away the advocate \u2019 s documents or files containing information related to his professional activities, or to examine postal items, wiretap telephone conversations, or monitor any other information transmitted over telecommunications networks and other communications or actions, except when the advocate is suspected or accused of a criminal act. In that case permission shall cover only the documents related to the allegations or charges made against the advocate.","4. A search or seizure ( po\u0117mis ) at the place of practice or residence or motor vehicle of an advocate entered in the List of Practising Advocates of Lithuania, a body search, an examination, inspection or seizure of documents and postal items may be conducted only in the presence of a member of the Council of the Lithuanian Bar Association or an advocate authorised by the Lithuanian Bar Association. The Lithuanian Bar Association must approve a list of advocates authorised by the Lithuanian Bar Association and submit it to the institutions concerned. The member of the Council of the Lithuanian Bar Association or the advocate authorised by the Lithuanian Bar Association present during such actions must ensure that documents not related to the allegations or charges made against the advocate are not taken.","5. It shall be prohibited to gain access, overtly or covertly, to information subject to an advocate \u2019 s professional secret and to use it as evidence. The advocate \u2019 s professional secret shall cover the fact that the advocate had been contacted\/consulted ( kreipimosi \u012f advokat\u0105 faktas ), the terms of the contract with the client, the information and data provided by the client, the nature of any consultations, and information collected by the advocate by order of the client.","6. The Lithuanian Bar Association must be notified if the advocate becomes a suspect or a defendant or if procedural actions are taken against him.\u201d","C. Relevant international law","50. In 1990 the Council of Europe adopted the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (hereinafter \u2013 \u201cthe 1990 Convention\u201d), which entered into force in respect of Lithuania on 1 October 1995.","51. As stated in paragraph 10 of the Explanatory Report to the 1990 Convention:","\u201c ... the Convention seeks to provide a complete set of rules, covering all the stages of the procedure from the first investigations to the imposition and enforcement of confiscation sentences and to allow for flexible but effective mechanisms of international cooperation to the widest extent possible in order to deprive criminals of the instruments and fruits of their illegal activities\u201d.","52. Insofar as relevant, the 1990 Convention reads as follows:","Article 2 \u2013 Confiscation measures","\u201c1. Each Party shall adopt such legislative and other measures as may be necessary to enable it to confiscate instrumentalities and proceeds or property the value of which corresponds to such proceeds.\u201d","Article 3 \u2013 Investigative and provisional measures","\u201cEach Party shall adopt such legislative and other measures as may be necessary to enable it to identify and trace property which is liable to confiscation pursuant to Article 2, paragraph 1, and to prevent any dealing in, transfer or disposal of such property.\u201d","Article 4 \u2013 Special investigative powers and techniques","\u201c1. Each Party shall adopt such legislative and other measures as may be necessary to empower its courts or other competent authorities to order that bank, financial or commercial records be made available or be seized in order to carry out the actions referred to in Articles 2 and 3. A Party shall not decline to act under the provisions of this article on grounds of bank secrecy.","2. Each Party shall consider adopting such legislative and other measures as may be necessary to enable it to use special investigative techniques facilitating the identification and tracing of proceeds and the gathering of evidence related thereto. Such techniques may include monitoring orders, observation, interception of telecommunications, access to computer systems and orders to produce specific documents.\u201d","Article 5 \u2013 Legal remedies","\u201cEach Party shall adopt such legislative and other measures as may be necessary to ensure that interested parties affected by measures under Articles 2 and 3 shall have effective legal remedies in order to preserve their rights.\u201d","Article 6 \u2013 Laundering offences","\u201c1. Each Party shall adopt such legislative and other measures as may be necessary to establish as offences under its domestic law, when committed intentionally:","a) the conversion or transfer of property, knowing that such property is proceeds, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of the predicate offence to evade the legal consequences of his actions;","b) the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of, property, knowing that such property is proceeds;","and, subject to its constitutional principles and the basic concepts of its legal system;","c) the acquisition, possession or use of property, knowing, at the time of receipt, that such property was proceeds;","d) participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article.\u201d","53. The 1990 Convention was followed up by the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, which entered into force on 1 May 2008 (hereinafter \u2013 \u201cthe 2008 Convention\u201d). Lithuania signed the Convention on 28 October 2015 but has not yet ratified it. The 2008 Convention provides, in Article 4, that each party should consider adopting such legislative and other measures as may be necessary to enable it to use special investigative techniques facilitating the identification and tracing of proceeds and the gathering of evidence related thereto. The Convention also points to the fact that quick access to financial information or information on assets held by criminal organisations is the key to successful preventive and repressive measures, and, ultimately, is the best way to stop them.","54. On the law and practice regarding confiscation of property in the member States of the Council of Europe, also see Silickien\u0117 v. Lithuania (no. 20496\/02, \u00a7\u00a7 33-35, 10 April 2012)."],"133":["1. The applicant, Mr Pavel Yevgenyevich Famulyak, is a Ukrainian national who was born in 1980 and lives in Lviv. He was represented before the Court by Ms K.O. Bilevych, a lawyer practising in Lviv.","2. The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, Mr I. Lishchyna.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. In the early hours of the morning of 1 July 2007 a certain Mr A.B.K. (\u201cthe victim\u201d) was attacked and robbed. He sustained numerous injuries including a fractured skull. A team of three police officers instigated an investigation. According to their testimony as given at the applicant \u2019 s trial (see paragraph 15 below), they visited the victim in hospital and found that he had a piece of paper with a telephone number on it which, it transpired, belonged to a certain Mr B., who subsequently became the applicant \u2019 s co \u2011 defendant.","5. On 5 July 2007 the officers arrested the applicant and B. The applicant submitted copies of police reports documenting their arrest on that date to the Court. A mobile phone was seized from the applicant and a silver neck chain from B. The domestic courts subsequently established that those items had been taken from the victim.","6. On the same day the applicant gave a statement to the police in which he explained that he had spent time with the victim and B. on the night of the attack. He denied any wrongdoing on either his own part or on the part of B. and stated he had seen two strangers near the victim around the time of the attack. A written statement signed by the applicant contained a note to the effect that, before making the statement, he had been warned of his constitutional right not to make self-incriminating statements (see paragraph 26 below). He maintained the account given in that statement throughout the subsequent proceedings, including at the trial.","7. On the same day B. also gave a statement to the police in which he explained that he had spent time with the victim and the applicant on the night of the attack. He denied any wrongdoing either on his own part or on the part of the applicant. However, he added that there had been a short period of time when both the applicant and the victim had been out of his sight and, when the applicant had rejoined B., he had stated that he had seen the victim being attacked by two strangers. It appears that B. largely maintained that account throughout the subsequent proceedings.","8. On 6 July 2007 the applicant \u2019 s arrest was recorded and his rights, including his right to a lawyer and the right to remain silent, were explained to him. He signed a statement waiving those rights and gave a statement reaffirming his previous declarations.","9. On 9 July 2007 the Lviv Shevchenkivsky District Court (\u201cthe District Court\u201d) remanded the applicant in custody. On the same day, at the applicant \u2019 s request, a defence lawyer was engaged.","10. On 17 July 2007 the applicant was charged with aggravated robbery and was questioned in the presence of his lawyer. He reaffirmed his previous statements.","11. In the course of the investigation the victim identified the applicant and his co-defendant as the perpetrators in a photographic identification parade and identified the mobile phone and neck chain that had been found on them as his own. The co-defendant \u2019 s girlfriend was questioned concerning the neck chain. She stated that she had given the co-defendant a neck chain as a gift. However, when shown three neck chains, including the one found on him on his arrest, she did not recognise it and stated that its length did not match her gift.","12. The applicant and his co-defendant stood trial before the District Court (hereinafter also \u201cthe trial court\u201d), sitting in a single-judge formation, on charges of robbery combined with life-threatening violence.","13. The victim testified at the trial and was cross-examined by the parties, including the applicant \u2019 s lawyer. He explained in detail how the applicant and the co-defendant had attacked and robbed him.","14. The victim \u2019 s wife gave evidence to the effect that the victim had been attacked and his silver neck chain and mobile phone had been stolen.","15. The three police officers gave evidence describing the beginnings of the investigation, the defendants \u2019 arrest and the items found in their possession, as set out in paragraphs 4 and 5 above.","16. It appears that one of the key points of contention at the trial was the provenance of the neck chain found on the co-defendant. The prosecution asserted that that neck chain had been taken from the victim, the defence that it belonged to B. During an examination at the trial, the co-defendant \u2019 s girlfriend stated that, even though in the course of the pre-trial investigation she had failed to identify the neck chain seized from the co-defendant as her gift (see paragraph 11 above), she could have been mistaken.","17. On 28 December 2007 the trial court convicted the applicant and his co-defendant as charged. It sentenced the applicant to nine years \u2019 imprisonment \u2013 to run from 5 July 2007, when the applicant had in fact been taken into custody \u2013 together with confiscation of his property. The trial court relied, in particular, on","(i) the testimony given in court by the victim, his wife, the officers and the co-defendant \u2019 s girlfriend (see paragraphs 13\u201316 above);","(ii) the fact that the victim \u2019 s mobile phone had been found in the applicant \u2019 s possession;","(iii) the results of the identification of the seized items by the victim (see paragraph 16 above); and","(iv) the results of forensic medical and psychiatric examinations of the victim, the former showing numerous injuries and the latter concluding that, despite his cerebral injury, the victim \u2019 s cognitive function was not so impaired as to prevent him from being able to recall the events and to testify about them.","18. On 8 July 2008 the Lviv Regional Court of Appeal (\u201cthe Court of Appeal\u201d) quashed the judgment and remitted it for retrial to the District Court, before a different judge. By way of reasoning the Court of Appeal stated that the trial court \u2019 s decision had contained no explanation as to why the court believed the victim and not the defendants. The trial court had not cited any probative evidence to support its conclusion as to the amount of money stolen from the victim. In addition, the evidence had shown that the applicant had thrown a brick at the victim and hit him with a bottle. However, the trial court had not set out those elements in describing the charges. Finally, the trial court had not specified whether all, or only part, of the defendants \u2019 property was to be confiscated.","19. The case was retried before the District Court, with a new single judge sitting on the bench. All witness evidence given in the course of the first trial was recorded in the trial transcript and available to the new judge who relied on it in part (see paragraph 23 below).","20. In the course of the retrial, from at least September 2008, the trial court made considerable efforts to summon the victim, who failed to respond to repeated summons. The court repeatedly solicited the assistance of the police in finding the victim.","On 23 March 2009 the victim finally appeared at the trial. At the beginning of the hearing on that date the court decided, on the application of the defence, that an audio recording should be made of the proceedings. At some point during the hearing the electricity cut out at the courthouse and the defence agreed to proceed with the hearing in the absence of the ability to make the audio recording.","The victim was then examined by the trial judge, to whom he stated that he reaffirmed his previous testimony, that he knew the defendants and that they were the persons who had attacked him. He answered a number of questions concerning the details of the events and the physical evidence (the telephone and the neck chain) from the trial judge and the prosecutor. He also submitted to the court a document showing his medical history, to which the defence objected.","The co-defendant \u2019 s lawyer then started his cross-examination of the victim. The lawyer apparently believed that the trial judge had interfered with his cross-examination and asked that an audio recording be made of the subsequent proceedings. As there was still no electricity at the courthouse, the court asked the parties whether the hearing should be adjourned. The defence, including the applicant and his lawyer, insisted that the hearing be adjourned and the victim be summoned to the next hearing.","The court adjourned the hearing, scheduling the next hearing for 6 April 2009.","21. The victim, despite having been repeatedly summoned, failed to appear for the subsequent hearings. Likewise, the three police officers were summoned but repeatedly failed to appear.","22. On 10 June 2009 the trial court again convicted the applicant and his co-defendant as charged, sentencing the applicant to the same term of imprisonment, again to run from 5 July 2007, and clarifying, in line with the Court of Appeal \u2019 s instructions, that the confiscation concerned all of his property. Also as instructed, it added to the description of the charges by referring to the applicant throwing a brick at the victim, and hitting him with a bottle.","23. In addition to the evidence relied on in the first judgment (see paragraph 17 above), the trial court also referred to the co-defendant \u2019 s original statement to the police, made on 5 July 2007 (see paragraph 7 above), and to the fact that, in the course of the pre-trial investigation, the victim \u2019 s wife had also identified the neck chain found on the co-defendant as her husband \u2019 s, from the three shown to her. The trial court explained that it believed the victim because his evidence was corroborated by the other evidence in the file and the defendants \u2019 accounts were merely an effort to avoid punishment.","24. The applicant appealed, contesting the assessment of the evidence by the trial court and alleging that various procedural irregularities had occurred in the course of the pre-trial investigation. He also complained that he had not been provided with a lawyer when originally detained on 5 July 2007 and that the prosecution witnesses had not been cross-examined in the course of the retrial.","25. The Court of Appeal and the Supreme Court upheld the trial court \u2019 s judgment on 15 December 2009 and 5 April 2011 respectively, finding that the evidence of the defendants \u2019 guilt was sufficient and there had been no breaches of the procedural rules which would cast doubt on the result. In finding that the guilt was proven the courts referred, in particular, to the victim \u2019 s evidence incriminating the defendants. The Supreme Court held, in particular, that the applicant and his co-defendant had been arrested not on 5 July but on 6 July 2001.","B. Relevant domestic law","26. Article 63 of the Constitution provides that no one may be held liable for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives, as defined by law.","27. Article 374 of the Code of Criminal Procedure of 1960 (as worded at the material time) provided that, if a judgment was quashed on appeal and remitted for retrial on account of an error committed by the trial court, the case was to be tried by a different judge.","Article 87 of the Code required that transcript of the trial be kept in the case file and that the transcript contain, in particular, a detailed record of all witness testimony given in the course of the trial."],"134":["5.The applicant was born in 1985 and is currently serving a life sentence for murder in Mountjoy Prison, Dublin.","6.In the early hours of 9 November 2008, the applicant killed a man in Limerick. It was a case of mistaken identity. The applicant had set out to kill another man at the behest of a well-known criminal figure in the city in the context of a feud between criminal gangs. The applicant mistook the victim, S.G., who had no connection whatsoever to the criminal milieu, for the intended target. S.G., who was 28 years old, was walking home when the applicant shot and wounded him on the street. He then pursued his victim into the back garden of a nearby house where he shot him several times, inflicting five wounds in all, including a fatal head wound.","7.On 24 February 2009 investigating police carried out a search of the applicant\u2019s residence. They arrested him there at 7.15 a.m. He was brought to a police station shortly before 8.00 a.m. There he was informed of his rights, including a right of access to a solicitor. He requested legal advice from a particular solicitor, whom the police duly notified. At 9.55 a.m. the solicitor telephoned the police station and spoke to the applicant. This first consultation lasted two minutes.","8.The first police interview commenced at 10.12 a.m. and lasted fifty minutes. All of the interviews were video recorded, and were conducted without the applicant\u2019s solicitor being physically present in the interview room. At no stage did the applicant or his solicitor request the presence of the latter during questioning. It was confirmed during the subsequent proceedings that, in view of police practice at that time, such a request would have been denied.","9.Another solicitor, Mr O\u2019D., who was acting on behalf of the first solicitor, arrived at the police station at 11.00 a.m. and represented the applicant from that point onwards. The police concluded the first interview at 11.03 a.m. The applicant then had a consultation with the solicitor lasting nine minutes. The second interview commenced at 11.19 a.m. and lasted twenty-three minutes. The third interview started at 12.07 p.m. and lasted one hour and fifty-four minutes. The fourth interview began at 3.00 p.m. and had a duration of one hour and thirty-nine minutes. The fifth interview, beginning at 5.59 p.m., lasted for two hours and seven minutes. The final interview of the day took place between 10 p.m. and 11.42 p.m., a duration of one hour and forty-two minutes. The applicant, who did not request or have any further contact with his solicitor that day, did not make any admissions to police.","10.The following day, 25 February 2009, the police continued to question the applicant. Three interviews took place in the morning and afternoon, lasting almost five hours in total. The applicant was brought before the District Court, which extended his detention for a further 72hours. His solicitor was present at the court hearing. The applicant was brought back to the police station where another interview, the tenth, took place between 10.38 p.m. and 11.25 p.m. During this interview, the police informed him that his former girlfriend, G, who was also the mother of his young daughter, had been arrested in Dublin early the previous morning on suspicion of withholding information. She was being held in detention and interviewed by police about her knowledge of the killing. He was given certain details about her replies to police questions. Once again, the applicant did not request further consultations with his solicitor and did not make any admissions.","11.The interviewing of the applicant continued on 26 February 2009. The eleventh interview began at 9.03 a.m. and lasted seventy-two minutes. Questioning recommenced at 12.22 p.m. for one hour and twenty-one minutes. The police impressed on him that G was enduring the hardship of detention as well as separation from her young daughter on account of the applicant\u2019s refusal to admit to the crime. They also underlined the fact that the victim had been an entirely innocent man. The thirteenth interview took place between 3.02 p.m. and 4.15 p.m. During it, the applicant asked to consult his solicitor. Questioning stopped while the police made contact with the solicitor. The consultation between the applicant and his solicitor was again by telephone. It lasted approximately two minutes.","12.The next interview, the fourteenth, commenced at 5.32 p.m. In the first minutes, the police asked the applicant about text messages sent to MsG. around the time of the murder. At some point the applicant asked to speak to his solicitor again. The interviewers replied that he had just spoken to the solicitor, to which the applicant said that he had not been able to speak to him properly. It is not clear from the documents in the case-file when this occurred. The interview continued. At around 6.15 p.m. the applicant again asked to speak with the solicitor, saying that he would answer questions afterwards. A moment later the interview was briefly suspended while one of the officers left the room to fetch a glass of water. He returned at 6.20p.m. and for the remaining 15 minutes the officers questioned him about his background and his sporting interests. Before ending, they informed him that Ms G was alright. The interview concluded at 6.35 p.m.","13.As requested by the applicant, the solicitor arrived at the police station at 6.52 p.m. He and the applicant spoke for about ten minutes. According to a memo written by a police officer some hours afterwards, the solicitor then approached the officers conducting the interviews and told them, on an off\u2011the\u2011record basis, that the applicant was prepared to admit to the murder provided that Ms G. was released. The police replied that they wanted the applicant to tell the truth about the killing. The solicitor conferred again with the applicant for ten minutes and then informed the police that there would be no admissions before Ms G.\u2019s release. The police replied that a confession taken in such circumstances would not be accepted in court, as it would be regarded as inducement. The solicitor then consulted with the applicant for a further 10 minutes, after which he indicated to the police that the applicant would not admit to anything prior to Ms G. being released and then left the police station.","14.The fifteenth interview commenced at 7.42 p.m. The applicant refused to answer the first two questions posed to him, but then stated that he had been present at the scene around the time of the murder. At that moment another police officer entered the interview room and stated that the applicant\u2019s solicitor had telephoned the station and wished to speak to him. The interview was immediately suspended to allow the applicant confer with his solicitor. This consultation took about four minutes. When the interview resumed at 7.51 p.m., the applicant admitted to shooting the victim. As the interview continued, he provided a number of other details about the crime: how he had been driven to the scene in a particular car; the clothes he had been wearing and which he had burned later; how many shots he had fired, and where; the fact that he had used his right hand to shoot; the fact that the gun had jammed and that he had cleared it by ejecting bullets. He also sketched a map of the crime scene to indicate where each event had taken place. Beyond this, he refused to answer the questions put to him. The interview ended at 9.05 p.m. At the conclusion of the interview, the applicant made a particular gesture. He removed a set of rosary beads that he wore around his neck as a memento of his dead brother, and asked the police give them to the victim\u2019s family.","15.The sixteenth interview took place between 10.09 p.m. and 11.29p.m., a duration of 90 minutes. The police repeatedly asked him to explain why he had killed an innocent man, but the applicant refused to answer.","16.By that time, Ms G. was no longer in custody, having been released at 9p.m. that same day.","17.There were five further interviews the next day, 27 February 2009, with a combined duration of seven hours and twenty-seven minutes. The applicant continued to refuse to answer the questions put to him about the identity of the intended victim, about his own association with a well\u2011known criminal figure in the city, and about calls and messages to and from his mobile phone around the date of the murder. In the twentieth interview, held that evening, he indicated on a map how the crime had unfolded, and stated that when he caught up with him in the back garden, the victim had said \u201cplease stop\u201d just before the fatal shots were fired.","18.Two further interviews were held on 28 February, lasting two hours and three minutes in all. The police showed the applicant various items of evidence retrieved from the scene of the crime, including unfired bullets, bullet casings, bullets removed from the victim\u2019s body, and items of the victim\u2019s clothing. He made no comment on this or any other question put to him. At 3.15 p.m. police charged the applicant with murder and brought him before the District court.","19.The applicant pleaded not guilty. He was tried in the Central Criminal Court.","20.The first trial, in 2011, was inconclusive, the jury failing to reach a verdict.","21.The second trial commenced on 16 January 2012 and lasted 22 days. At the outset, the applicant sought to exclude the admissions he had made to the police. In accordance with domestic law, his challenge was considered by the trial judge in the absence of the jury. This process, a voir dire (a trial within a trial to determine the admissibility of evidence) took ten days. The trial judge viewed more than twenty hours of the video records of the interviews. During that process, the recording of the interview was played on screen and then the interviewing officers gave evidence concerning the videos and were cross-examined by the legal representatives for the prosecution and defence. At the end, counsel for both sides made submissions to the judge in regard to the questions of inducement of threat, oppression and fairness.","22.On the eleventh day of the trial the judge ruled as follows:","\u201cThe defence object to the prosecution proposal to call evidence of various admissions made by Barry Doyle in the course of interviews that took place while he was in custody .... The defence contend that these admissions are inadmissible and rely on three grounds.","1)That the admissions were made involuntarily as a result of a combination of threats, inducements and oppression.","2)That the admissions were made as a result of breaches of the accused\u2019s constitutional right of access to legal advice.","3)The admissions were made as a result of breaches of the requirement of fundamental fairness.","...","The onus of proof in respect of admissibility is on the prosecution and if confessions are to be admitted in evidence the Court must be satisfied beyond a reasonable doubt that it is proper to do so.","...","With regard to the question of legal access Barry Doyle had two consultations with his solicitor while he was in [the police station] prior to making admissions and he was also represented by that solicitor in court when an application was made to extend his detention. The Court does not consider the length of time that either consultation lasted to be relevant in the context of this case. The Court also holds that the [police] were entitled to continue interviewing Barry Doyle in interview 14 when he had complained that a short telephone conversation with his solicitor was not a proper consultation and when his solicitor\u2019s arrival at the [police] station was expected within an hour. The Court is satisfied that there was no breach of Barry Doyle\u2019s constitutional right to legal advice.","In considering the question of oppression the Court observed Barry Doyle in video recordings over a period of in excess of 20 hours and holds that he appeared to be physically and mentally strong throughout. He engaged with the [police] when he chose to do so and refused to answer questions when he did not wish to do so. ...","With regard to the questioning by [the police officers], the Court finds that the interviews were conducted in a careful, patient and structured way in which some of the results of the [police] investigation were gradually revealed to Barry Doyle. The Court also holds that Barry Doyle first began to engage with [the police] in a limited way, essentially as a result of [their] appeal to Barry Doyle\u2019s humanity. This engagement was built on ... and ultimately the accused told the [police] about his involvement in the death of [S.G.].","The Court holds that the interviews conducted by [police] were at all times professional and courteous and involved no oppression. The Court also holds that Barry Doyle was in full control of himself throughout the interviews and holds that he made the admissions that he did because he chose to do so.","With regard to the question as to whether some of the promptings by the [police] to Barry Doyle to the effect that he should tell the truth and not keep [G] away any longer from their child, the question arises as to whether this, or any other related promptings made prior to interview 15 and relating to the release of [G], could amount to an inducement. The first thing to be said is that these remarks must be viewed in the overall context of all that had taken place, which included the various responses of Barry Doyle regarding the death of his brother, the responses regarding his own family, his children by a previous relationship to his relationship with [G], as well as read or taken in the context of the limited answers he had given about living in Limerick and the fact that he had conceded ... that being in custody on suspicion of the murder of [S.G.] was the lowest point in his life. The context also includes the gradual unfolding of the evidence in the case to him and the context further includes numerous appeals to him to tell the truth.","Notwithstanding the context in which they occurred, ... even if these promptings could possibly amount to an inducement when objectively viewed they were not immediately acted on and their effect, whatever it may have been, was dissipated by the consultation Barry Doyle had with his solicitor and his solicitor\u2019s interaction with [the police]. This broke any possible causative link and it is highly relevant that the solicitor told the detectives that Barry Doyle would not admit to the offence and that they would have a bit more work to do.","The Court holds that when Barry Doyle came to make his admissions in interview15 he made them voluntarily. Accordingly, the Court holds that the admissions were made not as a result of oppression and were not made as a result of any threat or inducement.","Finally, the Court has considered the objection made by the defence that the admissions were made as a result of a breach of fundamental fairness. The Court has considered all the objections in the round and bears in mind [the relevant Supreme Court case-law].","The Court holds that there is no breach of the requirements of fundamental fairness and accordingly holds that the confessions made by Barry Doyle are admissible in evidence.\u201d","23.Following the conclusion of the voir dire proceedings, the trial resumed. The jury was shown excerpts from the video recordings and received transcripts of the interviews. There was other evidence before the court. This included ballistic evidence, evidence about the car the applicant had travelled in, and evidence given by G. There was evidence from another witness, C, who said she had been present when the killing had been ordered, and, the day after the murder, had heard the applicant confirm that he had carried it out.","24.Following the final submissions of the prosecution and defence, the judge summarised the case and gave instructions to the jury in the Judge\u2019s Charge. He instructed the jury to be careful when considering the evidence and underlined their obligation to examine neutrally the question of whether the applicant had been induced to confess to the crime, with a detailed explanation of what that meant in the circumstances. The judge also warned the jury that it may be dangerous to convict a person on confession evidence alone without corroboration. The judge went on to explain in detail why that was the case, and what corroboration evidence meant in the circumstances.","25.On 15 February 2012 the applicant was unanimously convicted by a jury of the murder of S.G. He received the mandatory sentence of life imprisonment.","26.The applicant appealed against his conviction, raising 27 grounds. The Court of Appeal dismissed the appeal on 8 June 2015. Insofar as relevant, the Court of Appeal decided as follows.","27.It first dealt with the submission that the police had resorted to inducement or threat to elicit his confession to the murder. It agreed with the position taken by the trial judge that the fact that the applicant had consulted with his lawyer immediately before admitting the crime in the fifteenth interview represented a significant interruption in the process of police questioning. Of even greater significance was the fact that the police rejected the proposal of the applicant to confess in return for the release of G, which the solicitor conveyed to the applicant. With no room for ambiguity or misunderstanding in this respect, the response of the police was sufficient to refute the argument about inducement or threat. Nor did the Court of Appeal accept that, during the course of the interviews, the police resorted to implied inducement or threat. It considered that, as found by the trial judge, the transcripts showed the police trying to appeal to his better nature and to his essential humanity. This interpretation of the evidence was borne out by the applicant\u2019s gesture of remorse following the fifteenth interview (see paragraph 14 above). It was also supported by the fact that the applicant had retained a degree of precision and control over the admissions he was prepared to make. He provided certain precise details to the police about his own actions but gave nothing away about the other persons implicated in the murder. The fact that he did not ask about G\u2019s release after admitting the murder further suggested that there was no element of inducement. It concluded on this point:","\u201c48.The Court holds that the learned trial judge was entitled to find on the evidence that the prosecution had established that the admissions made by the appellant were not brought about by any inducement or threat. The Court is also satisfied that the judge\u2019s interpretation of the interviews was correct. It concludes that the proposal by the appellant\u2019s solicitor not only dissipated any possible belief in an offer by the [police] but also constituted an approach that actually negated belief in an inducement ...\u201d","28.The Court of Appeal then considered the argument that the applicant had not been granted sufficient access to legal advice and, as a result, had been subjected to oppression during questioning. The applicant further complained of irretrievable prejudice caused by the continuation of the fourteenth interview despite his request to consult his solicitor, which was not cured but actually compounded by the subsequent consultation. The judgment states:","\u201c69.The appellant had access to his solicitor for as much time and on as many occasions as he or his lawyer requested, in which circumstances it is hard to see how he can say that there was oppression because of the inadequate legal advice availability. The solicitor ... did not ask to be present for the interviewing by the [police]. No doubt, had he asked for that facility, it would have been refused but that simply did not happen and it was not the understanding at the time that a lawyer was entitled to be present. That, however, does not make the detention of the appellant retrospectively unconstitutional on the basis of a hypothetical refusal of a request that was not made.","...","72.It was submitted by the appellant that if a solicitor had been present throughout the interviewing of Barry Doyle, the interviews would have proceeded differently. But it is by no means clear that that would have been of any great assistance to him; the questions would still have been asked and he could well have been in the same situation of deciding that he was going to confess to the extent, limited in degree as it was, that he actually did in interview 15 and followed up in later interviews.\u201d","29.The Court of Appeal again referred to the fact that all interviews had been recorded, so that the trial judge was able to see precisely what had happened during them. The police had respected the custody regulations, and while they had repeatedly questioned him they had permitted him breaks and access to a solicitor. There was no sign of oppression or unfairness.","30.The Court of Appeal also reviewed in detail the content of the Judge\u2019s Charge to the jury, following a challenge that it had been inadequate and incorrect, and it rejected that complaint. It considered that most of the challenges to the judge\u2019s charge concerning the applicant\u2019s admissions amounted to a complaint that the judge\u2019s charge had not adopted the applicant\u2019s arguments. The Court of Appeal rejected this recalling that \u201c118.It would not have been correct for the judge to tell the jury what the appellant wanted him to say\u201d and \u201c121... it is not the function of the trial judge to make another speech either for defence or prosecution ...\u201d. The Court of Appeal also noted that the applicant criticised the Judge\u2019s Charge on the question of the dissipation of inducement or threat, and recalled that the judge had consulted with the lawyers of both parties in advance on the presentation of that issue and both had indicated their agreement. Overall, the Court of Appeal concluded:","\u201c159.The appellant\u2019s advisors legitimately advanced every ground of objection in defending their client. All of their extensive submissions were fully ventilated and carefully considered by the trial judge. The many issues were re-visited in a hearing in this Court that occupied two full days of oral argument and which were also explored in comprehensive submissions that were of great assistance to the Court.","160.The Court is satisfied that none of the grounds of appeal can succeed. The trial was satisfactory and the conviction of Mr Doyle was safe.\u201d","31.On 8 June 2015 the Supreme Court granted leave to appeal, identifying three issues for examination, one of which is of central relevance to the present application:","\u201cWhether or not the appellant was, in the circumstances of this case, entitled to consult with a solicitor, and have a solicitor present, prior to and during the 15thinterview with the [police], during which admissions were alleged to have been made. This raises the question of whether the right to have a solicitor present during questioning is a matter of right of the detained person, or a matter of concession by the [police].","Whether the matters set out in the applicant\u2019s application, under the heading \u2018relevant facts considered not to be in dispute\u2019, or any of them, constituted threats or inducements to the applicant, and calculated to extract a confession from him. This is a matter not decided by the court of trial, or the Court of Appeal. Secondly, if they do constitute such threats or inducements, whether their effect had \u2018dissipated\u2019, or \u2018worn off\u2019, by the time of the admissions relied on by the State, as held by the trial judge, and whether or not there was any evidence on which it could have been determined that the effect of these threats, or inducements, (if any), had \u2018dissipated\u2019, or \u2018worn off\u2019, by the time of the alleged admissions.\u201d","32.On 18 January 2017 the Supreme Court dismissed the appeal, by a majority of six to one. Six members of the court gave judgment.","33.In the first judgment, the Chief Justice limited her remarks to the first issue above. She recalled that reasonable access to a solicitor was a constitutional right for persons in detention. As a matter of constitutional law, the concept of basic fairness of process applied from the time of arrest, as the Supreme Court had recently affirmed in a judgment that took into account the relevant Convention jurisprudence \u2013 DPP v. Gormley and DPP v.White, [2014] IESC 17 (\u201cGormley\u201d). Since the question of the presence of a solicitor during questioning did not arise on the facts in Gormley, any statements in the judgment on this matter were obiter. She continued:","\u201c15.... [I]t is clear that the appellant requested access to a solicitor and obtained access to a solicitor. He had access to legal advice. He had access to the solicitor before the important Interview 15, and he had access, at the solicitor\u2019s request, during that interview, when the solicitor phoned in and sought to speak to the appellant as Interview 15 was underway. The interview was interrupted to enable the appellant to speak to his solicitor. There was no request to have the legal adviser present during the interview.","16.I am satisfied that the constitutional right of access to legal advice was met by the attendance of the appellant with his solicitor prior to Interview 15, and indeed by the telephone call from his solicitor which interrupted Interview 15.","17.The constitutional right is a right of access to a lawyer. The right is one of access to a lawyer, not of the presence of a lawyer during an interview.\u201d [emphasis in the original]","34.She considered that the requirements of the Convention had also been met. Regarding the second issue in the appeal she concurred with Charleton J (see below).","35.The second judgment was given by O\u2019Donnell J, who also confined his analysis to the first issue. He too regarded statements in Gormley about a more general right to the presence of a solicitor during detention as obiter. Referring to relevant Convention case-law he observed:","\u201c8.Given the fact that the jurisprudence of the ECtHR has to date largely been developed in the context of civil law systems with early supervision of investigation by a magistrate, it cannot be said that it has been definitively determined that the Convention requires a bright-line rule that in a common law system, an accused person must have not just access to, but the assurance of the presence of, a lawyer during any detention. This is particularly so because, until now, the Convention jurisprudence has not adopted any absolute rule that evidence obtained in breach of a Convention right must be inadmissible, but rather has applied a test of considering the overall fairness of the proceedings.\u201d","36.In his view, the legal argument for adopting an absolute rule of presence of a lawyer as a matter of constitutional principle therefore rested almost entirely on the reasoning of the Miranda decision of the US Supreme Court. However, that authority had not been followed in Irish jurisprudence in the fifty years since it was decided. In the present case, the voluntary nature of the confession was not in doubt, and the admission of the applicant\u2019s statement had not been held to be unfair. Were a bright-line rule to be adopted, it would have the potential to exclude key evidence in the shape of statements given voluntarily without the benefit of legal advice in circumstances otherwise beyond criticism. He stated:","\u201c14... I would for my part stop short at this point of finding that in addition to the videotaping of interviews, the access to and advice from a lawyer (provided if necessary by the State), and the requirement that only statements found to be voluntary beyond reasonable doubt be admitted in evidence, the Constitution nevertheless requires and perhaps has always required, the presence of a lawyer at all times during questioning, as a condition of admissibility of any evidence obtained.\u201d","37.He concluded:","\u201c84.The appellant\u2019s conviction was based upon a confession of his guilt, supported by significant independent evidence. This included a description by the appellant of what happened at the scene of the crime examination of matters unknown to the garda, and ballistic evidence. The conviction was supported by independent testimony from Ms. [G.], to whom he (the appellant) made inculpatory remarks outside the confines of a garda station. It was corroborated by evidence from Ms [A.], who was present both when the order was given to the appellant to commit the murder, and the following day when the appellant was challenged as to whether or not he had shot the right man, and when he asserted, incorrectly, that he had. The voluntary nature of the confession was proved to the satisfaction of the trial judge based upon a detailed review of all the evidence, including 20 hours of interview process. There is no basis, under the law, upon which it can be contended that the evidence was inadmissible, or that the trial herein was an unfair one. ...\u201d","38.MacMenamin J gave the third judgment. He recalled that at the time of the applicant\u2019s arrest and trial, the relevant precedent of the Supreme Court, Lavery v. Member in Charge Carrickmacross Garda Station [1999] 2 IR 390, did not accept that a suspect was generally entitled to the presence of a solicitor during police questioning.","39.He rejected the argument that the applicant\u2019s will had been sapped, notably during the fourteenth interview. While the police had continued to question him even after he had requested another consultation with his solicitor, nothing had been elicited in that interview that had carried through to the next interview. There was no basis to consider that the applicant\u2019s position, at that point in time or subsequently, had been irretrievably prejudiced.","40.As to the argument that, in light of the Supreme Court\u2019s decision in Gormley and also Convention and US case-law, there was now a right to have a solicitor present during police questioning, MacMenamin J held that it could not succeed in the instant case. He stated:","\u201c46.... [W]hat I think is imperative to bear in mind, is that here (subject to the point made regarding the immaterial Interview 14), the appellant was granted access to a solicitor at the outset of his custody, during his custody, prior to the relevant interview, and even during that interview. His limited confession was that he accepted that he had killed [S.G.]. Unavoidably, the appellant must face the fact that the logic of what is sought to be applied here is a retrospective recognition and application of a then unrecognised constitutional right to have a lawyer present throughout interviews.\u201d [emphasis in the original]","41.The judge continued that he would be prepared, in light of recent developments in law and procedures, to recognise in future cases a right under the Constitution to have a solicitor present during police questioning. He then referred to a number of relevant ECtHR judgments, in particular the case of Salduz v. Turkey [GC], no. 36391\/02, ECHR 2008. He considered that the facts of the present case were very different, and that the two must be distinguished. He added that, for the purposes of Article 6 of the Convention, the relevant issue was always whether criminal proceedings as a whole had been fair.","42.Charleton J, with whom Laffoy J concurred, dealt first with the inducement issue. He reviewed in detail the applicant\u2019s evidence and the circumstances in which it was taken by police. He considered that in the thirteenth interview the references to G\u2019s situation constituted a clear inducement to confess. However, the fact that he was granted access to independent legal advice from his chosen solicitor was important. He then referred to several factors \u2013 including the evidence of remorse, the fact that the applicant limited his admissions to his own role, the fact that he did not retract his statement, and the gesture involving the beads \u2013 which constituted material on which the decision of the trial judge could reasonably be made. The decision could not be disturbed.","43.On the issue of access to a solicitor, Charleton J noted that the Court of Appeal had followed the existing Supreme Court case-law to the effect that there was no constitutional right to have a solicitor present during questioning. The Gormley case had not established such a right, since this point had not arisen on the facts of that case. While the fundamental requirement of basic fairness applied from the time of arrest, it did not necessarily follow that all of the safeguards of a fair trial, especially legal representation, must also be applied in full from the outset.","44.O\u2019Malley J agreed that the appeal should be dismissed. However, she took a different approach to MacMenamin and Charleton JJ in relation to the implications of the right of access to legal advice. She agreed with the conclusion of MacMenamin J that there was no causative link between the applicant\u2019s admissions and the absence of the solicitor during questioning, and that this was sufficient to dispose of the issue in the present case. However, she considered that the issue might properly arise for consideration in another case. She saw some strength in the argument that this should now be regarded as a right flowing from the constitutional right to a fair trial. The State had in effect anticipated this by modifying police practice in this respect. She noted that the issue might arise in the context of statutory provisions that permit the drawing of inferences from a failure to answer questions. As this was not an appropriate case to reach a definitive view, she reserved her position on the question. She stated:","\u201c71... I consider that the question of the existence of such a right does not truly arise on the admittedly unusual facts of this case.","72.Largely, this is because of the unusually central role, discussed above, taken by [the solicitor] in the events immediately preceding the admissions. Prior to that, it is true that the appellant did not see his solicitor for any great length of time. However, it is also clear that he was aware of his right to see him; that he saw him when he wanted to, for as long as he wanted; and that he was under no pressure to relinquish or curtail his right of access. It is also clear that while he answered some questions in some interviews he did not incriminate himself prior to Interview No.15.","73.I do not accept the contention that the statement by the appellant (in InterviewNo. 14) that he would answer questions when he saw his solicitor demonstrates that he was \u2018irretrievably prejudiced\u2019 by the [police] decision to continue asking questions despite the request for the solicitor. I cannot see that it should be interpreted as a decision to incriminate himself - he committed himself to nothing, and certainly not to admitting guilt. There is no evidence that his will was overborne to any extent, still less to the extent that a consultation could not assist him.","74.The actual admissions came about in the circumstances discussed above. The role of the solicitor was, in fact, far more central than would be envisaged where a lawyer is present in the interview room - the [police] and the appellant were actually communicating through him, rather than directly with each other. He had complete privacy to advise his client while carrying on the discussion with the [police] and also a greater degree of control than would be normal over what was said on behalf of the client and how it was presented. For the reasons already discussed, therefore I consider that not only was the trial judge entitled to conclude that the admissions were the result of a fully voluntary decision by the appellant, but that there is nothing to indicate that the exercise of the right now contended for would have altered the situation in any material respect.\u201d","45.McKechnie J dissented. On the issue of the presence of the solicitor during questioning, he first rejected the applicant\u2019s argument that the amount of contact he had had with his solicitor during the period of detention did not amount to reasonable access. The real question at issue was if, where reasonable access to legal advice has been afforded, a solicitor\u2019s attendance at the interview process was as of right or by concession. He referred to the recent change of police practice in this respect and observed:","\u201c136.[A]lthough this newly-established practice is not definitive in the legal analysis of whether such a right exists, nonetheless the shifts which I have described, being both potent and influential, are significant and should not be underestimated. Reality, as it now stands, must be faced up to.\u201d","46.Turning to Convention case-law, he analysed the Salduz judgment and considered that it did not directly support the applicant\u2019s argument. He considered, however, that this Court\u2019s interpretation of Article 6 had evolved since then, citing the following cases: Dayanan v. Turkey, no.7377\/03, 13 October 2009; Navone and Others v. Monaco, nos.62880\/11 and 2 others, 24 October 2013; A.T. v. Luxembourg, no.30460\/13, 9 April 2015; Simons v. Belgium (dec.), no. 71407\/10, 28August 2012; and Brusco v. France, no. 1466\/07, 14 October 2010. In drawing out the main points of this case-law he stated:","\u201c150.... [I]t seems clear that the judgments have made express reference to a suspect\u2019s right to have a lawyer present during the interview process. Thus on one reading it could be said that this right has already been clearly established. However, I am not aware of any decision reflecting the particular facts of Mr. Doyle\u2019s situation ... in which the Court has definitively declared the existence of such right.\u201d","47.He next referred to Directive 2013\/48\/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1\u201312). Under the Directive, the right of suspects or accused persons for their lawyer to be present and to participate effectively in during questioning is provided for. Although the Directive did not apply to Ireland, it \u201cilluminate[d] the directional focus\u201d of other EU Member States, and \u201coffer[ed] further evidence of a prevailing trend amongst fellow members of the Union\u201d. Moreover, the Directive had been referred to by in A.T. v. Luxembourg (cited above). In addition, he took note of the position of the Committee for the Prevention of Torture, which considered that the right of access to a lawyer should include the right to legal assistance during questioning (CPT\/Inf (2011) 28, at \u00a724). He then summarised the position in the different jurisdictions of the United Kingdom, noting that in each of them provision was made for solicitors to be present during questioning. In view of all of this material, he saw a \u201csignificant shift in the acknowledgment of this right across other diverse legal regimes\u201d:","\u201c167.... I believe that on balance the existing case law of the ECtHR is already to the effect that the Convention does in fact require the presence of a lawyer during questioning. The judgments [referred to above] and many others, all make express reference to the existence of such a right in clear-cut and deliberate terms. To the reservation that this position has not been definitively spelled out, I believe that if the settled and current trend of dealing with the availability of legal protection should continue, then it is more likely than not that the outcome of any case where the precise point was directly in issue would support the conclusion which I have arrived at. Of course this anticipation may be wrong, but, even if so, the existing state of jurisprudence is of such force in this regard that such of itself is highly influential in calling for such a right. ...\u201d","48.He then set out a series of considerations in support of according constitutional status to the right to the presence of a solicitor during questioning: the substantial length of detention permitted by law, allowing for multiple interviews throughout the day over a number of days; the daunting and frightening effect that detention may have on many people; even where the accused is a hardened criminal, the importance of preserving their rights too; the increasing complexity of the criminal law; the limits of judicial control, which prohibits rather than prevents abuse. He did not consider that existing safeguards were sufficient to overcome the inequality in the interview room. While the recording of interviews permitted judicial scrutiny of the actions of the police, he was","\u201cnot convinced that this ex post facto supervision is an adequate surrogate for the presence of a solicitor at the interview itself.\u201d","49.Article 38.1 of the Constitution enshrines the principle of fairness in the criminal process: \u201cNo person shall be tried on any criminal charge save in due course of law\u201d.","50.The right of access to a solicitor, when requested by or on behalf of a person in detention, was recognised as being a constitutional right by Finlay C.J. in The People (DPP) v. Healy [1990] 2 I.R. 73, where he stated:","\u201cThe undoubted right of reasonable access to a solicitor enjoyed by a person who is in detention must be interpreted as being directed towards the vital function of ensuring that such person is aware of his rights and has the independent advice which would be appropriate in order to permit him to reach a truly free decision as to his attitude to interrogation or to the making of any statement, be it exculpatory or inculpatory. The availability of advice from a lawyer must, in my view, be seen as a contribution, at least, towards some measure of equality in the position of the detained person and his interrogators. Viewed in that light, I am driven to the conclusion that such an important and fundamental standard of fairness in the administration of justice as the right of access to a lawyer must be deemed to be constitutional in it origin, and to classify it as merely legal would be to undermine its importance and the completeness of the protection of it which the courts are obliged to give.\u201d","51.In the case The People (DPP) v Pringle (1981) 2 Frewen 57, it was held by O\u2019Higgins CJ that, in the absence of an express guarantee against self\u2011incrimination in the Irish Constitution, it was not possible to infer a right to have a solicitor present during questioning.","52.In the case Lavery v. Member in Charge, Carrickmacross Garda Station (cited above, see paragraph 38), O\u2019Flaherty J affirmed that position:","\u201cCounsel for the State submitted to the High Court Judge that in effect what [the solicitor] was seeking was that the [police] should give him regular updates and running accounts of the progress of their investigations and that this was going too far. I agree. The solicitor is not entitled to be present at the interviews. Neither was it open to the applicant, or his solicitor, to prescribe the manner by which the interviews might be conducted, or where.\u201d","53.The core issue in DPP v.Gormley and DPP v. White (cited above, see paragraph 33) which was repeatedly referred to by the Supreme Court in the present case was, according to Clarke J:","\u201c8.1.... whether the entitlement to a trial in due course of law, guaranteed by Article 38(1) of [the Irish Constitution], encompasses an entitlement to have access to legal advice prior to the conduct of any interrogation of a suspect arrested .... If that proposition is accepted at the level of general principle then many more questions of detail would, of course, arise. Questions such as ... the extent to which a lawyer is entitled to be present during the questioning as well as being entitled to advise the suspect prior to questioning... . By no means do all of those issues arise on the facts of these cases.\u201d [Emphasis added]","54.On the main question raised in the Gormley case Clarke J stated:","\u201c8.7.The first issue which perhaps arises is as to whether it is appropriate to regard any part of the investigative stage of a criminal process as forming part of a \u2018trial in due course of law\u2019. It is clear that the ECtHR takes such a view. It must, of course, be recalled that, in many civil law countries, there are formal parts of the investigative process which are judicial or involve prosecutors who have a quasi-judicial status. The line between investigation and trial is not necessarily the same in each jurisdiction. Furthermore, it is important to emphasise a potential distinction between a formal investigation directly involving an arrested suspect and what might be termed a pure investigative stage where the police or other relevant prosecuting authorities are simply gathering evidence.","8.8.I am persuaded that the point at which the coercive power of the State, in the form of an arrest, is exercised against a suspect represents an important juncture in any potential criminal process. Thereafter the suspect is no longer someone who is simply being investigated by the gathering of whatever evidence might be available. Thereafter the suspect has been deprived of his or her liberty and, in many cases, can be subjected to mandatory questioning for various periods and, indeed, in certain circumstances, may be exposed to a requirement, under penal sanction, to provide forensic samples. It seems to me that once the power of the State has been exercised against a suspect in that way, it is proper to regard the process thereafter as being intimately connected with a potential criminal trial rather than being one at a pure investigative stage. It seems to me to follow that the requirement that persons only be tried in due course of law, therefore, requires that the basic fairness of process identified as an essential ingredient of that concept by this Court in State (Healy) v.Donoghue applies from the time of arrest of a suspect. The precise consequences of such a requirement do, of course, require careful and detailed analysis. It does not, necessarily, follow that all of the rights which someone may have at trial (in the sense of the conduct of a full hearing of the criminal charge before a judge with or without a jury) apply at each stage of the process leading up to such a trial. However, it seems to me that the fundamental requirement of basic fairness does apply from the time of arrest such that any breach of that requirement can lead to an absence of a trial in due course of law. In that regard it seems to me that the Irish position is the same as that acknowledged by the ECtHR and by the Supreme Court of the United States.\u201d","55.Later in his judgment he observed:","\u201c9.10... [T]he question as to whether a suspect is entitled to have a lawyer present during questioning does not arise on the facts of this case for the questioning in respect of which complaint is made occurred before the relevant lawyer even arrived. However, it does need to be noted that the jurisprudence of both the ECtHR and the United States Supreme Court clearly recognises that the entitlements of a suspect extend to having the relevant lawyer present.\u201d","56.In a concurring judgment, Hardiman J stated:","\u201cFor many years now judicial and legal authorities have pointed to the likelihood that our system\u2019s option for the very widespread questioning of suspects who are held in custody for that purpose, was very likely to attract a right on the part of such suspects, not merely to be advised by lawyers before interrogation, but to have lawyers present at the interrogation, and enabled to intervene where appropriate. This has now come to pass in countries with similar judicial systems... and also under the European Convention on Human Rights (\u2018ECHR\u2019)...","It is notable, however, that Mr. Gormley has not asserted that right to its full extent but has asserted only a right to have a lawyer to advise him, in custody, before the questioning starts. Manifestly, however, it will not be long before some person or other asserts a right to legal advice in custody on a broader basis. I say this in explicit terms in order that this may be considered by those whose duty it is to take account of potential developments.\u201d","57.Following the Gormley case, and acting on the advice of the Director of Public Prosecutions, the Irish police force changed its practice so as to permit a solicitor to be present during the questioning of a suspect. In April 2015 it published a code of practice on the subject, setting out in detail the manner in which police officers should give effect to a suspect\u2019s entitlement to the presence of a solicitor.","58.In December 2015, the Law Society of Ireland published a document entitled \u201cGuidance for Solicitors Providing Legal Services in Garda Stations\u201d. The document sets out advice for solicitors, in light of the relevant law and the police code of practice.","59.Article 3(1) \u2013 (3) of Directive 2013\/48, entitled \u201cThe right of access to a lawyer in criminal proceedings\u201d reads as follows:","\u201c1.Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.","2.Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:","(a)before they are questioned by the police or by another law enforcement or judicial authority;","(b)upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3;","(c)without undue delay after deprivation of liberty;","(d)where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.","3.The right of access to a lawyer shall entail the following:","(a)Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;","(b)Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned;","(c)Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence\u2011gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned:","(i)identity parades;","(ii)confrontations;","(iii)reconstructions of the scene of a crime.\u201d","60.For a detailed summary of the recitals and other relevant provisions of the directive see Beuze v. Belgium [GC], no. 71409\/10, \u00a7\u00a7 82-85, 9November 2018).","61.Directive 2013\/48, which had to be transposed by 12 November 2016, applies to all EU Member States except for Denmark, Ireland and the United Kingdom."],"135":["6.The applicant was born in 1958 and lives in Tolyatti.","A.Death of the applicant\u2019s daughter and investigation thereof","7.On 8 May 2007 the applicant\u2019s daughter, Z., was found hanged in the apartment where she had been living with her husband, Ch., and their two minor children.","8.On the same day the law-enforcement bodies of the Nenetskiy Autonomous Region were informed of Z.\u2019s death. An on-site inspection and an initial examination of Z.\u2019s body were carried out. Statements were obtained from those who had had contact with Z. shortly before her death and a post-mortem examination of Z.\u2019s body was ordered.","9.The post-mortem examination (in a report of 1 June 2007) established that Z. had died as a result of mechanical asphyxia caused by deliberate self\u2011harm by means of hanging. Apart from a strangulation mark, multiple bruises and abrasions were discovered on Z.\u2019s face, forearms and shins which could have manifested shortly before Z.\u2019s death as a result of impacts from blunt objects, such as blows inflicted on her face, arms and legs at the hands of another person. Ethyl alcohol was found in Z.\u2019s blood and urine, which confirmed that she had been in a state of alcohol intoxication.","10.In May to June 2007 the applicant lodged complaints with the Nenetskiy Regional Prosecutor\u2019s Office, seeking to have criminal proceedings instituted against her son-in-law, Ch., who she alleged had incited Z. to commit suicide by inflicting regular beatings and other violent actions on her.","11.Between 18 May 2007 and 14 October 2009 nineteen decisions were taken by an investigator refusing to institute a formal criminal investigation into Z.\u2019s death. The pre-investigation inquiry established that Z., in a state of alcohol intoxication and after having had a row with Ch., had committed suicide by hanging herself. The above decisions were subsequently set aside by the supervising prosecutor and by the Naryan-Mar Town Court of the Nenetskiy Autonomous Region (\u201cthe Town Court\u201d) as unlawful and unsubstantiated. On each occasion it was noted that the instructions, given to the investigator by the prosecutor and the head of the criminal investigations department, to carry out procedural measures aimed at establishing the existence of the circumstances mentioned in the applicant\u2019s complaint and the circumstances surrounding Z.\u2019s death, had not been complied with.","12.On 13 November 2009 the applicant complained to the Regional Prosecutor\u2019s Office of the failure of the criminal investigations department and the police department to carry out comprehensive and prompt inquiries into the death of her daughter.","13.On the same day the first deputy prosecutor of the Regional Prosecutor\u2019s Office held that there had been a failure to comply with the law and the requirement of promptness in carrying out the inquiry into Z.\u2019s death by the officers of the criminal investigations department and the police department, which had violated the applicant\u2019s rights.","14.Subsequently, on 15 December 2009 the investigator took another decision refusing to institute a criminal investigation into Z.\u2019s death.","15.On 16 September 2011 the chief of the Inter-District Investigative Department of the Investigation Committee of the Russian Federation for the Arkhangelsk Region and the Nenetskiy Autonomous Region set aside the decision of 15December 2009 as unlawful and unsubstantiated. He noted, in particular, that the investigator had not given due consideration to information received from several persons to the effect that Ch. had regularly subjected Z. to beatings and humiliation. In order to establish the circumstances of the incident and the reasons and the motives for the suicide, the chief investigator considered it necessary to carry out investigative measures involving, in particular, specialists and experts in psychology and psychiatry, which was only possible in the framework of a criminal investigation.","16.On 19September 2011 criminal proceedings were instituted against Ch. under Article 110 of the Criminal Code (incitement to commit suicide).","17.On 20 September 2011, however, the deputy prosecutor of the Nenetskiy Autonomous Region set aside the above decision.","18.Following another round of pre-investigation inquiries, on 24October 2011 the institution of a criminal investigation into the death of Z. was again refused under Article 24 \u00a7 1 (2) of the Code of Criminal Procedure, in view of a lack of the constituent elements of a crime under Article 110 of the Criminal Code in Ch.\u2019s actions and the absence of any crime under Article 105 \u00a7 1 of the Criminal Code (murder). The investigator arrived at the conclusion that Z.\u2019s decision to commit suicide had not been provoked by any actions of Ch. amounting to inhuman or degrading treatment. Z. had been in a state of severe alcohol intoxication and could not have fully understood her actions when taking the decision to take her own life. The bruises and abrasions on Z.\u2019s face and body could have originated during a heated altercation with Ch. shortly before the former\u2019s death. No direct evidence in support of the theory that Ch. had ill-treated Z. had been discovered. Even assuming that the two disclosed instances of Z. being beaten by Ch. (in 2005 and 2007) had indeed taken place, they would have been one-off unrelated events occurring under unspecified circumstances and could not have been connected to Z.\u2019s decision to take her own life. Furthermore, Z. had not been fully dependent on Ch. or particularly vulnerable. According to Z.\u2019s relatives, she could have left Ch. at any time, divorced him, taken the children and changed her place of residence. She could also have sought medical assistance, and\/or complained about Ch.\u2019s actions to the police. However, she had not done so. At the same time she had told her relatives that she loved her husband and did not want to divorce him. The case file further contained information indicating that Ch. had inflicted beatings on Z. in June 2006, of which Z. had complained to the police. However, Z.\u2019s submissions had been inconsistent and she had eventually refused to pursue those proceedings. The applicant\u2019s theory that Ch. had staged the suicide had been checked and found to be unsupported by the material in the case file.","19.Following a complaint by the applicant, on 10 September 2013 the Town Court found the decision of 24 October 2011 lawful and justified.","B.Criminal proceedings against Ch. on account of regular beatings","20.In the meantime, on 8 May 2008 it had been established by the investigator that Ch.\u2019s actions in respect of Z. contained the elements of a criminal offence under Article 117 \u00a7 1 of the Criminal Code (causing physical suffering by inflicting regular beatings) for the period between 19June 2006 and 8 May 2007. The relevant material was submitted for a pre-investigation inquiry to the Nenetskiy Autonomous Region police department.","21.Between May 2008 and March 2010 at least seventeen decisions were taken by the police department refusing to institute criminal proceedings against Ch. under Article117 \u00a7 1 of the Criminal Code, all of which were subsequently set aside by the supervising prosecutor as unlawful and unsubstantiated.","22.On 24 June 2010 criminal proceedings were instituted against Ch. under Article 117 \u00a7 1 of the Criminal Code.","23.On 7 July 2010 the applicant was granted victim status in the proceedings.","24.On 13 April 2011 Ch.\u2019s actions were reclassified as inflicting beatings, thus coming under Article116\u00a71 of the Criminal Code, but charges under this Article could not be pursued in the absence of an application by the victim. Accordingly, the criminal proceedings were discontinued on the basis of Article24\u00a71(5) of the Code of Criminal Procedure.","C.Civil claim for damages","25.In April 2009 the applicant brought civil proceedings against the Ministry of Finance seeking damages for the non-pecuniary harm caused to her by the failure of the domestic authorities to carry out an effective investigation into the circumstances of her daughter\u2019s death.","26.On 5 June 2009 the Naryan-Mar Town Court dismissed the applicant\u2019s claim.","27.On 16 July 2009 the Nenetskiy Autonomous Regional Court upheld the judgment on appeal."],"136":["6.The applicant was born in 1990 and lives in Alphen aan den Rijn.","A.Arrest and questioning of the applicant","7.On 19 August 2009 the applicant, who was then nineteen years of age, was arrested on suspicion of distribution of child pornography (three pictures of a 16-year-old girl) in April of that year. He was informed that he had the right to consult a lawyer.","8.At the police station the applicant was taken into police custody (inverzekeringstelling) and, before he had consulted his lawyer (who had not been immediately available) but with his consent, police officers commenced the so-called social interview (sociaal verhoor), during which questions were put to him about his personal circumstances and his personality but not about the offence of which he was suspected. He told the officers, inter alia, that he had a brain disorder: he had cavernous hemangiomas (clusters of abnormal blood vessels) in his brain and spinal cord. This did not affect his functioning other than that it might have a bearing on his trust in others; moreover, while he was allowed to play football he could not head the ball. When the applicant\u2019s lawyer became available the police officers suspended the interview to give the applicant the opportunity to consult his lawyer by telephone. After that conversation, the applicant stated that his lawyer would come to see him at the end of the afternoon and that, on the advice of his lawyer, he would not answer any more questions. The interview was terminated. The applicant met with his lawyer later that day.","9.The following day, 20 August 2009, the applicant was interviewed twice, including concerning distribution of child pornography, of which he was suspected. At the beginning of the interview, the applicant stated that he would prefer to have his lawyer present. He was told that this was not possible and the interview was started. The applicant replied to the questions put to him.","10.In the course of the interview the police officers questioning the applicant noted that he made a spasm-like movement with his arm. They asked him whether he was having an epileptic fit. The applicant confirmed that he was. The police officers then decided to interrupt the interview and call a doctor. They heard the applicant say that the seizure could have been caused by a combination of stress and other factors. The interview was resumed.","11.A final interview was held with the applicant on 21 August 2009. Audio recordings were made of all the interviews.","12.The applicant was released from police custody on 21 August 2009.","B.Proceedings before the domestic courts","13.On 25 March 2011 the Regional Court (rechtbank) of The Hague found the applicant guilty of distribution of child pornography and sentenced him to a suspended sentence of two weeks\u2019 imprisonment and to eighty hours\u2019 community service. The Regional Court was of the opinion that the applicant should have been enabled to consult his lawyer prior to being interviewed by the police for the first time. However, it did not appear from the subsequent interviews that they had been conducted without the applicant having been able to consult his lawyer. Given, moreover, that the contents of the interviews that had been conducted after the applicant had received legal assistance had not substantially differed from the content of the interview that had taken place without legal assistance, the Regional Court considered that the finding that a procedural requirement had not been complied with (vormverzuim) sufficed. The applicant lodged an appeal (hoger beroep).","14.On 3 July 2013 the Court of Appeal (gerechtshof) of The Hague quashed the decision of the Regional Court, convicted the applicant of the same offence and sentenced him to forty hours\u2019 community service. As regards the claim that the applicant ought to have been assisted by a lawyer during the police interviews, the Court of Appeal held as follows:","\u201cAt the hearing on appeal counsel submitted that at the time of the police interviews the suspect had the mental age of a 15 or 16-year old, and also that he was suffering from a brain disorder which may have caused him to have epileptic seizures. Counsel did not submit (medical) data to substantiate that claim.","In the opinion of the Court of Appeal, the above does not entail an indication for the officers who interviewed the suspect that he had the mental age of a 15 or 16-year old, nor that the brain disorder from which the suspect is apparently suffering was capable of causing an epileptic seizure. After the suspect had, in the eyes of the interviewing officers, made \u2018a kind of spastic\u2019 movement, they had consulted a physician before resuming the interview. The Court of Appeal considers that this was the correct course of action. The Court of Appeal does not agree with counsel that the interviewing officers ought reasonably to have considered the suspect as vulnerable or underage. This means in the light of the Salduz case-law that the suspect, who was an adult at the time, was not entitled to have a lawyer present at his interview.\u201d","15.The Court of Appeal based its conviction of the applicant on the following evidence:","-a complaint lodged with the police by the victim, who claimed that in March 2009 (when she had been 16 years old), she had shown the applicant various parts of her body via webcam, that she had subsequently been told by a third party that the applicant had sent photographs of her to that third party, and that she had been told by two other parties that they had received photographs of her;","-a further statement made by the victim to the police, according to which she had taken a photograph of a part of her body and sent it to the applicant by mobile telephone;","-a statement made by the applicant to the police on 20 August 2009 to the effect that he had sent several photographs (showing parts of the victim\u2019s body), one of which he had taken by means of a screen shot while the others had been sent to him by the victim, to a third party via mobile telephone and that he had also uploaded them onto an image-hosting website;","-a statement made by the aforementioned third party to the police, according to which she had received two photographs from the applicant showing parts of the victim\u2019s body; and","-a record drawn up by a police officer whose investigations into the victim\u2019s allegations had shown that the photographs showing part of the victim\u2019s body were accessible on the world wide web via a profile with a name used by the applicant on the above-mentioned image-hosting website.","16.The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad), complaining, inter alia, of the refusal to allow him to be assisted by his lawyer during police questioning. On 18 November 2014 the Supreme Court dismissed the appeal with summary reasoning, in accordance with section 81 of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie). Under that provision, the Supreme Court may limit its reasoning in a decision to a finding that a complaint does not provide grounds to overturn the judgment appealed against or does not require answers to questions of law in the interests of the uniform application or development of the law."],"137":["6.The applicant was born in 1951 and lives in Paola.","7.On 29 January 2002 a hold-up in the applicant\u2019s business premises (a showroom), while he was present, was reported to the Police. The Police suspected that this was not a case of a real hold-up but of fabrication of false evidence.","8.On an unspecified day, shortly after the incident, the applicant gave statements to a court expert. He explained that four individuals had entered the premises, tied him up, and stolen money, amongst other things.","9.A.F., an employee of the company, told the police that he had tied the applicant to a chair with tape and that he had put a suitcase next to the entrance of the showroom, as requested by the applicant. He also stated that he accepted to help the applicant move a photocopier (which had been found overturned on the floor) and that he had seen the applicant put the server of a computer network system under the sofa of a room on the second floor, and the video recorder and the safe-deposit box in other places.","10.Subsequently, on 1 February 2002 at 6.00 pm, the police questioned the applicant in the absence of a lawyer. He was cautioned i.e. he was informed of his right to remain silent and that everything he would say would be put down in writing and could be used as evidence against him. During the interrogation the applicant confirmed to the Police the statement he had given to the expert, noting that something had been done behind his back. In reply to questioning, he stated that another person had the keys to his showroom and that he had not seen a server of a computer network system, neither a video recorder connected to CCTV cameras nor a safe\u2011deposit box (which had allegedly been stolen on 29 January 2002) and which were found by the police on 1 February 2002. Confronted with A.F.s version of events, the applicant stated that that was A.F.\u2019s allegation. The applicant stated that he had nothing to do with the items mentioned or with what A.F. said they had done together. Thus, it was irrelevant to consider as a coincidence or otherwise the fact that the police had found the things in the places where A.F. had indicated they would be. The applicant repeatedly stated that he had no difficulty reiterating his version of events, if and when it was needed, should they go to court. When invited to repeat his version of events on the spot the applicant requested that his statement be tape\u2011recorded and his request was acceded to. He confirmed that his statement had been made freely and without threats or promises. The questioning session ended at 6.43 pm.","11.He was then moved to another room at 7.50 pm to record his detailed statement of events (a 38 page transcript). The applicant gave his particulars, was cautioned and recounted in great detail his version of the events of 29 January 2002. Following that, the applicant was asked questions about his business. In particular he noted that he had no reason to make up such a plan and that it would have been foolish of him to throw out (narmih) his business. The applicant was unable to quantify how much profits he was making, questioning which companies were making profits at the time. He avoided replying to a question concerning any losses and insisted that it was irrelevant whether or not he was making profits, as he had saved up the profits he had made in previous years. The applicant could not recall when he last imported products, but he replied that the last time he had exported was \u2011 if he remembered well \u2011 in December, probably towards Dubai but he could not remember the value of the transaction. On being asked again, he replied that he probably last imported in December, but was unable to give any details. He stated that local business was doing better than exports, but he was unable to quantify his profits. Upon repeated questioning he replied that during the same year he had made a loss. The applicant denied that he was not doing well also on the local market and was hesitant to accept that his business was facing a downfall. The applicant claimed to have had 70,000 United States dollars (USD) in the safe\u2011deposit box which had been stolen. He admitted that neither on the day of the hold\u2011up nor earlier that day (1 February 2002) had it been possible to open the safe\u2011deposit box (found by the police officers). The applicant admitted dealing in thousands of Maltese liras (MTL), but denied that his last import was more than three months before, although he admitted it could have been in November. He admitted that the photocopier which had been found overturned on the floor had not been working for more than two years; adding that it was moved recently to where it was found only because he adjusted its settings and made it work. He admitted that the repairs had been estimated at MTL280 (approximately 650 euros (EUR)), but it happened that he knew how to operate it. A series of questions ensued concerning the photocopier. The applicant then admitted that the items allegedly stolen (the safe\u2011deposit box, the server and the CCTV recorder) were found earlier at the premises (on the same day \u2011 1 February 2002) and he insisted that if the police were to watch the CCTV video, they would see the four men. A series of questions concerning the functioning of the CCTV and the movements of A.F., his only employee, ensued, as well as a series of questions concerning the details of the actual robbery, the money stolen, i.e. allegedly USD70,000 which were in the safe\u2011deposit box and MTL34,000 (approximately EUR79,000) which were in a suitcase and other cash from his wallet. The applicant stated that he could provide some paper invoices in connection with some of the money. The police questioned why he had said the opposite earlier, i.e. that he could not provide proof in the absence of the server which had been stolen. Again questioned about his profits, the applicant was unable to say how much profit or sales he made on a daily basis, admitting that it had been a long time since he had made MTL100,000 (EUR 233,000) a day. He was also unable to give details about the local sales and admitted that he had problems with the bank. A series of questions and answers concerning A.F., and in particular how he was paid his monthly salary, ensued. At a point A.F. was also brought to the room for questioning in the presence of the applicant. Throughout the questioning the applicant repeatedly reiterated that he was not insured for theft of cash, but in as far as he recalled only for theft of apparatus. On further questioning he could not remember details of his insurance policy. The applicant stated that he had more money than he owed the bank, but did not know how much exactly he owed in payment of rents for various properties he had on the island. In any event he declared that he could pay such rent as the bank had recently reopened his accounts. The questioning ended with a series of factual questioning concerning the events on the day of the alleged robbery.","12.On 2 February 2002 at 10.28 a.m. the applicant made another statement to the police, after being cautioned and in the absence of a lawyer. He confirmed that the police had, on the previous day, seized a video recorder (of the brand GYYR) and a video tape which was in it, and that upon the applicant\u2019s request, the police, the applicant and the court\u2011appointed expert had viewed the content of the video tape together that same evening. He confirmed that the video recordings showed that it started on 9 October 2000 and ended on 24 October 2000, and that he had requested the viewing of the video for the police to confirm and see the four individuals who had robbed him. However, it had not shown the four persons who robbed him. The applicant explained that he could not confirm that the video recorder was the same one connected to the system, and the second tape inside it was surely not the same type that recorded the events of 29January 2002. He could not remember how many video recorders of the brand GYYR he possessed noting that the new ones used to be in the stores and others could be in the repair room or in another room. He answered that when the previous day, on site, he had replied to the police that he had no idea where the video recorder would be, he had done so because he had no video recorder except for that attached to the system which had been stolen. When the police pointed out the inconsistency with his previous answer the applicant replied that he had been speaking about the repair room. When he was asked whether the CCTV worked, the applicant had responded that the last time he had needed to check something (at Christmas time), it had been functioning properly. He confirmed that he did not know where the things were located and, in his view, this had been a frame up against him or against his company, by someone close to him or someone who had worked for him, or a competitor. The questioning was concluded at 11.16 am.","13.On the same day i.e. 2 February 2002 the applicant was brought before the Court of Magistrates, as a Court of Criminal Inquiry, together with his employee A.F. They were charged with fabrication of false evidence, simulation of offence, fraud relating to insurance and making a false statement under oath under Articles 110 (1) and (2), 295 and 108 of the Maltese Criminal Code, Chapter 9 of the Laws of Malta. The applicant was also charged with being a recidivist.","14.On an unspecified date, upon a request by the prosecution of 7October 2002, the case of the applicant was separated from that of his employee A.F. in order for them to be judged separately. On 30 June 2003 A.F. was found guilty of simulation of an offence. On 2 April 2004 the Court of Criminal Appeal confirmed the judgment against A.F.","15.On 19 May 2006 A.F. gave evidence in the criminal proceedings against the applicant. He testified that the applicant, who was his employer, had forced him to tie him (the applicant) to a chair. On the applicant\u2019s insistence he had done so for fear of losing his job. He had tied him to a metal chair brought by the applicant himself. He had left the shop at around 2.30p.m. and when he returned the applicant had told him what to do and where to call and who to call in a particular sequence. The applicant\u2019s son had arrived at around 3.30 p.m. to help him open the shutter; the applicant pretended to cry and told them to call the police. When A.F. had been asked whether the applicant ever told him why he had wanted to be tied, A.F. replied that the applicant had repeatedly noted that he had to close business, and on the day in question he had said \u201cotherwise I will have to close\u201d.","16.On 23 January 2007, the Court of Magistrates, as a Court of Criminal Judicature, on the basis of the evidence in the case\u2011file, found the applicant not guilty of all the charges brought against him and acquitted him. It noted that there were two diametrically opposed versions (the applicant\u2019s and A.F.\u2019s), there was therefore a reasonable doubt which had to be resolved in favour of the applicant.","17.On 6 February 2007 the Attorney General (hereinafter the AG) appealed against that judgment.","18.By a judgment of 21 June 2007, the Court of Criminal Appeal varied, in part, the judgment of the Court of Magistrates.","19.It confirmed that there had not been any evidence concerning the charges of fraud relating to insurance and making a false oath, as well as concerning the charge of recidivism. The Court of Criminal Appeal noted that the applicant had consistently repeated during the interrogation that his insurance did not cover theft or money losses, and no proof had been adduced to discredit his statement to that effect. Nor had the applicant lied on oath as he had never made any statement before a judge or magistrate and neither had the prosecution submitted any judgments capable of showing recidivism in terms of law. Similarly, the charge of fabrication of false evidence had also not been proved, since no matter what the applicant had actually done, there had been no proof that he had done so with the intention to put the blame on an innocent third person.","20.However, the Court of Criminal Appeal found the applicant guilty of simulation of an offence under Article 110 (2) of the Criminal Code. It considered that there was direct evidence against the applicant, namely that from his accomplice (A.F.), who testified in the proceedings against the applicant (see paragraph 15 above). As to the testimony of an expert in relation to certain computer programs, found in the applicant\u2019s possession, the Court of Criminal Appeal considered that they had not shed any light on the alleged hold up per se. However, it also noted the witness testimony of the four police officers who had questioned the applicant and carried out investigative work, including searches on the site of the alleged hold\u2011up.","21.The Court of Criminal Appeal noted that in his first statement the applicant had denied the facts as submitted by A.F. and gave his version of the events of that day. He had stated that he was ready to repeat his version in court and that he had no difficulty to repeat it and to have it recorded on tape, as the applicant had requested. The applicant was then questioned in an interviewing room where he gave his detailed version of the alleged hold\u2011up, which was transcribed. The applicant was then confronted with A.F., who had said that he acted according to the applicant\u2019s will because he was forced to. A long series of questions ensued, where the police enquired about whether the applicant had been insured for the theft of money, the rent he paid, as well as about where and how certain items had been found, after having previously said that they had been stolen or thrown on the floor.","22.The Court of Criminal Appeal further noted that in his subsequent statement the applicant said that the video he had watched with the police officers had started on 9 October 2000 and ended on 24 October 2000. He could not confirm whether the video recorder was the same one which had been included in the system but he considered that the second tape inside was surely not the one he was recording on, on 29 January 2002. He did not know how many videos of the brand GYYR he had. According to the applicant the new ones used to be in the stores and others could be in the repair room or in another room. The Court of Criminal Appeal noted that the applicant had not mentioned any of this a day earlier, as according to the applicant he had no GYYR video except for the one included in the system. When he had been asked whether the CCTV worked, the applicant had responded that the last time he had needed to check something (at Christmas time), it had been functioning properly. He confirmed that he did not know where the things where and, in his view, this had been a frame up against him or against his company, by someone close to him or someone who had worked for him, or a competitor.","23.The Court of Criminal Appeal noted that the applicant had also testified before the first\u2011instance court about his local and international projects as well as the events of the day at issue. He had explained as follows:","24.A certain P.M.D. had left the shop at around 1.40 pm and, after that, two people wearing motorcycle helmets came into the shop and demanded money of him. He gave them his wallet which contained more than MTL1,000 (around EUR 2,300) and they had said that they wanted more. The applicant then gave them a suitcase with money in it, once they opened it they asked for the safe-deposit box while pointing a gun at the applicant\u2019s throat which left him speechless. They went downstairs; the applicant noticed that one of the two men knew his way. The applicant opened the wardrobe in which he kept a small safe-deposit box that he carried with him nearly every day and which weighed around fifteen kilograms. The men asked him to open it but he could not; thus one of the men took it and they then went back upstairs where the two men tied the applicant to a chair they had brought with them. He was tied with tape and could barely breathe. One of the two men went back downstairs and the applicant heard a loud noise. They then went back upstairs by which time there were four of them \u2013 the applicant had already noticed the other two men downstairs \u2013 and they started to close the curtains and the shutter of the main entrance. From the inside he saw two motorcycles and their drivers wearing helmets as well as a white van. He claimed that all four men had been wearing identical outfits, white crash helmets with tinted visors, green gloves and jeans jackets.","25.In cross-examination, the applicant claimed to have no suspicion about his employee (A.F.) who he did not want to harm. As to the latter\u2019s version, the applicant replied that everyone was entitled to an opinion. A.F. had testified twice although only his last statement had been added to the file. P.M.D. testified that he had been with the applicant and had left early in the afternoon, before the alleged hold-up.","26.The Court of Criminal Appeal considered that since there had been no proof of an insurance policy covering theft of money, there had been no motive. However, it noted that A.F.\u2019s version had been corroborated by, for example, the finding of certain objects in places indicated by A.F., which had been placed by the applicant himself, or by A.F. on orders from the applicant. Thus, according to the Court of Criminal Appeal, A.F.\u2019s testimony was enough to conclude that the applicant was guilty of simulation of offence. It was true that the applicant had repeatedly and categorically denied any wrongdoing; however, he was not reliable in the light of the evasive and hesitant way in which he replied to police questions concerning his business, profitability, rents, and profits of the previous year. The Court of Criminal Appeal also relied on other circumstances such as the fact that the CCTV did not record the events on the day of the alleged hold\u2011up. Such details raised doubt and made the applicant\u2019s version of events less plausible or acceptable. In the light of all the evidence it considered that the first court had wrongly acquitted the applicant. The Court of Criminal Appeal thus found the applicant guilty and sentenced him to one year\u2019s imprisonment, suspended for four years.","27.On 15 June 2011, the applicant filed an application before the Civil Court (First Hall), in its constitutional competence, complaining about a violation of Article 6 of the Convention on the basis that, inter alia, the Court of Criminal Appeal\u2019s judgment was based on statements given by the applicant to the police without the assistance of a lawyer.","28.By a judgment of 29 October 2012, the court rejected the applicant\u2019s complaints. The court recalled the first-instance judgment in the names of The Police vs Mark Lombardi (Civil Court (First Hall) in its constitutional competence, 9 October 2009) where it had been held that the mere fact that a person was not assisted by a lawyer during police interrogation did not violate an applicant\u2019s fundamental rights. It had also held that for there to be a violation of Article 6 of the Convention, one must consider the proceedings as a whole and not the statements in isolation. The court noted, however, that the first\u2011instance judgment in that case had been overturned by the Constitutional Court which, on 12 April 2011, found a violation of the rights of the individual concerned as the lack of legal assistance deprived objectively the applicant of a fair trial. However, the Constitutional Court in that judgment had also made it clear that the ECtHR\u2019s case\u2011law should not have retroactive effect and should not be applicable to judgments that had become res judicata \u2013 it had not been so in the case of Lombardi since proceedings had still been pending. The situation was different in the present case, which had ended. In conclusion, relying on the Constitutional Court\u2019s position on res judicata in the case of Lombardi, cited above, the court, in the instant case, dismissed the applicant\u2019s claim.","29.On 16 November 2012 the applicant appealed to the Constitutional Court, arguing that the Civil Court (First Hall) was wrong in finding that courts of constitutional competence did not have the function to assess what had happened in criminal proceedings that had become res judicata.","30.By a judgment of 5 April 2013, the Constitutional Court rejected the applicant\u2019s appeal.","31.The Constitutional Court held that although there may be circumstances where it could provide a remedy if it found that a statement was taken abusively despite the criminal proceedings having come to an end and the judgment having become res judicata, in the present case the applicant had given his statement on 2 February 2002. He had never alleged that the statement was taken abusively. Moreover, he had not even raised this complaint when filing the constitutional application on 15 June 2011. It was only on 23 March 2012, more than eleven years after making the statement, that the applicant requested a correction in the constitutional redress application to add the complaint concerning his statement, possibly because the applicant had become aware of the Court\u2019s judgment in Salduz v.Turkey ([GC], no. 36391\/02, ECHR 2008), of 27 November 2008, and realised that it could give him another means of defence. The Constitutional Court held that the fact that the applicant had never raised a complaint before the courts of criminal jurisdiction, when he had every opportunity to do so, was proof that he did not feel that this was of prejudice to him or that his statement was taken abusively. Thus, the applicant could not now, without abusing the judicial process, expect to reopen a closed case which had become res judicata, once he had not raised the issue previously. According to the Constitutional Court, it was also relevant that the Court of Criminal Appeal had not relied solely on the applicant\u2019s statement, but also on other means of corroboration. Consequently, in the Constitutional Court\u2019s view the applicant\u2019s statement was not determinative to the finding of guilt and the first\u2011instance court had been right not to disturb a judgment which had become res judicata.","32.The relevant domestic law and case\u2011law concerning constitutional redress proceedings is set out in Brincat and Others v. Malta (nos.60908\/11 and 4 others, \u00a7\u00a7 23-26, 24 July 2014) and Dimech v. Malta (no.34373\/13, \u00a726, 2 April 2015).","33.By Act III of 2002 the Maltese Parliament introduced the right to legal assistance at the pre-trial stage. However, the law only came into force in 2010 by means of Legal Notice 35 of 2010. Prior to this Legal Notice Maltese law did not provide for legal assistance during the pre\u2011trial investigation and specifically during questioning, whether by the police or by a magistrate in his investigative role. Before questioning, however, suspects would be cautioned, that is, informed of their right to remain silent and that anything they said could be taken down and produced as evidence. At the time no inferences could be drawn by the trial courts from the silence of the accused at this stage.","34.Statements taken by the police could be confirmed on oath before the Court of Magistrates, after arraignment, in which case the person was entitled to be assisted by a lawyer.","(a) Cases decided in 2011 - during the pendency of criminal proceedings against the complainants","35.In the wake of the judgment in Salduz, cited above, a number of accused persons raised constitutional complaints during the pendency of the criminal proceedings against them and requested the relevant criminal courts to make a referral to the constitutional jurisdictions. In 2011 three cases were decided by the Constitutional Court (in similar yet never identical formations of three judges), namely The Police vs Alvin Privitera of 11April 2011, ThePolice vs Esron Pullicino of 12 April 2011, and ThePolice vsMarkLombardi, also of 12 April 2011. In the three cases the Constitutional Court held that the claimants had suffered a breach of their right to a fair trial under Article 6 of the Convention in so far as they had not been legally assisted. The relevant details are as follows:","The Police vs Alvin Privitera, Constitutional Court judgment of 11 April 2011, upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature","36.The Constitutional Court confirmed that it should apply the Grand Chamber judgment in Salduz and the subsequent line of case-law. In particular it noted that, in order for the right to a fair trial to remain sufficiently \u201cpractical and effective\u201d, Article 6 \u00a7 1 required that, as a rule, access to a lawyer should be provided as from the first questioning of a suspect by the police. Even where compelling reasons might exceptionally justify denial of access to a lawyer, such restriction \u2013 whatever its justification \u2013 must not unduly prejudice the rights of the accused under Article6. The rights of the defence would in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer were used for a conviction. Given that the absence of a lawyer at the investigation stage could irretrievably prejudice the accused\u2019s right, the court considered that where there existed sufficient reasons indicating a violation, it should not wait for the end of the criminal proceedings in order to examine the merits of the case.","37.The Constitutional Court rejected the Government\u2019s plea that the applicant had not raised the issue until the prosecution had finished submitting evidence, noting that in the domestic legal system there was no deadline for raising constitutional claims. It found the Government\u2019s argument that the accused had not been forced to give a statement, and that he had been informed of his right to remain silent, to be irrelevant given the established case-law of the European Court of Human Rights and in particular the Salduz judgment.","38.It was not necessary in the case at hand to examine whether there existed any compelling reasons to justify the absence of a lawyer during questioning or whether such restrictions prejudiced the case, in so far as at the relevant time Maltese law had not provided for the right to legal assistance at that stage of the investigation and therefore there had been no need for the accused to request it. There had therefore been a systemic restriction on access to a lawyer under the relevant legal provision in force at the time. It followed that there had been a violation of Article 6 \u00a7 3 (c) in conjunction with Article 6 \u00a7 1.","39.The Constitutional Court further noted that in its view the right to be assisted by a lawyer must be granted from the very start of the investigation and before the person being investigated gave a statement, but it did not require that an accused be assisted during questioning.","40.The Constitutional Court did not order the statements to be expunged from the record of the proceedings, but it ordered that the Court of Criminal Judicature be informed of the said judgment so that it could decide accordingly on the validity and admissibility of the statement made.","The Police vs Esron Pullicino, judgment of 12 April 2011 upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature","41.The Constitutional Court reiterated the same reasoning applied in the case of Alvin Privitera, cited above, stopping short, however, of reiterating the court\u2019s opinion in relation to assistance during the actual questioning.","The Police vs Mark Lombardi, judgment of 12 April 2011 upholding a first\u2011instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature","42.The Constitutional Court reiterated the same reasoning applied in the cases of Alvin Privitera and Esron Pullicino, cited above. It further noted case-law subsequent to Salduz in which the Court had found a violation despite the fact that the applicant had remained silent while in police custody (Dayanan v. Turkey, no. 7377\/03, 13 October 2009) and despite there being no admission of guilt in the statements given by the applicants (Ye\u015filkaya v. Turkey, no. 59780\/00, 8 December 2009). In Boz v.Turkey (no.2039\/04, 9 February 2010) the Court had stressed that the systemic restriction of access to a lawyer pursuant to the relevant legal provisions breached Article 6. The Constitutional Court further referred to the finding in Cadder v.HerMajesty\u2019sAdvocate [2010] UKSC 43, which concerned the same situation in the Scottish legal system and where that court had agreed to follow Salduz to the letter.","43.The Constitutional Court stopped short of reiterating the court\u2019s opinion in Alvin Privitera in relation to assistance during the actual interrogation. It however added that Salduz should not apply retroactively to cases which had become res judicata this was not so in the present case given that the proceedings were still pending.","(b) Subsequent cases","44.Following the above\u2011mentioned judgments of 2011, the Constitutional Court abandoned the above described reasoning (to the effect that a systemic restriction resulted in an automatic breach of Article 6), and started to consider Salduz as an exceptional case and to interpret it to the effect that a number of factors had to be taken into consideration when assessing whether a breach of Article 6 had occurred. By way of example:","(i) Cases brought before the constitutional jurisdictions while the criminal proceedings were pending against the complainant","Charles Stephen Muscat vs the Attorney General, Constitutional Court judgment of 8October 2012","45.By a judgment of 10 October 2011 the Civil Court (First Hall) in its constitutional competence, dismissed an objection to the effect that the complaint was premature and found that the fact that the law precluded the accused from being legally assisted sufficed to find a violation. It thus ordered that his statements be expunged from the acts of the criminal proceedings.","46.In reply to the AG\u2019s argument that Mr Muscat had not raised his complaint earlier during the criminal proceedings (which were still pending) the court, relying on the Alvin Privitera case reiterated that the applicant was not subject to any time-limit to bring forward his complaint.","47.On appeal, by a judgment of 8 October 2012 the Constitutional Court reversed the first-instance judgment.","48.It accepted that prima facie it appeared premature to complain about a breach of the right to a fair trial due to a lack of legal assistance, solely on the basis of a statement made without such assistance at a time when a hearing was not yet held and the criminal proceedings were still pending. However, Maltese law (both the Constitution and the European Convention Act) provided for access to the constitutional jurisdictions in respect of fundamental rights complaints also when a breach is likely to occur. Thus, it could not reject the complaint as premature.","49.As to the merits it considered that its role was to determine whether the statement given in the absence of legal assistance amounted to a breach of the applicant\u2019s right given the trial as a whole, and whether there was a risk that the applicant be found guilty when he was in reality innocent. In the absence of such risk no breach would occur. Having examined the ECtHR case law from Imbrioscia v. Switzerland (24 November 1993, SeriesA no. 275) onwards, it noted, with particular reference to Salduz, that in Maltese law, at the relevant time, no inferences from silence could be made. Mr Muscat had been informed of his right to remain silent. He was a mature adult, who was already expiating a criminal sentence in prison. He had made his statement in 2002 while he had been in detention since 1994. He had had experience with questioning and was not vulnerable. Thus the factor (young age) present in the Pullicino and Privitera cases was missing.","50.The Constitutional Court further noted that Mr Muscat waited until 2010 to bring forward his complaint, and during such time he did not challenge the content of his statement. This signalled that he himself had not felt disadvantaged by the content of his statement. In any event MrMuscat was still to undergo trial with all the relevant procedural guarantees, and during which the judge could also decide to exclude the statement at issue if it could be shown that it had been given under threat or duress. It followed that the mere taking of the statement could not result in a breach of the right to a fair trial.","The Republic of Malta vs Alfred Camilleri Constitutional Court judgment of 12November 2012","51.In the particular circumstances of the case, the Constitutional Court found a violation of the accused\u2019s fair trial rights, in particular because he had not even been cautioned by the police. However, following a request for retrial which was upheld by a judgment of the Constitutional Court of 31January 2014, no violation was found because the accused, who had given a statement in the absence of a lawyer, had not been forced to reply to the questions put to him by the police, nor was he particularly vulnerable to the extent that he would have required the assistance of a lawyer. The accused was fifty-five years old and therefore mature. While he had never been to prison or been questioned, he had already been found guilty of minor charges and therefore was acquainted with the law. Lastly, his statement had not been the only evidence, as some police officers had been eyewitnesses to his handling of the drugs in issue.","The Police vs Tyron Fenech, Constitutional Court judgment of 22 February 2013","52.By a judgment of 23 January 2012, the Civil Court (First Hall) in its constitutional competence found, inter alia, a violation of the first applicant\u2019s right to a fair trial, as he had not had access to a lawyer before and during the police interrogation which led to his statement of a specific date. The same applied in respect of his other statement under oath before the magistrate, if made while under arrest. It considered that a person had just as much a right to legal assistance before making a statement to a judicial authority as he or she did before making a statement to the police.","53.The Constitutional Court reversed in part the first-instance judgment. Accepting that the case was not premature, and in the light of the criminal courts\u2019 referral pending criminal proceedings against Mr Fenech, it found that the Mr Fenech\u2019s right to a fair trial had been breached only in relation to the statement given to the police, but not the statement given before the magistrate, which could thus be admitted as evidence in the criminal proceedings against him.","54.It considered that a breach of the right to legal assistance during interrogation would occur when a statement was obtained by abuse and not solely because there was no lawyer present. The right to legal assistance was intended to protect persons in particular situations of vulnerability, weakness or fear who as a result of which made statements which led to a finding of guilt despite their innocence. Legal assistance in such cases prevented any such abuse and counteracted the vulnerability of the individual concerned.","55.Mr Fenech was only nineteen years of age at the time and may well have been vulnerable; however, someone other than a lawyer could have provided for such a guarantee, such as a magistrate (independent from the police), before whom the applicant made his second statement in accordance with domestic law. For these reasons the Constitutional Court upheld the Article 6 violation only in respect of the statement the applicant made to the police, which could not therefore be used in the criminal proceedings against him, but not in respect of the statement made before the inquiring magistrate, which could be used in the proceedings.","56.Similar conclusions were reached in The Police vsAmandaAgius, Constitutional Court judgment also of 22 February 2013.","The Republic of Malta vsCarmel Camilleri Constitutional Court judgment of 22February 2013","57.Mr Camilleri raised his constitutional complaint \u2011 about lack of assistance when he gave a statement at pre-trail stage - during the criminal proceedings against him, and the matter was referred to the constitutional jurisdictions.","58.By a judgment of 26 June 2012 the first-instance court found a violation of Article 6 in that respect, on the basis of the Salduz judgment, as well as the Constitutional Court judgment in the Privitera case (cited above).","59.On appeal the Constitutional Court reversed the first-instance judgment. It held that the right to a fair trial was violated when a statement was taken abusively and not merely because it was given without legal assistance. This had always been part of the right to a fair trial and had not been created by means of the Salduz judgment. Thus, any finding of a violation to this effect would not constitute a retroactive application of some new right created by jurisprudence. Relying on the Privitera case, it considered that it should not wait for the end of the criminal proceedings in order to examine the merits of the case. Moreover, in the present case, it was precisely the court hearing the criminal proceedings that had referred the matter to the constitutional jurisdictions, and that court had suspended proceedings awaiting this judgment.","60.However, Mr Camilleri did not fall under any category of vulnerability. Furthermore, it could not be said that he had had no access whatsoever to a lawyer, indeed in his first statement he had denied all wrong doing and walked away free. Thus, before he was voluntarily called in for questioning the following days he had all the time necessary to seek the assistance of a lawyer before he appeared voluntarily on three subsequent days where he gave three statements. His statement had also been corroborated by other evidence, there was thus no risk that they were unsafe \u2011 in that light it would not be appropriate to expunge such statements.","(ii) cases brought before the constitutional jurisdictions after the criminal proceedings had come to an end","Simon Xuereb vs the Attorney General, Constitutional Court judgment of 28 June 2012","61.The Constitutional Court considered that the case was different from the three 2011 judgments (mentioned-above) relied upon by the applicant, in so far as those cases had concerned proceedings which were still pending, while the case of Mr Xuereb concerned a judgment which had become final.","62.The Constitutional Court noted that in 2001 Mr Xuereb had been cautioned, that is, informed of his right to remain silent and that anything he said could be taken down and produced as evidence, and yet he chose to make a statement. At the time Maltese law did not provide for the assistance of a lawyer and the Salduz judgment had not yet been delivered. It followed that Mr Xuereb could not complain about that matter. Moreover, the finding of guilt would not have been based solely on his incriminating statement, because there existed various other evidence. Furthermore, he chose to admit to the crimes and settle for a plea bargain. Thus, given his actions during those proceedings he could not now complain of a breach of his rights. It further referred to its established practice based on English case\u2011law to the effect that the retrospective effect of a judicial decision is excluded from cases that have been finally determined.","Joseph Bu\u0121eja vs the Attorney General, first-instance judgment of an unspecified date in 2012 confirmed on appeal on 14 January 2013","63.In its judgment the first-instance court of constitutional competence referred to the [then] recent judgments of the Constitutional Court and held that, firstly, the right to legal assistance was not created by recent jurisprudence of the Constitutional Court. The right existed already at the time when criminal proceedings against Mr Bu\u0121eja were still ongoing and if the latter had not invoked that right at the opportune moment, he could not invoke it almost two years after the final judgment of the Court of Magistrates. The court also noted that after Mr Bu\u0121eja released his statement he had had every opportunity to contest it. During the criminal proceedings he had only contested that his statement did not reflect the truth and he testified again to give another version which he claimed was the truth. At no point had he alleged that he had been coerced to sign such statement or that the statement had breached his fundamental human rights. Moreover, he had not even appealed the judgment of the Court of Magistrates.","64.Secondly, the court also considered that the judgment handed down by the Court of Magistrates was not based solely or principally on MrBu\u0121eja\u2019s statement but on other circumstances which made his involvement in the crime evident. Further, the court referred the Lombardi case decided by the Constitutional Court which held that the jurisprudence of the ECtHR should not be applied retrospectively and affect those judgments which were today res judicata and it referred to the UnitedKingdom jurisprudence which held that the retrospective effect of a judicial decision was excluded from cases that have been finally determined. Hence, the court rejected the application.","65.On 14 January 2013, the outcome of the judgment was confirmed by the Constitutional Court. The latter held, inter alia, that the fact that the MrBu\u0121eja had not raised the issue during criminal proceedings (despite the Salduz judgment having been delivered before) did not mean that the applicant could not raise the issue before the constitutional jurisdictions. However, it showed that in the claimant\u2019s own view the matter had had no serious consequences and was simply a formal failing \u2011 to the extent that in the Constitutional Court\u2019s view this amounted to abuse of process. Similarly, Mr Bu\u0121eja had not appealed the criminal judgment, meaning he had not felt aggrieved. He had only opted to raise the issue after hearing about various judgments of the domestic courts and the ECtHR and thought he could obtain a get-out-of-jail-free card.","66.The Constitutional Court reiterated that the right to legal assistance was not intended to create a formality, which, if not observed, provided the accused with a means to avoid conviction. Before the introduction of Article355 AT the right to legal assistance was part and parcel of the right to a fair hearing, intended to protect persons who as a result of a particular vulnerability might have given statements as a result of which they could be found to be guilty when in reality they were innocent. In various domestic and ECtHR cases violations had been found in the cases of minors. In the present case, the applicant was neither a minor nor suffering from any other vulnerability, nor had he complained that the statement had been made under duress. Moreover, referring to the Salduz judgment, it recalled that under domestic law as stood at the relevant time, no inferences could be made from silence, thus the applicant could have chosen to remain silent. Furthermore, the applicant had been found guilty not only on the basis of his statement but also on other statements of eye witnesses.","George Pace vs Attorney General and Commissioner of Police, Constitutional Court judgment of 31 October 2014","67.By a judgment of 9 April 2014 the Civil Court (First Hall) rejected his complaint, noting that Mr Pace had been questioned fifteen years after the murder, and thus had had plenty of time to seek legal advice. Moreover, he only complained about the matter in 2011, despite him having been questioned in 2004 and the Salduz judgment having been delivered in 2008.","68.By a judgment of 31 October 2014 the Constitutional Court rejected MrPace\u2019s appeal. It noted, inter alia, that it was true that it was still open to the applicant to raise his complaint despite the passage of time. Nevertheless, the court could draw other conclusions as a result, such as those related to credibility. Indeed had the statement been taken under duress the applicant would have raised the matter prior to 2011, it was thus likely that Mr Pace was solely trying to take advantage of the evolution of the ECtHR case-law. It considered that to determine the fairness of the proceedings they had to be taken as a whole, on the facts of the case it did not appear to be so in the present case where Mr Pace did not object to the presentation of his statements to the jurors during the criminal proceedings, to the contrary he noted that he was not challenging the validity of the second statement, which showed that the applicant had not felt prejudiced by his statements, which had been reiterated before the Court of Magistrates. Moreover, his statements had not been the only evidence against him.","(iii) Other case-law","Gregory Robert Eyre vs the Attorney General, judgment of the Civil Court (First Hall) in its constitutional competence of 27 June 2012 (final)","69.On 25 August 2005, the Court of Criminal Appeal had found MrEyre guilty of committing drug related offences. Subsequently, on 14October 2011, he filed an application before the Civil Court (First Hall) in its constitutional competence claiming that his case was based on the incriminating statements he had given to the Police at a time when he was not yet being legally assisted.","70.Referring to the Lombardi case, the court reiterated the principle that the retrospective effect of a judicial decision is excluded from cases that had been finally determined. In the light of this principle as well as other principles emanating from the judgments of the Constitutional Court and the ECtHR, the court went on to consider that the finding of guilt was not solely based on Mr Eyre\u2019s statements to the Police at a time when he had no legal assistance. Mr Eyre had also sworn his statement before a Magistrate in the presence of his lawyer and he had admitted his guilt. Moreover on appeal, he asked the Court of Criminal Appeal to confirm his guilty plea, and vary other parts of the judgment. In the light of all those circumstances, the court held that Mr Eyre\u2019s allegations were unfounded and rejected his pleas.","71.There was no appeal from the judgement.","Matthew Lanzon vs Commissioner of Police, Constitutional Court judgment of 25February 2013","72.Mr Lanzon had been charged with trafficking in cannabis in 2001 \u2011 at the time he was aged sixteen. Thus, pending his criminal proceedings, he complained before the constitutional jurisdictions about the lack of assistance of a lawyer and by a final judgment of 29 November 2004 his complaint was rejected by the Constitutional Court on the basis that his arrest and questioning were lawful, had lasted a few hours and the applicant had had the right to remain silent.","73.By means of another application lodged in 2011, whilst the criminal proceedings against him were still pending, he once again brought the same complaint before the constitutional jurisdictions. By a judgment of 11November 2011 the application was rejected as being res judicata, his complaint being identical to that already decided by the Constitutional Court in 2004. It reiterated that jurisprudential change could not have a retroactive application. The judgment was confirmed by the Constitutional Court on 25 February 2013, noting that the Constitutional Court judgment of 2004 had already decided the matter which could not be altered due to the Salduz judgment which was decided four years later."],"138":["5.Details of the applicants can be found in the appendix.","6.At the time of the events giving rise to the applications, the applicants were all serving prison sentences in the Edirne F-type Prison.","7.On 21 June 2005 the disciplinary board of the Edirne F-Type Prison decided to intercept letters sent by an association, D.D. (\u201cthe association\u201d), to the applicants on the ground that their content included propaganda for an illegal organisation and referred to activities in support of the illegal organisation and of people on a \u201cfast to the death\u201d.","8.On 28 June 2005 the Edirne Enforcement Court dismissed an objection lodged by the second applicant against that decision.","9.On 18 July 2005 the Edirne Assize Court upheld the Edirne Enforcement Court\u2019s decision.","10.The applicants lodged an initial individual application with the Court (no. 45443\/05) raising substantive complaints under the Convention, which was subsequently declared inadmissible on 12 October 2017 under the single-judge procedure.","11.On 14 September 2005 Mr Tamer, the applicants\u2019 lawyer at the material time, sent a letter to the applicants asking them to fill out and sign the forms of authority that were enclosed with the letter, to authorise him to lodge an application on their behalf with the Court concerning the disciplinary board\u2019s decision to intercept the letters sent by the association (see paragraph 7 above). He explained that he was sending his letter by registered mail because he had not received a reply to his previous letter with the same content. He also mentioned that the forms of authority were not required by the Court immediately on bringing an application and that they could be submitted at a later stage. In addition, he asked the applicants to inform him in the event that they did not want to pursue their application before the Court.","12.The administration of the Edirne F-Type Prison believed the contents of the letter of 14 September 2005 to be suspect and therefore lodged a request with the public prosecutor on 21 September 2005 for a decision to refer the matter to an enforcement court to determine whether the material sent to the applicants included objectionable content.","13.On 25 October 2005 the Edirne Enforcement Court allowed an application by the prosecutor and examined the contents of the letter. It decided that, under section 5 of Law no. 5351, the letter and the forms of authority should not be handed over to the applicants because it considered that Mr Tamer\u2019s request for the applicants to complete the forms of authority for the purpose of bringing an application before the Court did not constitute a permitted professional activity (serbest \u00e7al\u0131\u015fma hayat\u0131na ayk\u0131r\u0131l\u0131k) but instead pressurised and incited the applicants to institute proceedings. The decision was served on the applicants on 17 November 2005.","14.On 29 November 2005 the Edirne Assize Court dismissed an objection lodged by the second, fourth and fifth applicants and upheld the Edirne Enforcement Court\u2019s decision of 25 October 2005.","15.On 1 December 2005 Mr Tamer filed a complaint with the Edirne Chief Public Prosecutor\u2019s Office against the governor of the Edirne F-Type Prison on the ground that he had neglected his official duties by not forwarding Mr Tamer\u2019s letter of 14 September 2005 to the applicants.","16.On 26 December 2005 the Edirne Chief Prosecutor\u2019s office decided not to prosecute the governor in relation to Mr Tamer\u2019s complaints, since the letter in question had been withheld from the applicants as a result of the implementation of the Edirne Enforcement Court\u2019s decision of 25 October 2005.","17.An objection to the prosecutor\u2019s decision, lodged by Mr Tamer, was dismissed by the K\u0131rklareli Assize Court on 19 April 2006.","18.In the meantime, on 23 November 2005 Mr Tamer wrote to the Committee of Ministers of the Council of Europe informing it that the Edirne F-Type Prison administration\u2019s refusal to give the applicants the letter in question had impaired his ability to lodge an application with the Court and constituted a violation of the European Agreement relating to Persons Participating in Proceedings of the European Court of Human Rights.","19.On 22 February 2006 the Registry of the Court sent a letter to MrTamer acknowledging receipt of his letter dated 23 November 2005, addressed to the Committee of Ministers of the Council of Europe, as indicating the applicants\u2019 intention to lodge an application with the Court and invited him to submit a duly completed application form.","20.On 19 October 2006 the applicants\u2019 representative sent an application form to the Court. Their application was registered as application no.4536\/06.","21.On 30 March 2007 the Registry of the Court sent a standard letter to the applicants\u2019 representative in connection with application no. 4536\/06 confirming, inter alia, receipt of their application and requesting the representative to provide forms of authority in connection with that application.","22.On 18 April 2007 the applicants\u2019 representative sent a copy of the Court\u2019s letter together with forms of authority to the applicants and requested them to fill out the forms of authority in connection with application no. 4536\/06.","23.The Edirne F-Type Prison administration believed the contents of the letter of 18 April 2007 to be suspect and therefore lodged a request with the public prosecutor on 24 April 2007 for a decision to refer the letter to an enforcement court to determine whether the material being sent to the applicants included objectionable content.","24.On 9 May 2007 the Edirne Enforcement Court allowed an application by the prosecutor and examined the contents of the letter. It decided that, under section 5 of Law no. 5351, the letter enclosing the forms of authority should not be handed over to the applicants, on the same grounds as those given in its previous decision dated 25 October 2005. The decision was served on the applicants on 18 May 2007.","25.On 1 June 2007 the Edirne Assize Court dismissed an objection lodged by the second and fourth applicants and upheld the Edirne Enforcement Court\u2019s decision.","26.On 21 November 2007 the applicants\u2019 representative lodged another application with the Court, complaining that the decision of 9 May 2007 had violated the applicants\u2019 right to effectively pursue their application with the Court. Their application was registered as application no. 53287\/07.","27.All the applicants submitted forms of authority in respect of each of the present applications to the Court on 5 April and 21 October 2010 respectively.","1.Law no. 5275 on the enforcement of sentences and preventive measures, as amended by Law no. 5351","28.The relevant provisions of Law no. 5275 on the enforcement of sentences and preventive measures as in force at the material time provided as follows:","Section 59 \u2013 Right to consultation with a lawyer or a notary","\u201c...","(2)Consultation with a lawyer or a notary may be carried out in working hours except for weekends and public holidays, in a place reserved for that purpose within the sight but not hearing of officials.","...","(4)[as amended by section 5 of Law no. 5351] A lawyer\u2019s documents and files related to defence and his or her records of the meetings with his or her client shall not be subject to examination. However, if it emerges from documents or other evidence that visits by lawyers to a person convicted of the offences set out in section 220 of the Criminal Code or sub-chapters 4 and 5 of Chapter 2 of the Criminal Code are serving as a means of communication with a terrorist organisation or of committing a crime or otherwise jeopardising the security of the prison, the enforcement court may, at the application of the prosecution, impose [the following measures]: presence of an official during the lawyer\u2019s visits; verification of documents exchanged between the prisoner and his or her lawyers during such visits; and\/or confiscation of all or some of these documents by the judge.","...\u201d","Section 68 \u2013 Right to send and receive letters, faxes and telegrams","\u201c(1)With the exception of the restrictions set forth in this section, convicted prisoners shall have the right, at their own expense, to send and receive letters, faxes and telegrams.","(2)The letters, faxes and telegrams sent or received by prisoners shall be monitored by the reading committee in those prisons that have such a body, or, in those which do not, by the highest authority in the prison.","(3)If letters, faxes and telegrams to prisoners are a threat to order and security in the prison, single out serving officials as targets, permit communication with terrorist or criminal organisations, contain false or misleading information likely to cause panic in individuals or institutions, or contain threats or insults, they shall not be forwarded to the addressee.","Nor shall [letters, faxes and telegrams of the type described above] written by prisoners be dispatched.","(4)Letters, faxes and telegrams sent by prisoners to authorities or to lawyers for the purpose of their defence are not subject to monitoring. \u201d","2.Prison Regulations","29.Details of the relevant provisions of the prison regulations in force at the material time can be found in Tan v. Turkey (no. 9460\/03, \u00a7\u00a7 13-14, 3July 2007) and Mehmet Nuri \u00d6zen and Others v. Turkey (nos. 15672\/08 and 10 others, \u00a7\u00a730-34, 11 January 2011).","30.Section 55 sets out a prohibition on legal advertising as follows:","\u201cLawyers are prohibited from advertising or engaging in any conduct which may be regarded as soliciting for the purpose of offering their services ...\u201d","31.Article 3 of the European Agreement relating to Persons Participating in Proceedings of the European Court of Human Rights, ratified by Turkey on 6 October 2004 and in force as of 1 December 2004, reads as follows:","\u201c1.The Contracting Parties shall respect the right of the persons referred to in paragraph1 of Article 1 of this Agreement to correspond freely with the Commission and the Court.","2.As regards persons under detention, the exercise of this right shall in particular imply that:","(a)if their correspondence is examined by the competent authorities, its despatch and delivery shall nevertheless take place without undue delay and without alteration;","(b)such persons shall not be subject to disciplinary measures in any form on account of any communication sent through the proper channels to the Commission or the Court;","(c)such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Commission, or any proceedings resulting therefrom.","3.In application of the preceding paragraphs, there shall be no interference by a public authority except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, for the detection or prosecution of a criminal offence or for the protection of health.\u201d"],"139":["8.The applicants were born in 2001 and 1967 respectively and live in Bucharest.","A.The applicants\u2019 background","9.The first applicant is the second applicant\u2019s son.","10.The first applicant has spastic quadriplegia, a medical condition characterised by impaired function in the limbs but which does not affect his mental capacities. From the age of one, he was registered as having a severe disability (grad de handicap sever) requiring a personal assistant.","11.Owing to his disability, the first applicant has undergone complex and ongoing medical treatment aimed at maintaining the mobility of his limbs and compensating for abnormalities in muscle tone. He has undergone regular surgery, has been admitted on several occasions to rehabilitation clinics in Romania and Ukraine, has undergone neurological and orthopaedic tests in Israel and is under constant physiotherapy. He relies on assistive devices to walk, including electric wheelchairs, mopeds and tricycles. His health is monitored at M.C. Children\u2019s Hospital in Bucharest. In January 2011 the first applicant underwent significant surgical interventions which left him wheelchair-bound.","12.The second applicant is a single parent and sole breadwinner.","13.When the first applicant reached school age, the authorities assessed his situation and recommended that he attend a mainstream school (report of 25October2007, see paragraph 35 below). The recommendation was maintained in all subsequent assessments.","14.On 8 February 2013 the Bucharest Directorate General for Social Welfare and Child Protection (Direc\u0163ia General\u0103 de Asisten\u0163\u0103 Social\u0103 \u015fi Protec\u0163ia Copilului, \u201cthe child protection authority\u201d) drafted a plan for the first applicant\u2019s physical rehabilitation. It listed the rights provided for by law, such as the right to special allowances, free public transport, parking in spaces reserved for people with disabilities, physiotherapy, and special arrangements at school such as a specially adapted curriculum and methods of testing, appropriate physical education, appropriate facilities in the school building to ensure accessibility, and assistance from a school nurse. It recommended that a personal assistant be hired by its Human Resources Department and that the accessibility of public infrastructure be improved (accessibility of kerbs, pedestrian crossings and pathways, public transport stations and parks).","15.The first applicant attended several schools:","(a)In 2004 the first applicant was enrolled in nursery school but, according to the second applicant, he was forced to leave after only threedays, when the school manager informed the mother that her institution \u201c[did] not do handicap\u201d.","(b)From 2007 to April 2013 the first applicant attended classes at school no.131, a mainstream educational facility for primary and secondary education (children aged six to fourteen). The school building was located sixtymetres from the applicants\u2019 home. The applicants argued that the school did not offer adequate conditions despite the authorities\u2019 reassurance and the applicants\u2019 continuous efforts.","(c)In the academic year 2013\/14 the first applicant attended school no.148 where, according to the applicants\u2019 submissions, the conditions and the support were acceptable.","(d)In October 2015 he started classes in \u201cMihai Eminescu\u201d High School (\u201cM.E.School\u201d) where he remained until 2017. The applicants complained about the conditions in this school.","(e)On 30 August 2017 the first applicant moved to a private school for the second-last year of high school. In April 2018, the date of the latest communication to the Court from the applicants, he was still attending this school.","B.Accessibility of school premises","1.The applicants\u2019 version","(a)School no. 131","16.The applicants\u2019 description of the situation concerns the academic years2011\/12 and 2012\/13. When the first applicant started school, the school building had no facilities for disabled students. A new gate had to be pierced in the fence facing the street where the applicants lived and a concrete strip was laid leading to the students\u2019 entrance in the main building. The toilets were not equipped for disabled children and a cubicle was improvised in the girls\u2019 toilet on the first floor. Later, in 2013, a special toilet on the ground floor was equipped for the needs of children with disabilities, but the first applicant still required support when using it. The sports facilities were not adapted for the use of disabled children and the first applicant could neither take part in class sports activities nor do the exercises recommended by his physicians in order to help with his muscle tone.","17.The second applicant alleged that, at her own expense, she had arranged for small adjustments to be made to the classroom and toilet, such as rails on the walls, to facilitate her son\u2019s movements.","18.Because there were no access ramps in the school, the first applicant could not on his own reach the upper floors of the building, where some important facilities were located such as the doctor\u2019s office, the psychologist\u2019s office, the laboratories and the after-school care facilities. The second applicant had to spend significant amounts of time at the school carrying him and the walking devices to the upper floors, and helping him go to the toilet, do the mandatory physical exercise recommended by his physicians and carry his school books, lunchbox and other items. In the first applicant\u2019s first four years at school, in addition to his mother\u2019s support, his classmates or the school staff also helped him with some of these tasks.","19.The absence of adequate medical personnel at the school and the lack of access to medical facilities during school hours contributed to the worsening of the first applicant\u2019s physical condition. The benefits he gained from surgery were lost and he became less autonomous and more reliant on support from others.","20.Because of the lack of accessibility of public buildings, the first applicant could not be included in some of the school activities, such as outings. No alternative activities were provided for him. The second applicant\u2019s attempts to have extracurricular activities arranged for her son remained futile; for example, although the child was admitted to piano lessons, the building housing the piano club was inaccessible to wheelchairs.","21.In time the situation generated tensions between, on the one hand, the applicants and, on the other hand, the school staff, the other children and their parents.","(b)M.E. School","22.According to the applicants, the school building was not adapted for the needs of children with disabilities and its premises remained mostly inaccessible. In the absence of any support in school, the secondapplicant had to physically carry her son on a daily basis around the school building and to the upper floors where the science laboratory and the gym were situated. The school also failed to provide for his basic needs such as personal and intimate care, feeding and moving around. He was often abandoned unassisted in the school corridors.","23.The applicants submitted that during the first applicant\u2019s stay in M.E.School, the authorities had failed to devise and implement an individualised educational plan. The teaching, testing and curriculum had not been adapted to his situation and some of the school teachers had openly refused to adapt their routine to his needs or had asked that he be sent to a special school, an attitude which had been tolerated by the school administration.","2.The Government\u2019s version","(a)School no. 131","24.Based on the information provided by the management of school no.131 and the local administration, the Government gave a different account of the situation. They explained that from the time of his enrolment in the school, the needs of the first applicant had always been taken into account.","25.In September 2008 the school administration contacted the Bucharest Schools Inspectorate (Inspectoratul \u015ecolar al Municipiului Bucure\u015fti, \u201cthe ISMB\u201d), in order to seek financial help to adapt the school premises to the first applicant\u2019s needs.","26.During 2012 and 2013 the school buildings were rendered more accessible to wheelchairs. In particular, an access ramp was installed; onetoilet cubicle was equipped with an alarm bell linked directly to the school secretariat; the yard was asphalted; the nurse\u2019s office was moved to the ground floor, next to the first applicant\u2019s classroom; the first applicant was provided with specially adapted desks in the classroom; and an air-conditioning unit was placed in the classroom.","27.On 7 April 2014 an ISMB internal audit concluded, after verifying the school documents, that the entire cost of the work had been met from the school\u2019s budget.","28.The first applicant was able to use the toilet facilities but because of the deterioration of his general health he was sometimes unable to reach the toilets on time. The school personnel helped with all aspects of his personal and intimate care and offered fresh clothes when his mother did not want to provide clean changes.","29.The child did not return to school after 3 April 2013 (see paragraph69 below). From the official documents it appears that from 7 to 24May2013 the first applicant received medical treatment in B\u0103ile Felix Hospital and attended classes in the nearby Oradea School Centre for Inclusive Education. According to the Government, the second applicant did not inform the administration of school no. 131 about this situation and continued to complain that she and her son were being denied access to the school premises.","(b)M.E. School","30.Starting with the 2015\/16 school year the first applicant attended classes in M.E. School. At that time, the building was partially accessible: it was equipped with an access ramp, had classrooms on the ground floor, and had access in the yard for a specially adapted car.","31.On 9 September 2015, as soon as it was informed of the first applicant\u2019s transfer, the M.E. School administration asked the local authorities for help in installing an accessible toilet and a lift, acquiring a computer with specially adapted software, and creating a medical office and a library on the ground floor.","32.According to the information provided by the authorities, in March2016 the school building had two access ramps, tworeserved parking places for people with disabilities, a classroom on the ground floor, and a specially adapted desk in the first applicant\u2019s classroom.","33.The school was unable to negotiate the acquisition of a lift during the 2015\/16 school year. According to the information presented by the local authorities, the second applicant refused several options proposed to her. Eventually, the school administration managed to purchase a stairlift which was installed on 21 November 2016. On the same day the school personnel were trained in how to operate it.","34.On several occasions the second applicant brought her son into school without a wheelchair by carrying him on her back (on 3-5February and on 3 and 18 March 2016) and left him without any means of moving around the school premises. According to the Government, at that time the school was accessible with a wheelchair, the first applicant had a specially adapted desk in his classroom and his transport to and from school was taken care of by the foundation \u201cMotivation\u201d. On other occasions the second applicant refused to let the child stay in school as he did not have a personal assistant.","C.Educational support in school","1.School no. 131","35.On 25 October 2007 the child protection authority recommended that the first applicant attend classes in school no. 131 and be given the assistance of a support teacher (professor de sprijin). The recommendation was reiterated on 25 August 2011 in relation to secondary education.","36.The school adapted the timetable and testing methods to the first applicant\u2019s needs. The child was entitled to a 50% increase in the time allotted for written exams and was partly exempted from attending school. In addition, the school offered the first applicant the possibility to attend classes via Skype during periods when he needed to be away from school for medical reasons.","2.M.E. School","37.From 22 September 2015 M.A. was assigned as a support teacher for the first applicant. On 7 December 2015 M.A. drafted a personal intervention plan detailing the subjects that the first applicant would take in school and the specially adapted teaching methods. On the same day M.A. informed her superiors of the difficulties she had with the second applicant, who had asked her not to work with her son and had tried to dictate to her which subjects to exclude from her son\u2019s curriculum.","38.On 11 December 2015 M.A. was replaced by D.C., who on 4March2016 presented a new intervention plan which was accepted by the majority of the first applicant\u2019s teachers. D.C. continued to assist the first applicant in the school year 2016\/17, and on 15 September 2016 drafted a new intervention plan which was accepted by most of the teachers. According to the documents in the file, the second applicant refused any communication with D.C. and did not participate in any of the meetings organised by D.C. with the school staff in order to discuss the first applicant\u2019s development and needs.","39.After the adoption of decision no. 913 of 25 July 2016 (see paragraph63 below), the authorities put in place a system for providing the first applicant with support and assistance in school. Specifically, in September2016 the child protection authority designated for this task several professionals working in a centre for abused children who had experience in working with children. According to the Government, they encountered difficulties with the second applicant, who on occasions refused to leave the child at school, refused to explain the reason for his absence or verbally abused the representatives of the child protection authority.","40.The first applicant did not attend school daily and was absent on several occasions, sometimes for long periods of time. He also attended other schools in the towns where he was hospitalised for treatment or rehabilitation. According to the report drafted by the support teacher, the first applicant\u2019s long absences from school, as well as the second applicant\u2019s attitude, had a negative impact on the first applicant\u2019s education.","D.Therapy in school","1.School no. 131","41.The first applicant\u2019s physicians set out recommendations for the school and other authorities regarding the child\u2019s medical needs, emphasising the importance of regular physiotherapy and occupational therapy, including during school hours. They advised against keeping the patient in the same position for long periods of time, as that could cause muscle rigidity and discomfort, thus compromising his rehabilitation and, in time, leading to deformities. They recommended that the child alternate periodically between sitting and standing up.","42.In November 2012 a physiotherapist was assigned to come to the school to work with the first applicant, and the school reserved a space in the gym room for the physiotherapy sessions. During the second term of the 2012\/13 school year, the physiotherapist and the first applicant met for threesessions of one hour each.","43.At the beginning of the 2011\/12 school year the school requested that it be provided with a physiotherapist, a nurse and a medical assistant.","44.It appears from the information provided by the Government that the second applicant failed to provide the school with the medical information concerning the first applicant\u2019s needs in terms of physical recuperation. The physical education teacher created a special programme for the child despite not being acquainted with the precise medical recommendations. The second applicant refused to bring the child to his sessions.","45.The school also arranged psychological counselling for the applicants, which was not pursued as the second applicant stopped bringing the child to the meetings.","2.M.E. School","46.During the 2015\/16 school year the first applicant received weekly sessions of speech therapy and educational therapy during the periods when he attended school. In the next school year the sessions were discontinued because the second applicant refused to give her assent.","47.The first applicant could not receive physiotherapy in school as his mother refused to allow him to participate in any session which did not take place in the school gymnasium. She also omitted to present the medical certificates that were required in order for the therapist to adapt the sessions to the first applicant\u2019s needs.","E.Personal assistant","48.In 2011 the second applicant asked the authorities to appoint a personal assistant for her son to provide him with support, in particular during school hours. She explained that she could not act as his personal assistant as she had to work for a living. On 15 September 2011 the school administration also informed the child protection authority that in the absence of a personal assistant the first applicant could not safely continue his studies in a mainstream school.","49.According to the applicants, the child protection authority initially denied that the first applicant had the right to a personal assistant, then considered the second applicant to be the child\u2019s personal assistant.","50.In a judgment of 19 July 2011 (case no. 8249\/3\/2011), the Bucharest County Court (hereinafter \u201cthe County Court\u201d) partly allowed an action brought by the second applicant against various authorities concerning the manner in which they had dealt with her son\u2019s situation. The court observed that the rehabilitation plan had not been drawn up in accordance with the legal requirements, in particular because the second applicant had not been involved in the process and the plan had not included all the services required by the child and had not taken into account his particular needs. It therefore ordered the child protection authority to supplement the plan according to the court\u2019s instructions. Furthermore, the court noted that it was not objectively impossible for the authorities to hire a personal assistant for the first applicant. It therefore ordered the child protection authority to identify a suitable person and to make a proposal to the city council, which in turn was ordered to provide the necessary funds from its budget to cover the salary of the personal assistant. The decision was upheld by the Bucharest Court of Appeal in a final decision of 9 April 2012.","51.On 19 October 2011 the second applicant asked school no. 131 to hire a nurse who could assist her son with his needs, as an alternative to the appointment of a personal assistant, but no such appointment was made during the first applicant\u2019s stay in this school (see paragraph 15 above).","52.According to the information transmitted by the Government, between 2011 and 2014 the child protection authorities organised several interviews in order to find a suitable personal assistant for the first applicant. Eventually, on 23 May 2014 the child protection authority hired a personal assistant. On 17 September 2014 that person resigned, on the ground that the second applicant had asked her to perform tasks which were not consistent with her job description.","53.On 29 January 2015 the second applicant informed the authorities that she insisted that a personal assistant be hired. Threeindividuals expressed an interest in the position and were approved by the second applicant. However, one refused to sign the contract as he considered the second applicant\u2019s attitude towards him to be abusive and offensive; he explained that the second applicant had asked him to wash dishes and clean the house, tasks which had not been in his job description, and had then accused him of wanting to harm her son. The other candidates took the job on a part-time basis starting on 1 September 2015. One had to leave on 16December2015 as his visa was not extended, and the other resigned for health reasons on 27 January 2016.","54.In January 2016 the authorities started the process of finding a new personal assistant, working in close contact with various non-governmental organisations involved in the protection of disabled persons.","F.Complaints and litigation","55.The second applicant lodged several complaints with the administrative authorities, with the National Council against Discrimination (Consiliul Na\u0163ional pentru Combaterea Discrimin\u0103rii, \u201cthe NCAD\u201d) (at least six cases lodged directly with this authority and continued before the courts), with the courts (at least five applications lodged directly with the courts) and with the prosecutor\u2019s office (at least sixteen complaints have been investigated so far by the prosecutor\u2019s office). These complaints mainly concerned the alleged lack of services for her son, both in school and outside school, and the manner in which the competent authorities handling his case had discharged their obligation to support the first applicant and to adapt the infrastructure to the needs of people with disabilities, and in particular to the first applicant\u2019s needs.","1.Request for a performance order (court case no. 14001\/3\/2014)","56.The case concerned an application lodged by the applicants on 24April2014  against the authorities with responsibility for assisting the applicants with matters concerning disability and education, namely the Bucharest Centre for Resources and Educational Assistance (Centrul Municipiului Bucure\u015fti de Resurse \u015fi Asisten\u0163\u0103 Educa\u0163ional\u0103, \u201cthe CMBRAE\u201d), the Bucharest local council of the fourth precinct, which was responsible for M.E. School (\u201cthe Bucharest IV local council\u201d), the Bucharest local council of the fifth precinct, which was responsible for school no. 131 (\u201cthe Bucharest V local council\u201d), the child protection authority, the Commission for Child Protection (an authority created at local level under Law no. 272\/2004 on the protection and promotion of children\u2019s rights), the ISMB, and the NCAD. The applicants sought to compel these authorities to re-evaluate the first applicant\u2019s educational placement, to provide support in school, to adapt the school premises to the first applicant\u2019s needs, and to grant compensation for the harm suffered by the child in school.","57.On 30 June 2014 and 13 and 20 August 2015 the applicants extended their action and on the last-mentioned date asked the court to ensure that the same hardship would not continue also in M.E. School. On 25November2014 the Administrative Disputes Division of the County Court sent the case to the Civil Division of the same court and on 23June2015 the case was sent to a bench of the Civil Division specialising in children\u2019s rights.","58.In a decision of 10 June 2016 the County Court found partly in favour of the applicants and ordered the local authorities to take several actions, in accordance with their remit:","(a)It ordered the CMBRAE to issue a new personalised intervention plan (plan de interven\u0163ie personalizat); it also noted that the first applicant was already allowed extended work time during tests in class and had a specially adapted desk, but considered that those measures, while being necessary, were not sufficient.","(b)The court ordered the CMBRAE and the ISMB to adapt the school curriculum and the educational plans to the first applicant\u2019s needs, finding as follows:","\u201cWhile in the special education [curriculum] the educational plans and school curriculum are tailored to the type and degree of disability, thus allowing time for therapy ..., in mainstream schools this kind of adaptation does not exist.","However, in the present case the child, who was placed in a mainstream school, has a normally developed intellect but has a neuromotor disability which drastically limits his movement ... A daily school programme of 6-7 hours goes against the medical recommendations ... and limits his opportunities to undergo therapy.\u201d","(c)It ordered the ISMB and the child protection authority to continue to provide the first applicant with psycho-educational assistance and a safe environment in school, in terms of the physical surroundings and specialist personnel. The court found as follows:","\u201cThe current legislation provides for measures capable of ensuring the integration of children with disabilities in school and in society, notably special educational services via the support teacher, speech therapy and psycho-educational counselling. ...","The personal rehabilitation plan drafted by the child protection authority [for the first applicant] provided for such services: physiotherapy, speech therapy and psychological counselling. ....","Based on the parties\u2019 statements, the court finds that the authorities involved did not refuse to provide the child with the services that he was entitled to under the law and which were included in his personal rehabilitation plan; [what they refused were] merely the conditions imposed by the mother that [the services] should be provided on the school premises ...","However, in order to meet the child\u2019s complex needs and ensure that he had access to all services, the authorities, in addition to the psycho-educational counselling offered by the school psychologist, organised speech therapy and physiotherapy in his school.","For these reasons, the [applicants\u2019] action is allowed and the institutions involved are ordered to take measures to ensure the continuity of services in terms of personnel, but also in terms of the physical environment and the necessary equipment.\u201d","(d)The court ordered the ISMB, the child protection authority, the Bucharest V local council and the Bucharest IV local council to take measures to ensure the child\u2019s assistance and safety in school, via teachers, school auxiliary staff, a personal assistant or a qualified caregiver. The court found as follows:","\u201cThe services provided in school to assist [the first applicant], provided by psychologists, speech therapists, school counsellors, support teachers, physiotherapists, etc., are necessary in order to ensure the effectiveness of the child\u2019s recuperation and therapy, but do not fully meet the child\u2019s complex needs during school time.","... the child has severe neuromotor disabilities which make it impossible for him to move, to walk, to help himself, to take notes in class, etc., and which consequently make it necessary for him to be assisted by another person who can move him, as needed, from the wheelchair or assistive devices to his desk and back; help him move around the school (take charge of him at the school door, accompany him back to the door at the end of the school day, and take him to the toilet, the sports room, and the laboratories which are on the upper floor); help him with taking notes during lessons and writing down the homework; assist him with physical exercises; assist him in the event of an emergency evacuation, etc. ...","Concerning the presence of a nurse [infirmier] the court notes that, although the law requires that children with disabilities be integrated in mainstream schools, the schools\u2019 structure does not include qualified staff who can meet the complex needs of a child with severe neuromotor disabilities that limit or exclude the child\u2019s capacity to move or to help himself.","The absence of assistance ... makes it impossible for the child to attend school and affects ... his right to education ...","The personal assistant not only acts as an accompanying adult for a child with severe disabilities but must also provide basic care (personal hygiene, dressing and undressing, personal and intimate care, feeding, hydration, transport, mobility and movement, etc.), assist in the child\u2019s family, community, and school activities, and assist in the child\u2019s school and with his or her educational integration.","There is nothing to prevent the [child protection authority] and the BucharestV local council from including these activities in the personal assistant\u2019s contract ...","Therefore the court considers that, in principle, the assistance, supervision and safety of the child during school hours must be ensured by his personal assistant or in the latter\u2019s absence ... by a person approved and nominated for the purpose by the parent ...","For the same reason, the ISMB and the Bucharest IV local council ... must take measures in order to ensure the child\u2019s effective access to education and his supervision and safety. ...","As the court thus considers that the child\u2019s action is well-founded on this count, it orders the ISMB, the child protection authority and the Bucharest IV and V local councils to take measures in order to ensure the child\u2019s supervision and safety in school, via the teachers or auxiliary staff, his personal assistant or a qualified caregiver.\u201d","(e)The court ordered the ISMB and the Bucharest IV local council to ensure the first applicant\u2019s access to education by rendering the school building accessible by wheelchair, in particular by: providing specially adapted desks in the classroom and laboratories; ensuring access to the upper floors of the school building; removing the obstacles preventing the first applicant from moving around the school, such as thresholds and narrow doors; adapting the sports room to the child\u2019s needs; and providing him with a computer and software adapted to his educational needs. The court noted that on 28 October 2015, at its request, the authorities had met with the applicants in order to listen to their demands and agree on solutions. It took note of the fact that at the date of the meeting, in M.E.School, there had been two reserved parking places and a toilet adapted to the first applicant\u2019s needs.","59.At the same time, the District Court dismissed the applicants\u2019 request for reimbursement of the costs incurred in respect of transport to and from school with their own vehicles, on the grounds that they received financial assistance from the State in the form of free public transport and an annual lump sum for costs, which was meant to cover transport as well.","60.Lastly, with regard to the request for non-pecuniary damage on account of the discrimination suffered by the applicants because of the authorities\u2019 attitude towards them, the District Court separated the issue from the main proceedings and created case no. 22624\/3\/2016. In a final decision of 31 May 2018 in that case, the Bucharest Court of Appeal ordered the ISMB, the CMBRAE and the Bucharest V local council to pay the applicants 7,500 Romanian lei (RON)[1] in respect of non-pecuniary damage.","61.In a final decision of 7 February 2018 the Bucharest Court of Appeal examined the appeals lodged by the parties against the decision of 10June2016. It amended the County Court\u2019s decision so that the authorities\u2019 obligations applied only for as long as the first applicant attended classes in a mainstream school, but dismissed the remaining appeals.","62.On 5 April 2018 the applicants started enforcement proceedings through the offices of a bailiff.","2.Interim injunction (ordonan\u0163\u0103 pre\u015feden\u0163ial\u0103) \u2013 case no.16673\/3\/2016","63.In decision no. 913 of 25 July 2016 the County Court ordered the authorities to appoint a person to assist the first applicant in school until the decision of 10 June 2016 became final (see paragraph 58 above).","64.On 28 November 2016 the bailiff ordered the authorities to comply with the court order and to pay the applicants the costs of the enforcement proceedings.","65.The Bucharest IV local council contested the enforcement proceedings, arguing that the council had already complied with the court order in so far as, when the school year had started on 12 September 2016, a person had been appointed to assist the first applicant in school. The council explained that the person appointed to assist the first applicant had been replaced on several occasions because of disagreements with the second applicant, but argued that the mere fact that the second applicant was dissatisfied with these persons could not be regarded as a failure on the part of the authorities to comply with the court order.","66.In a judgment of 2 March 2017 the Bucharest District Court dismissed the objection and found as follows:","\u201cIt appears that the minor, Stoian \u015etefan Moshe, was unable to benefit from the measures ordered by the court not only because of the poor cooperation between his legal representative and the ... authorities, but also because of the bureaucratic mechanism for implementing the measures and the manner in which responsibilities in this sphere are shared between the authorities concerned.","The court considers that there is no evidence that the minor\u2019s legal representative refused enforcement of the obligations laid down in the court order.\u201d","67.On 25 April 2017 the District Court dismissed an objection to enforcement in which the ISMB and the CMBRAE also claimed that they had already complied with the court order. The court found as follows:","\u201cThe assertions made by the objecting parties \u2013 that at the date on which the enforcement request was lodged they had already complied with the obligations laid down in the court decision \u2013 is contradicted by the facts, as the child\u2019s school situation is still uncertain in so far as he still does not benefit in school from the conditions set by that court decision.\u201d","68.On 23 January 2018 the District Court noted that the authorities had not fully complied with their obligation under the interim injunction of 25July2016 and that all the objections to enforcement had been dismissed. Consequently, it ordered each of those authorities to pay RON 200 for each day of delay in enforcement.","G.Incident of 3 April 2013","69.On 3 April 2013 the second applicant had a dispute in school with her son\u2019s teacher, during the lesson. The class teacher asked her to leave the classroom, warning her that her presence was no longer tolerated and that the authorities had been alerted. The second applicant refused to leave and was eventually removed by force by two police officers and taken to the police station. She was given a formal warning for refusing to leave the school premises. She left the police station three hours later and went back to the school to collect her son. According to the Government, during the second applicant\u2019s stay in the police station, the first applicant remained in school, in the presence of the school nurse and a teacher on duty.","70.On 31 May 2013 the applicants filed a criminal complaint about the incidents. The school headmaster, supported by parents\u2019 statements, also lodged a complaint against the second applicant, alleging that she had repeatedly disturbed the learning process. The second applicant and the school headmaster gave statements to the police. On 4 April 2017 the prosecutor\u2019s office attached to the Bucharest District Court closed the investigation. It found, based on the evidence in the file, that the force used by the police officers had been necessary in order to put an end to the second applicant\u2019s disruptive behaviour and had been proportionate to her reactions. It observed that the second applicant had disturbed lessons and had refused to leave the classroom, to show her identity papers to the police and to accompany the police officers to the police station. The prosecutor concluded that the injuries suffered by the second applicant had been the result of the use of force and of her own opposition to the police officers\u2019 actions. On 18 October 2017 the objection lodged by the applicants against the prosecutor\u2019s decision was dismissed as out of time by the chief prosecutor from the same prosecutor\u2019s office. The applicants\u2019 appeal was subsequently dismissed by the Bucharest District Court (final decision of 11December2017)."],"140":["5.The applicant was born in 1976 and lives in Madrid.","6.In January 2012 the applicant and his wife, a Spanish national, left Syria with their three minor children because of the armed conflict and travelled to Spain.","7.One month after their arrival in Spain the applicant\u2019s wife lodged a criminal complaint against him for domestic violence. On 2 February 2012 the Coslada (Madrid) judge no. 1 hearing cases of violence against women (\u201cthe Coslada judge no. 1\u201d) issued the applicant\u2019s wife with a temporary protection order valid for the duration of the criminal proceedings. It included a criminal-law measure barring the husband from approaching her and their three children or communicating with them and requiring him to wear a tracking bracelet, and a civil-law measure temporarily withdrawing the applicant\u2019s parental responsibility and contact rights. The applicant\u2019s wife, who had been staying in an emergency shelter, twice left the shelter with her children and returned to live with her husband despite the barring order issued against him. The applicant was arrested and detained on two occasions for violating the barring order but was ultimately released. According to reports drawn up on 20 April and 21 May 2012 by the M\u00f3stoles and Alcal\u00e1 de Henares emergency shelters, the children\u2019s relationship with their mother was characterised by serious emotional, educational and behavioural deprivation. On 8 June 2012 the applicant\u2019s wife filed a fresh complaint of violence.","8.On 15 June 2012 the Madrid regional government issued a legal declaration of abandonment concerning the three children, aged nine, six and one and a half, and took over their guardianship under the urgent procedure. The children were placed in residential care. The decision was taken following a request from the applicant\u2019s wife, who said that she could no longer look after her children owing to serious conflict within the family and her lack of resources. The applicant\u2019s wife informed the Madrid regional government that she intended to move to Murcia to get away from the applicant and to live with her brother. She requested that the three children be taken into care by the regional government in Murcia. She also stated her intention to begin therapy.","9.On 28 June 2012 the children were placed in residential care in Murcia. The applicant was not informed that his children had been declared abandoned and taken into care, nor was he informed of any of the decisions concerning his children taken by the Madrid or Murcia child protection services.","10.On 28 July 2012 the social affairs director of the Murcia region took over the guardianship of the three children. The applicant\u2019s two sons were placed in the Santo Angel children\u2019s home and his daughter in the Cardenal Belluga home. Their mother was given permission to visit.","11.On 14 February 2013 the president of the Spanish Muslim Association (\u201cthe association\u201d) wrote on the applicant\u2019s behalf to the Murcia child protection department (\u201cthe child protection department\u201d) stating that the applicant, having cut all ties with his wife, had no information concerning his three children. In the letter the association requested that it be informed about the children\u2019s situation and stated that the applicant, who was legally deprived of the right to communicate with his children, had asked for a member of the association to be allowed to meet them. On 7 March 2013 the child protection department replied that there were no plans to return the children to their birth family and that it was not desirable for outsiders to visit the children.","12.On 19 March 2013 the Coslada judge no. 1 sent the Murcia child protection department a summons which had arrived late at the court, making it impossible for the judge to contact the applicant in time for the latter to attend a hearing to be held in Murcia on 21 March 2013.","13.On 6 April 2013 the applicant was notified of the hearing to confirm the children\u2019s guardianship, by means of a notice (edictos) published in the Murcia official gazette. On 8 and 16 April 2013 he was contacted by telephone by a member of the Murcia child protection department. During the first telephone conversation the applicant was informed that notice of the guardianship hearing had been served. He did not follow up on the telephone call and did not attend the hearing. In the course of a further telephone conversation with the same member of the child protection department the applicant said that he would not attend the hearing and would, if necessary, appeal against the decision confirming the guardianship. On 24 April 2013 the Murcia regional government (\u201cthe regional government\u201d) placed the children in the care of the child protection department. A letter notifying the applicant of that decision was sent to his home on 14 May 2013. As the applicant was absent, it was left at the post office on 21 May 2013. The applicant did not go there to pick it up.","14.In an orientation report of 20 June 2013 the directorate-general of social affairs of the Murcia region took note of the fact that the children had allegedly been subjected to serious physical and emotional abuse by the applicant. It noted the order made by the Coslada judge no. 1 barring the applicant from approaching the children or communicating with them in any way. The report further took note, in particular, of the mother\u2019s very vulnerable, easily influenced and fragile personality and her failure to protect her children, her emotional instability and limited intellectual abilities, her lack of financial stability, the fact that she had no stable home or occupation and the fact that she had also spent her childhood in care. The report recommended suspending the mother\u2019s visits to her minor daughter and allowing just a single one-hour contact session with her two sons every two months, in a location to be decided by the children\u2019s home.","15.In the course of a telephone call from the social services at the Cardenal Belluga children\u2019s home, the applicant\u2019s wife said that she was renting an apartment in order to be close to her daughter, using money sent to her by the applicant.","16.In a very detailed psychosocial report dated 19 July 2013 the directorate-general of social affairs of the Murcia region proposed that the applicant\u2019s daughter should be placed temporarily in foster care with a view to adoption, and should not receive visits from her birth family. The report essentially echoed the findings of the previous report and stressed the mother\u2019s lack of parenting skills and her immaturity.","17.On 20 September 2013 the regional child protection board decided to place the applicant\u2019s daughter in temporary foster care with a view to her adoption.","On 24 September 2013 she was placed with a foster family.","18.On 8 October 2013 the president of the regional child protection board submitted a formal proposal for the girl to be placed in temporary pre\u2011adoption foster care with the couple who had been chosen. No provision was made for visits by her birth parents.","19.On 27 September 2013 the Alcal\u00e1 de Henares criminal court judge no. 5 acquitted the applicant of all charges in the proceedings concerning him and set aside the criminal and civil-law measures ordered by the Coslada judge no. 1 on 2 February 2012. The criminal court judge no. 5 took into account in his judgment the lack of detail in the applicant\u2019s wife\u2019s allegations concerning him, the similarly imprecise indirect witness statements (given by the head teacher of the applicant\u2019s children\u2019s school and their teachers, the school\u2019s learning support assistant and the school secretary), who had no clear memory of the events or had repeated remarks made by the children or their own impressions. The judge also took into account the psychological and medical expert reports, which noted \u201cpsychological scars consistent with ill-treatment, social maladjustment and physical, sexual and psychological violence\u201d. These were likewise deemed insufficient to disprove the presumption of the applicant\u2019s innocence, given the generic nature of the claims made in the various reports, the lack of explanations concerning the techniques used to arrive at the findings, and the imprecise testimony given by the experts at the hearing. The acquittal judgment became final on 8 November 2013.","20.With the assistance of a lawyer the applicant wrote to the child protection department on 19 November 2013 and attended an interview. He informed the department of the judgment in his favour and said that he was working, had a stable income and was living in Madrid. He requested permission to see his children.","21.In an orientation report of 28 February 2014 the child protection department took note of the fact that there had been no contact between the applicant and his children between 28 June 2012, the date on which the children had been placed in residential care, and 19 November 2013, when the applicant had first had contact with the child protection department as described above. In the report the child protection department proposed refusing the applicant permission to see his daughter and provisionally refusing him permission to see his other two children \u201cuntil such time as the children [were] more stable emotionally and psychologically\u201d. It noted that the girl had \u201cadjusted very well during the pre-adoption fostering process\u201d and that the other two children still showed signs of \u201cfear and a lack of trust where their father [was] concerned\u201d and were receiving psychological and pharmacological treatment. The findings of the report were endorsed on 31March 2014 by a decision of the directorate-general of social affairs of the Murcia region, which terminated the administrative proceedings. The decision was sent to the prosecutor with responsibility for minors, and the applicant was informed on 22 April 2014. ","22.On 28 May 2014 the applicant appealed against his daughter\u2019s placement in foster care.","23.In a follow-up report of 18 December 2014 the child protection department noted the emotional bond that had been formed between the young girl and her foster family and the degree to which she had adjusted to her new social and family environment.","24.On 2 February 2015 the psychologist and the welfare assistant from child welfare centre II in Madrid issued a report concerning the applicant, noting the lack of an emotional bond between the father and his daughter and the fact that the father\u2019s request to resume contact with his children had focused on the two older children. According to the report, the applicant understood the impact which the separation had had on his children and claimed that he was capable of balancing his private and working life in order to meet the children\u2019s needs.","25.On 11 February 2015, in response to a request from the directorate\u2011general of social affairs, the Murcia first-instance judge no. 3 authorised the placement of the applicant\u2019s daughter in foster care with a view to her adoption, under Article 173 \u00a7 1 of the Civil Code. The decision gave the following reasons:","\u201cThe present case satisfies the statutory conditions for placement in foster care in so far as the public child protection agency and the foster family have given their consent and the parents\u2019 lack of consent can be remedied by means of a judicial decision. In the child\u2019s circumstances, her placement in a family which will take care of her, feed and educate her and include her in family life would be of great benefit in terms of her physical, intellectual and moral development [and] her upbringing in general.\u201d","26.On 13 March 2015 the applicant appealed against the decision of 11February 2015 authorising his daughter\u2019s placement in foster care with a view to her adoption. His wife did likewise. The applicant argued, in particular, that the judgment in question did not give any reasons why the child should not be entrusted to his care given that he had been acquitted of all the charges against him. He stated that the declaration that his children had been abandoned had resulted from his wife\u2019s conduct, her particular personality traits and the war in Syria which they had escaped by leaving the country. He considered himself a victim of the inability of the girl\u2019s mother to look after her; his own ability to bring up his daughter and take care of her had never been examined by either the administrative or the judicial authorities.","27.In her written objection to the applicant\u2019s appeal against the decision of 11 February 2015 by the first-instance judge no. 3, the lawyer representing the regional government noted that the applicant had shown no interest in his children after they had been placed in residential care in Murcia on 28 June 2012. She also observed that the applicant had not appealed against the administrative decision confirming the children\u2019s placement in care.","28.On 7 April 2016 the Murcia Audiencia Provincial dismissed the appeals lodged by the applicant and his wife and upheld the impugned decision in the following terms:","\u201c... according to the decision under appeal, such a measure [the placement of the child in foster care with a view to adoption] will safeguard the child\u2019s best interests and contribute effectively to her overall development.","...","Account should be taken of the assessment made by the administrative authorities regarding the appellant\u2019s lack of interest. Firstly, he did not take any action after requesting information regarding his children\u2019s situation and being provided with that information in February 2013. Secondly, he did not intervene in the proceedings, with the exception of one written submission filed on 19 November 2013, despite being informed on several occasions of the confirmation of the decision to place his children in State care in April 2013 \u2026","It was only on 28 May 2014, after several unsuccessful attempts had been made to notify the appellant, that he intervened in the proceedings to appeal against the decision to place A. [his daughter] with a foster family.","\u2026 It appears from the orientation report of 28 February 2014 that the child lived in the child protection centre for a year and three months and has no contact with her father. Furthermore, the evidence examined, and in particular the follow-up report of 18 December 2014, shows that strong emotional bonds have been formed and that the child identifies as a member of the foster family and has adjusted to her new social and family environment. The report finds that this environment meets A.\u2019s needs and that the foster care is having a beneficial impact on her personal development. It adds that the best outcome for her would be for her to be adopted by her foster parents, [and that it is necessary] to assess the possible negative consequences if her foster care were to be terminated. Specifically, the report states that this would be tantamount to an attack on the child in all aspects of her physical, intellectual and moral development. This would pose a serious threat to her mental health and would affect the development of her personality and her ability to form personal relationships throughout her life.","...","It should be added that the document submitted by [the applicant] (Mr Haddad) in the appeal proceedings, in which the child protection department stated that A.\u2019s two brothers (L., aged thirteen and Ad., aged ten) were being taken out of State care because they had gone back to live with their father, is completely irrelevant. Firstly, the document makes no mention of the reasons for taking the children out of care. Secondly, the current situation with regard to A., who is four years old, does not militate in favour of a change of approach in her case, in the light of her ongoing placement in foster care with a view to her adoption, [the process] of integration [into the family] and the negative and damaging consequences which would result from the termination of the foster care, as established by the expert reports \u2026\u201d","29.On 26 February 2016 the regional government terminated the placement of the applicant\u2019s two sons in the care of the child protection department and authorised their return to their father. They have been living with him since that date.","30.On 13 June 2016 the applicant lodged an amparo appeal with the Constitutional Court in which he set out, in a separate section, the reasons why he considered his action to have special constitutional significance. He relied on Article 24 (right to a fair trial) and Article 39 of the Constitution and on Article 8 of the Convention, arguing that the judicial decisions had prevented him from being reunited with his daughter owing to serious errors in the various reports by the administrative authorities that had served as the basis for the domestic courts\u2019 reasoning. In a decision served on 19 October 2016 the Constitutional Court declared the amparo appeal inadmissible on the grounds that the applicant had not demonstrated the constitutional significance of his appeal.","31.The provisions of the Constitution of relevance to the present case read as follows:","Article 24","\u201c1. Everyone shall have the right to effective protection by the judges and courts in the exercise of his or her rights and legitimate interests; in no circumstances may there be any denial of defence rights.","\u2026\u201d","Article 39","\u201c1. The State authorities shall ensure that the family is afforded social, economic and legal protection.","2. The authorities shall also afford full protection to children, who shall be equal before the law irrespective of their parentage, and to mothers, irrespective of marital status. The law shall make it possible to investigate one\u2019s paternity.","3. Parents must lend assistance to their children in all spheres, whether the children were born within or outside marriage, until they reach full age and in the other cases provided for by law.","4. Children shall enjoy the protection provided for in the international agreements safeguarding their rights.\u201d","32.Section 17 of Institutional Law no. 1\/1996 of 15 January 1996 on the legal protection of minors provides as follows:"," \u201cIn any risk situation, whatever its nature, that is harmful to the minor\u2019s personal or social development and does not require a guardianship order under the law, the action taken by the public authorities shall in all cases secure the minor\u2019s rights and be aimed at reducing the risk factors and social difficulties impacting on his or her personal and social situation, while providing the necessary protection to the minor and his or her family.","Once the risk has been assessed the child protection authorities shall take the necessary steps to attenuate the risk and shall monitor the minor\u2019s progress within the family.\u201d","33.The relevant provisions of the Civil Code read as follows:","Article 172","\u201c1. Where the regional agency responsible for the protection of minors observes that a minor has been declared abandoned, it shall automatically take over his or her guardianship and shall put in place the necessary protective and guardianship arrangements \u2026 [The parents and guardians] shall, in so far as possible, be informed in person and in a clear and comprehensible manner of the reasons for the authorities\u2019 intervention and the potential consequences of the decision adopted.","A minor shall be legally considered abandoned where he or she is in a de facto situation stemming either from a failure to fulfil the protective duties set out in the legislation on the guardianship of minors, or from an inability to fulfil those duties or carry them out in the proper manner, and where he or she is deprived of the requisite moral or material assistance.","The exercise of guardianship by the authorities shall entail the suspension of parental responsibility or ordinary guardianship \u2026","2. Where, owing to serious circumstances, the parents or guardians cannot take care of the minor, they may request the competent administrative authority to take over the child\u2019s guardianship for the required period.","The transfer of guardianship shall be in writing. The document shall note that the parents or guardians have been informed of their continuing responsibilities towards the child and of the manner in which the authority will exercise guardianship.","...","3. Where guardianship is assumed at the request of the parents or guardians or to comply with a statutory obligation, it shall take the form of foster care or residential care \u2026","4. The aim shall always be to ensure the minor\u2019s best interests. Unless these interests dictate otherwise, [the authorities shall endeavour] to return the minor to his or her family and to entrust the guardianship of any siblings to the same institution or person. ","\u2026","7. Parents whose parental responsibility has been suspended under paragraph 1 of this Article may request that the suspension be lifted and that the declaration of abandonment be revoked, within two years from the administrative notification of the declaration, if they consider that they are again in a position to exercise parental responsibility owing to a change in the circumstances that led to the declaration.","They may also, during the same period, challenge the decisions taken in relation to protection of the minor.","...","Once this period has elapsed they shall no longer have the right to request or challenge decisions or measures relating to protection of the minor. \u2026","8. The administrative authority, of its own motion or at the request of the public prosecutor\u2019s office or any interested person or institution, may at any time revoke the declaration of abandonment and order the return of the minor to his or her own family, if he or she has not settled in another family or if it considers this the most appropriate course of action in the minor\u2019s interest. The public prosecutor\u2019s office shall be notified accordingly.\u201d","Article 173","\u201c1. The placement of minors in foster care shall entail their full involvement in the life of the household and an obligation for the foster family to care for and provide for them, feed them, ensure their upbringing and provide them with a full education. ","...","3. If the minor\u2019s parents \u2026 oppose [his or her placement in foster care], the placement shall be the subject of a judicial decision, in the interests of the minor \u2026 ","However, the administrative authority may decide, in the child\u2019s interests, to place him or her temporarily in foster care pending the judicial decision.","\u2026\u201d","Article 173 bis","\u201cFoster care may take one of the following forms, depending on its purpose","1. Simple foster care which is of a temporary nature, either because the minor\u2019s situation is such that he or she may be able to return to his or her own family, or because another more permanent protective measure is in preparation.","2. Permanent foster care in cases where, owing to the minor\u2019s age or other circumstances relating to the minor or his or her family, [this approach] appears preferable and has thus been recommended by the child protection department. \u2026","3. Foster care with a view to adoption, which is formally arranged by the administrative authorities when they submit a proposal to the judicial authority for the minor\u2019s adoption, [which must be] approved by the child protection department, provided that the foster parents satisfy the conditions for adoption, have been selected and have given their consent to the administrative authorities, and that the child\u2019s legal situation makes him or her eligible for adoption.","The administrative authorities may also put pre-adoptive foster arrangements in place where they consider, before submitting the adoption proposal, that a settling-in period in the foster family is necessary. This period shall be as short as possible and shall not exceed one year.\u201d","Article 222","\u201cThe following persons shall be placed under guardianship:","...","4. Minors who have been legally declared abandoned.\u201d","34.Section 35 of Law3\/1995 on children, enacted by the Murcia region on 21 March 1995, reads as follows:","\u201c1. Fostering arrangements may be put in place prior to adoption:","(a) where the minor shows signs of physical or psychological ill-treatment, sexual abuse, exploitation or other [forms of ill-treatment] of a similar nature, or where for any other reason the parents or guardians are deprived of parental responsibility and that situation is expected to be permanent;","(b) where the parents or guardians are prevented from exercising parental responsibility and that situation is expected to be permanent;","(c) where the parents or guardians make a request to that effect to the competent authority and have forfeited the rights and duties inherent in their function;","(e) where the judicial authority so decides.","2. In the cases defined in the first sub-section, and in order to facilitate integration into the foster family, visits and contact with the birth family shall be suspended if that is in the minor\u2019s best interests.\u201d"],"141":["A.Application no. 12200\/08 (Zhdanov and Rainbow House v.Russia)","6.The first applicant is the president of the second applicant, a regional public association for the protection of citizens\u2019 sexual rights.","1.Background information","7.In April 2005 the first applicant opened a gay nightclub which started to organise weekly gay parties.","8.On an unspecified day the police, masked and armed, stormed into the club, ordered that everyone should lie down on the floor and dragged the club visitors into a police bus. Several days later the lease for the premises of the nightclub was suddenly terminated without any explanation.","9.In August 2005 a group of gay activists notified the Tyumen Administration of their intention to hold a gay march on 5 September 2005. At the press conference of 17 August 2005 the head of the Interior Department of the Tyumen Region said that he had been extremely astonished when he had learnt that a gay march was being planned in Tyumen. He continued: \u201cIn my personal opinion, Tyumen is neither the Netherlands, nor Amsterdam. One cannot hold a gay march in our town.\u201d Representatives of the Orthodox Church also spoke publicly against the march. The Tyumen Administration refused permission to hold a gay march.","10.On 20 August 2005 it was publicly announced that a regional public association named \u201cRainbow House\u201d (the second applicant) had been created with the aim of defending the rights of LGBT people.","2.The first refusal of registration","11.In June 2006 the first applicant submitted an application for registration of the second applicant with the local department of the Federal Registration Service of the Ministry of Justice (hereafter \u201cthe Tyumen registration authority\u201d).","12.The Tyumen registration authority commissioned an expert opinion from the Tyumen Institute of Legal Studies of the Interior Ministry of Russia. The Institute studied the second applicant\u2019s articles of association and on 31July 2006 prepared an expert opinion, which read as follows:","\u201cThe rights and legitimate interests of citizens of traditional sexual orientation, of society [as a whole] and of the State may be breached by activities related to the following stated aims of [the second applicant]:","Publication and distribution of mass media, print, film and video products and communication via the Internet of information about [the second applicant];","Participation in the drafting of laws aimed at improving protection of persons of non-traditional sexual orientation.","The above finding is based on the following consideration: realisation of these aims involves propaganda of non-traditional sexual orientation.","...","[The second applicant\u2019s] activities relating to propaganda of non-traditional sexual orientation may endanger the security of Russian society and the State for the following reasons:","\u2013It will destroy the moral values of society;","\u2013It will undermine the sovereignty and territorial integrity of the Russian Federation by decreasing its population.","It follows from the above that propaganda of non-traditional sexual orientation by [the second applicant] may be classified as extremist activities because the pursuit of the aims mentioned above involves not only the protection of the rights and legitimate interests of citizens of non-traditional sexual orientation, but also attempts to increase the number of such citizens by converting those who, without such propaganda, would have retained a traditional sexual orientation.","However, to confirm the above finding, it is necessary to perform a sociological study...\u201d","13.The first applicant received a copy of that expert opinion in October 2007.","14.On 29 December 2006 the Tyumen registration authority refused registration of the second applicant, finding that it represented a danger to Russia\u2019s national security. In particular, it considered that propaganda of non-traditional sexual orientation was capable of \u201cdestroying the moral values of society and undermining the sovereignty and territorial integrity of the Russian Federation by decreasing its population\u201d. It further considered that the second applicant\u2019s activities might infringe the rights and freedoms of others, jeopardise the constitutionally protected institutions of family and marriage and encourage social and religious hatred and enmity. It concluded that the second applicant was an extremist organisation.","The Tyumen registration authority also noted irregularities in the document confirming the lease for the second applicant\u2019s office and reproached the first applicant for paying the registration fee several days before the second applicant had been founded.","15.The first applicant commissioned an expert opinion from a public association, the Independent Legal Expert Council. The expert opinion, dated 7 February 2007, indicates that the second applicant was not an extremist organisation. Its articles of association did not contain any indication that it would resort to propaganda of homosexuality, would encourage social or religious hatred or enmity or would endanger national security.","16.On 10 March 2007 the first applicant challenged the decision of 29December 2006 before the Federal Registration Service of the Ministry of Justice (hereafter \u201cthe federal registration authority\u201d). He submitted, in particular, that under Russian law, an association could be declared extremist by a judicial decision only. He further disputed the findings of the Tyumen registration authority, affirming that the second applicant had no intention to promote homosexuality or gay marriage. Its aims were to defend the rights of homosexuals and to promote tolerance of diversity among the population. Lastly, he complained of discrimination on account of sexual orientation.","17.On 18 April 2007 the federal registration service found that the decision of 29December 2006 had been lawful.","18.On 15 August 2007 the first applicant appealed against the refusal of registration to the Taganskiy District Court of Moscow. He repeated the arguments set out in his complaint of 10 March 2007 and asked that the refusal to register the second applicant be declared unlawful and unfounded and that the Tyumen registration authority be required to remedy the breach of rights.","19.On 26 October 2007 the Taganskiy District Court dismissed the first applicant\u2019s complaint. It referred to the expert opinion of 31July 2006, repeated verbatim the Tyumen registration authority\u2019s decision of 29December 2006 and found that it was lawful, well reasoned and justified. It rejected the applicant\u2019s argument that an association could be declared extremist by a judicial decision only, finding that that rule applied only to registered associations, whereas the second applicant had never been registered. The court refused to take into account the expert opinion of 7February 2007 because it had not been submitted to the Tyumen registration authority together with the application for registration.","20.On 11 December 2007 the Moscow City Court upheld the judgment of 26 October 2007 on appeal, finding that it had been lawful, well reasoned and justified.","3.The second refusal of registration","21.On 2 May 2007 the first applicant resubmitted an application for registration of the second applicant with the Tyumen registration authority.","22.On 1 June 2007 the Tyumen registration authority for a second time refused registration, repeating verbatim its previous reasoning of 29December 2006 relating to the extremist nature of the second applicant\u2019s activities. It also noted minor irregularities in the application for registration and accompanying documents, such as the failure to staple the application form or a typing error in the name of the department that had issued the first applicant\u2019s passport. It also refused to accept the lease agreement for the second applicant\u2019s office, finding that it had been drawn up incorrectly. Finally, the Tyumen registration authority held that the second applicant\u2019s articles of association unlawfully vested the right to dispose of its property in the president, and that the competence and the procedure for appointment of one of the governing bodies were not clearly defined.","23.On 25 August 2007 the first applicant challenged the refusal before the Tsentralnyy District Court of Tyumen, asking that it be declared unlawful and that the Tyumen registration authority be required to remedy the breach of law by registering the second applicant. He repeated the arguments set out in his complaint of 10 March 2007. He also submitted that the second applicant was an existing public association functioning without State registration as permitted under Russian law. Such existing associations could only be declared extremist by a judicial decision following a prosecutor\u2019s warning. No such warnings had been issued in respect of the second applicant and its activities had never been classified as extremist by the competent authorities. Lastly, the first applicant submitted that the minor irregularities in the registration documents, such as a typing error in the name of the department that had issued the first applicant\u2019s passport, could be easily corrected through a special procedure provided for by law.","24.On an unspecified date the Tyumen registration authority commissioned expert opinions from the Tyumen Institute of Legal Studies of the Interior Ministry of Russia and from the Institute of Governmental and Legal Studies of the Tyumen State University.","25.On 17 October 2007 the Tyumen Institute of Legal Studies of the Interior Ministry of Russia found that the second applicant\u2019s activities might be extremist. The rights and legitimate interests of heterosexual citizens, of society as a whole and of the State might be breached if the second applicant created an information centre, issued and distributed printed, video and other material, or organised exhibitions, conferences, meetings, assemblies, marches or pickets. All those activities might involve propaganda of homosexuality and therefore might promote social discord. They might also destroy the moral values of society and undermine the national security and territorial integrity of the Russian Federation by decreasing its population. The second applicant\u2019s activities might be aimed not only at protecting the rights and legitimate interests of homosexual citizens, but also at increasing the number of such citizens by converting those who, without the second applicant\u2019s propaganda, would have retained a \u201ctraditional sexual orientation\u201d.","26.On the same day the Institute of Governmental and Legal Studies of the Tyumen State University also found that the second applicant was an extremist organisation. Firstly, the expression \u201cthe protection of citizens\u2019 sexual rights\u201d in the second applicant\u2019s name was insulting to the moral, national and religious feelings of citizens. The Constitution guaranteed the right to respect for private life, which covered sexual relations. Any interference in the sphere of private life, including for its protection, was contrary to the Constitution and breached citizens\u2019 rights. It followed that the sole purpose of the founders of the second applicant was to insult the morality and the religious feelings of others. Secondly, the distribution of printed, video and other material by the second applicant might incite religious discord because a majority of the traditional confessions in Russia viewed homosexuality negatively. Open propaganda of homosexuality would cause social tension and might provoke a violent response. Thirdly, \u201cnon-traditional sexual orientation\u201d was a broad term that could include paedophilia, which was a criminal offence in Russia. Therefore, the second applicant\u2019s activities might threaten public order. Finally, the support of persons suffering from HIV\/AIDS, proclaimed as one of the aims of the second applicant, might violate the rights of those persons to confidentiality and respect for private life. It was impossible for a public association intending to advertise its activities to ensure the confidentiality and inviolability of private life.","27.On 7 November 2007 the Tsentralnyy District Court of Tyumen found that the decision of 1 June 2007 to refuse registration had been lawful and justified. It held that the refusal of registration did not breach the applicants\u2019 right of association because the second applicant could continue to function without State registration. The decision of 1June 2007 had not declared the second applicant an extremist organisation. It had instead found that there were indications of extremism in its articles of association and that it did not therefore comply with the requirements of domestic law.","28.The first applicant appealed.","29.On 17 December 2007 the Tyumen Regional Court upheld the judgment of 7 November 2007 on appeal, finding that it had been lawful, well reasoned and justified. It held:","\u201cThe first-instance court correctly rejected the plaintiff\u2019s complaint, finding that [the Tyumen registration authority\u2019s] decision to refuse legal-entity status to [Rainbow House] had been lawful and had not breached the plaintiff\u2019s rights and legitimate interests. A legal analysis of that public association\u2019s articles of association submitted for registration by the plaintiff revealed that its stated aims and objectives were contrary to the applicable laws, and in particular to the Russian Constitution.","This finding of the court is correct as it is based on the circumstances of the case as correctly established on the basis of the evidence in the case file, and on the applicable legal provisions.","In particular, the first-instance court correctly noted in its judgment that the registration authority had not declared [Rainbow House] an extremist organisation. It only found that some provisions of its articles of association contained indications of extremism. That finding served as a lawful basis for the refusal of legal-entity status in accordance with section 23(1)(1) and (2) of the Public Associations Act.","The judgment lists these indications of extremism: propaganda of non-traditional sexual orientation which might [undermine] the security of the State and of society, create conditions for inciting social or religious hatred or enmity, or undermine the foundations of the family and marriage, contrary to Articles 29 and 38 of the Constitution of the Russian Federation, Articles 1 and 12 of the Family Code and section 16 of the Public Associations Act.","The arguments in the appeal submissions are based on an incorrect interpretation of the applicable legal provisions and an incorrect assessment of the relevant circumstances. They cannot therefore be taken into account.","The plaintiff\u2019s argument that [the registration authority\u2019s] decision had breached his rights as a member of a public association is unfounded. After correcting the above\u2011mentioned defects in the articles of association, he may reapply for registration of legal-entity status.\u201d","30.Further applications for registration were refused in May and November 2010 for the same reasons as before.","B.Application no. 35949\/11 (Alekseyev and Movement for Marriage Equality v. Russia)","31.The first applicant is the founder and the executive director of the second applicant, an autonomous non-profit organisation.","32.In November 2009 the first applicant decided to create an autonomous non-profit organisation called Movement for Marriage Equality with the aims of defending human rights in the sphere of marriage relations, combating discrimination on the grounds of sexual orientation and gender identity and promoting equality for LGBT people, in particular through the legalisation of same-sex marriage.","33.On 14 December 2009 the first applicant submitted an application to register the second applicant with the Moscow department of the Federal Registration Service of the Ministry of Justice (hereafter \u201cthe Moscow registration authority\u201d).","34.On 12 January 2010 the Moscow registration authority refused to register the second applicant, finding that its articles of association were incompatible with Russian law. In particular, the second applicant\u2019s aims as described in paragraph 3.1 of the articles of association were incompatible with section 2(2) of the Non-profit Organisations Act and Article 12 of the Family Code (see paragraphs 56 and 69 below). Moreover, the second applicant\u2019s rights as set out in paragraph 5.1 of its articles of association were those belonging to public associations. Paragraph 11.1, stating that the organisation could cease its activities in the event that it was to be reorganised, was incompatible with the Civil Code, which provided that a reorganisation did not always result in cessation of activities. Paragraphs12.1 to 12.3 provided that changes could be made to the second applicant\u2019s articles of association instead of to its constitutional documents. Some clauses contained in paragraph 7.1 describing the second applicant\u2019s sources of income were also incompatible with the law. The application for registration mentioned only one founder of the second applicant, while its articles of association mentioned that it had been founded by citizens. There was also a mistake in the address indicated in the application for registration.","35.On 5 April 2010 the first applicant challenged the refusal before the Gagarinskiy District Court of Moscow. He submitted, in particular, that the refusal to register the second applicant violated his freedom of association as guaranteed by Article 30 of the Russian Constitution and Article11 of the Convention. He argued that the second applicant\u2019s aims were compatible with section 2(2) of the Non-profit Organisations Act. It pursued the social aim of promoting equality and combating discrimination, and the aim of defending human rights, specifically the right to marry for LGBT people. As regards the alleged incompatibility with Article 12 of the Family Code, the fact that the second applicant intended to promote an amendment to that Article to legalise same-sex marriage could not serve as grounds for refusing its registration. The first applicant also argued that the remaining grounds for the refusal of registration had not had any basis in law. Paragraph 5.1 of the articles of association did not mention any activities that were prohibited by law for non-profit organisations. Paragraph11.1 only mentioned the possibility of ceasing activities in the event of a reorganisation in accordance with Russian law; it did not provide for the automatic cessation of activities. Paragraphs 12.1 to 12.3 provided that changes could be made to the second applicant\u2019s articles of association, which was its only constitutional document. Paragraph 7.1 did not mention any sources of income prohibited by law. Furthermore, although the first applicant admitted that there had indeed been a discrepancy between the application for registration, which mentioned one founder, and the articles of association, mentioned \u201cfounders\u201d in the plural, that had been a technical error that could be easily corrected through a special procedure provided for by law. Lastly, he argued that the address indicated in the application had been correct.","36.On 20 July 2010 the Gagarinskiy District Court dismissed the first applicant\u2019s complaint. It held that section 2(2) of the Non-profit Organisations Act, enumerating permissible aims for non-profit organisations, was open-ended. It followed that a non-profit organisation could pursue any aims except for making profit, provided they were compatible with public order and morality. The court further held as follows:","\u201c[The second applicant pursues aims] incompatible with basic morality as it aims to promote legalisation of same-sex marriage and to increase the number of citizens belonging to sexual minorities, thereby undermining the conceptions of good and evil, of sin and virtue established in society. If these aims are attained it may trigger a public reaction and result in a decrease in the birth rate.\u201d","The District Court further held that in accordance with national tradition, reflected in Article 12 of the Family Code, marriage was the union of a man and a woman with the aim of giving birth to and raising children. The second applicant\u2019s aim of promoting legalisation of same-sex marriage was therefore incompatible with established morality, with the State policy of protecting the family, motherhood and childhood and with national law. The District Court noted that that finding did not breach Russia\u2019s international obligations because, in particular, Article 12 of the Convention provided that the right to marry was to be exercised in accordance with national laws.","The District Court also found that the other grounds for the refusal of registration advanced by the Moscow registration authority had been lawful and justified.","37.On 20 December 2010, following an appeal by the applicants, the Moscow City Court upheld that judgment.","C.Application no. 58282\/12 (Alekseyev and Others v. Russia)","38.The first, second and third applicants are the founders of the fourth applicant, a public movement. The first applicant is the president of the board of directors of the fourth applicant.","39.In October 2011 the first, second and third applicants decided to create Sochi Pride House with the aims of developing sports activities for LGBT people, combating homophobia in professional sport, creating positive attitudes towards LGBT sportspeople, and providing a forum for the latter during the Sochi Olympic Games.","40.On 19 October 2011 they submitted an application for registration of the fourth applicant with the Krasnodar department of the Federal Registration Service of the Ministry of Justice (hereinafter \u201cthe Krasnodar registration authority\u201d).","41.On 16 November 2011 the Krasnodar registration authority refused to register the fourth applicant, finding that its articles of association were incompatible with Russian law. In particular, the name of the fourth applicant contained words that did not exist in the Russian language, in breach of section 1(6) of the State Language Act (see paragraph 70 below). The articles of association did not indicate which type of association the fourth applicant was. Paragraph 4.2 mentioned, in breach of the domestic law, that legally incapacitated persons could not be members. The application for registration also contained several mistakes.","42.On 6 December 2011 the applicants challenged the refusal before the Pervomayskiy District Court of Krasnodar. They argued, firstly, that it was common practice to give public associations original names containing words in a foreign language. In particular, according to official data, there were eleven registered associations whose names contained the word \u201cpride\u201d and more than forty associations with the word \u201chouse\u201d as part of their names. Moreover, the expression \u201cpride house\u201d did not have an adequate equivalent in Russian. Secondly, paragraph 1.1 of the articles of association indicated the fourth applicant\u2019s organisational type: a public movement. The remaining mistakes were minor and should not serve as a ground for refusing registration.","43.On 20 February 2012 the Pervomayskiy District Court dismissed the applicants\u2019 complaint. It upheld the grounds for the refusal of registration cited by the Krasnodar registration authority, finding that they had been lawful and justified. The court also held as follows:","\u201cThe aims of combating homophobia and creating positive attitudes towards LGBT sportspeople are incompatible with basic morality as they may lead to increasing the number of citizens belonging to sexual minorities, thereby undermining the conceptions of good and evil, of sin and virtue established in society ...","The court does not see any reason to order that the respondent register [the fourth applicant] because its constitutional documents do not comply with the requirements of Russian law and its aims are incompatible with basic morality and the State policy of protecting the family, motherhood and childhood. Its activities amount to propaganda of non-traditional sexual orientation, which may undermine national security, cause social and religious hatred and enmity and undermine the sovereignty and territorial integrity of the Russian Federation by decreasing its population. They are therefore extremist in nature.\u201d","44.The applicants did not attend the pronouncement of the judgment. The minutes of 20 February 2012 mentioned that the judgment had been pronounced on that date, without specifying whether it was the entire judgment or the operative part only that had been pronounced. The written text of the judgment was sent to the applicants by post on 27March 2012. It did not mention the date on which it had been delivered in finalised form or the date when the time-limit for appeal started to run or ended.","45.On 5 March 2012 the case file was deposited with the District Court\u2019s registry.","46.On 19 March 2012 the applicants dispatched by post a short version of their appeal submissions against the judgment of 20 February 2012. The applicants submitted a postal receipt showing that they had sent a letter to the Pervomayskiy District Court on 19 March 2012. A short version of the appeal submissions was received by the District Court on 26 March 2012.","47.On 25 March 2012 the applicants paid the appeal court fee.","48.On 26 March 2012 they dispatched by post a complete version of their appeal submissions. It was received by the District Court on 3 April 2012. The applicants submitted, in particular, that the aim of Sochi Pride House was to combat discrimination against LGBT sportspeople. It did not intend to perform any unlawful or extremist activities. Nor could homosexuality be considered to be immoral. Russian law did not prohibit the creation of an association to defend LGBT rights. They also argued that sexual orientation was not a matter of choice and that its activities could not therefore increase the number of LGBT people. In any event, Sochi Pride House did not intend to resort to any propaganda of homosexuality. The refusal of registration had therefore amounted to discrimination on grounds of sexual orientation. Lastly, the applicants submitted that the District Court had relied on grounds that had not been cited by the Krasnodar registration authority in its refusal of registration of 16 November 2011. As those new grounds related to Sochi Pride House\u2019s aims, it was clear that registration would be refused even if the applicants corrected the purely formal defects mentioned by the Krasnodar registration authority. The applicants then repeated the arguments they had advanced in their complaint of 6December 2011.","49.On 28 March 2012 the Pervomayskiy District Court returned the short version of the appeal submissions to the applicants, finding that the appeal had been lodged on 26 March 2012, that is, to say outside the one\u2011month time-limit established by law. The applicants had not asked for an extension of the time-limit. Nor had they submitted the stamped envelope showing the date on which they had received the judgment of 20February 2012.","50.On 4 April 2012 the Pervomayskiy District Court returned the complete version of the appeal submissions, finding that it had been received by the District Court on 3 April 2012, outside the time-limit established by law. The applicants had not asked for an extension of the time-limit. Nor had they submitted the stamped envelope showing the date on which they had received the judgment of 20 February 2012.","51.The applicants appealed against the decisions of 28 March and 4April 2012. They submitted that under Article 321 \u00a7 2 of the Code of Civil Procedure, the one-month time-limit for lodging an appeal had started to run on the day when a written copy of the first-instance judgment had been made available to the parties (see paragraph 72 below). A written copy of the judgment of 20February 2012 had been deposited with the court\u2019s registry on 5 March 2012. Therefore, the time-limit for lodging an appeal had expired on 5 April 2012. In any event, even if the time-limit had started to run on the date the judgment had been pronounced, they had still complied with the time-limit as they had dispatched the appeal submissions by post on 19 March 2012, that is to say, less than a month after the pronouncement of the judgment of 20February 2012. They submitted a copy of the postal receipt confirming the dispatch date; they also argued that the date of dispatch could be found on the stamp on the envelope. They also enclosed a copy of the stamped envelope confirming the date of receipt of the judgment of 20 February 2012.","52.On 24 July 2012 the Krasnodar Regional Court upheld the decision of 28March 2012 on appeal, repeating the reasons set out in that decision and finding that it had been lawful, well reasoned and justified. It did not reply to the applicants\u2019 argument that they had dispatched the appeal on 19March 2012.","53.It appears that the appeal against the decision of 4 April 2012 has never been examined.","74.Recommendation CM\/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity (adopted by the Committee of Ministers on 31March 2010 at the 1081st meeting of the Ministers\u2019 Deputies) states:","\u201cII.Freedom of association","9.Member states should take appropriate measures to ensure, in accordance with Article 11 of the Convention, that the right to freedom of association can be effectively enjoyed without discrimination on grounds of sexual orientation or gender identity; in particular, discriminatory administrative procedures, including excessive formalities for the registration and practical functioning of associations, should be prevented and removed; measures should also be taken to prevent the abuse of legal and administrative provisions, such as those related to restrictions based on public health, public morality and public order ...","11.Member states should take appropriate measures to effectively protect defenders of human rights of lesbian, gay, bisexual and transgender persons against hostility and aggression to which they may be exposed, including when allegedly committed by state agents, in order to enable them to freely carry out their activities in accordance with the Declaration of the Committee of Ministers on Council of Europe action to improve the protection of human rights defenders and promote their activities.","12.Member states should ensure that non-governmental organisations defending the human rights of lesbian, gay, bisexual and transgender persons are appropriately consulted on the adoption and implementation of measures that may have an impact on the human rights of these persons.\u201d"],"142":["5.The applicant was born in 1944 and lives in Cluj-Napoca.","6.The applicant was arrested and investigated in criminal proceedings concerning five international drug-trafficking networks. The proceedings were widely reported in the media, as they concerned one of the biggest drug-trafficking cases investigated by the Romanian authorities at the time.","7.On 7 July 2003, F.D. and P.A. were questioned by the police and the public prosecutor. They both stated that the applicant was involved in the drug-trafficking.","8.According to the applicant, the prosecuting authorities explored the possibilities of reaching an agreement whereby the accused would give statements about others involved in drug-trafficking in exchange for a reduced sentence. He suggested that such an agreement had been reached with F.D. and P.M. (the ex-wife of accused P.A.) who had not been indicted although they had recognized that they had transported drugs on several occasions.","9.On 14 July 2003, at about 00.30 p.m., two police officers took the applicant into custody and transported him to the prosecutor\u2019s office attached to the High Court of Cassation and Justice located in Bucharest.","10.According to the applicant, the prosecutor took his first statement in the presence of an officially appointed lawyer, G.S.C., who had also been assisting two other co-accused, P.A. and F.D. The applicant denied any involvement in drug-trafficking. The applicant maintained the same attitude of denial of the charges throughout the proceedings.","11.At about 1.30 a.m. the prosecutor issued an arrest warrant for a period of three days in the applicant\u2019s name.","12.The next day the applicant was brought before the High Court of Cassation and Justice for the examination of the prosecutor\u2019s request concerning his pre-trial detention. He alleges that he was assisted by the same officially appointed lawyer despite the fact that he insisted to be assisted by a lawyer of his own choosing.","13.The applicant affirmed that he had complained to the prosecutor and then to the judges that he could not be assisted by a lawyer of his choice and that instead he had been assisted by an officially appointed lawyer who also had assisted his co-defendants, P.A. and F.D. However, the criminal case file contains no written trace of any such complaints.","14.According to the documents submitted by the applicant, he engaged a lawyer practicing in Cluj-Napoca on 15 July 2003.","15.On 29 July 2003 the applicant, in the presence of his lawyer, was confronted with F.D. According to the record, the latter stated that he had heard about the applicant\u2019s involvement in packing and dissimulating drugs from P.A., but that he had never seen him performing these kinds of activities.","16.The applicant\u2019s pre-trial detention was repeatedly extended by the Bucharest County Court by interlocutory decisions. The applicant, assisted by his lawyer, attended the hearings.","17.On 25 September 2003 the prosecutor issued an indictment concerning twenty-six accused persons, including the applicant, and the next day the case was registered with the Bucharest County Court. F.D. and P.M. had not been indicted although they had recognized their involvement in drug-trafficking.","18.The applicant\u2019s co-accused, P.A., was heard on 7 February 2005 by the court of first instance. He stated among other things that the applicant had helped him in packing drugs. He also stated that the applicant had been his friend since 1994 and that he had provided services for his pharmaceutical company between 1999 and 2001 on the basis of a contract.","19.On 9 September 2005, I.I., an under-cover agent, gave a statement before the court. She was asked to mention the members of the drug-trafficking network and the role played by each of them. She did not mention anything about the applicant although in her initial statement given before the prosecutor on 9 June 2003 she had stated that many drug transports had left from the applicant\u2019s home. She finished her testimony by stating that \u201cthere were no other persons involved in drug trafficking\u201d. The judge did not ask her additional questions to clarify the role played by the applicant in the drug-trafficking network.","20.On 29 September 2005 the judicial investigation was closed and the lawyers of the accused and the accused themselves submitted their arguments on the merits of the case; the delivery of the first-instance judgment was postponed to 4 October 2005.","21.By a first-instance judgment of 4 October 2005 the Bucharest County Court found the applicant guilty and convicted him to sixteen years\u2019 imprisonment. He was found guilty of taking part in international drug trafficking by facilitating the transport of drugs.","22.His conviction was based on statements given by undercover agent I.I., co-accused P.A. and witness F.D. The latter did not give any evidence before the court. Therefore, the court relied on his witness\u2019 pre-trial statements accusing the applicant.","23.The relevant part of the judgment stated as follows:","\u201cThe drugs transported by P.A., P.M. and F.D. had been packed at T.I.\u2019s (the applicant) home. This aspect was revealed by defendant P.A. and witness F.D. The latter stated during the confrontation with defendant T.I. that he had been sent by P.A. to T.I.\u2019s home to have returned special material used for packing the drugs as well as a device used to glue plastic foil; both had been handed to him by defendant T.I.","The involvement of defendant T.I. in the packing and marking of the drugs throughout the year 2002 is confirmed by co-defendant P.A., witness F.D. and undercover agent I.I.\u201d","24.The applicant appealed against the conviction. He disputed his involvement in the criminal offence and disagreed with the way the trial court had established the relevant facts. He submitted in particular that the trial court had mainly based its decision on statements made by the co\u2011accused before the prosecutor. He pointed out that I.I. had changed her statement before the court and that he could not confront F.D. in open court despite his repeated requests.","25.On 7 June 2006 the Bucharest Court of Appeal reversed the judgment in respect of the applicant and his sentence was reduced to eightyears\u2019 imprisonment on the grounds that he was an accomplice, had no criminal record and he was more than sixty years old. The Appeal Court held that the applicant had just supported the activities of the gang by providing help with the packing of the drugs which were to be transported, by storing them on the premises of his home and then allowing them to be collected by other members of the network. The court made no reference to the applicant\u2019s complaints that he could not confront in open court F.D.","26.On 14 June 2007, the High Court of Cassation and Justice dismissed an appeal on points of law by the applicant. It upheld the decision of 7June2006 endorsing the Bucharest Court of Appeal\u2019s reasoning. It concluded by stating that the applicant\u2019s allegations that he had not committed any offence related to drug-trafficking had been contradicted by the statements of witness F.D., co-accused P.A. and undercover agent I.I.","27.By an interlocutory judgment of 3 July 2007, the Bucharest District Court ordered the release of the applicant under probation. He was released from prison on 10 July 2007.","28.The relevant domestic law and practice concerning unlawful detention are set out in Dragomir v. Romania (dec.), no. 59064\/11, \u00a7\u00a79-14, 3June2014.","29.Excerpts from the relevant provisions concerning the hearing of witnesses are described in Bobe\u015f v. Romania, no. 29752\/05, \u00a7\u00a722-24, 9July 2013."],"143":["5.The applicants were born in 1974 and 1949 respectively and live in Drobin.","6.On the night of 26 October 2001 Mr Krzysztof Olewnik, the first applicant\u2019s brother and the second applicant\u2019s son, disappeared from his home in Drobin. He was twenty-five years old. He and his father were businessmen, the latter owning successful butchers\u2019 shops and meat-processing plants. On the day of his kidnapping Krzysztof Olewnik had held a garden party at his house, which was attended by four local police officers, two former police officers, his father and mother, and three of his friends. After the party, Krzysztof Olewnik drove his guests back to their homes and came back. A few hours later, he was kidnapped from his house by A, E, F and G.","7.The second applicant noticed that his son was missing on the morning of 27 October 2001 and informed the police.","8.At the same time he contacted a private detective, K.R., whose team arrived at the scene. K.R.\u2019s team investigated the case independently of the police during the years that followed.","9.On 29 October 2001 the kidnappers contacted the applicants, asking for a ransom. The victim\u2019s family cooperated with the kidnappers, but several attempts to hand over the ransom failed as the kidnappers did not pick up the money. On numerous occasions they contacted the family by telephone and SMS, sent voice messages, and passed on letters handwritten by the victim. Many of those letters included messages indicating that MrOlewnik might be harmed or killed. The applicants provided the following examples of them: \u201cyou put us at risk of being caught and Krzysiek being beaten up\u201d, \u201c[it] will have brutal consequences for Krzysiek\u201d, \u201c[this] is consent to Krzysiek\u2019s death\u201d. All the messages and communications received were immediately passed on to the police. On 24July 2003 the first applicant handed over 300,000 euros (EUR) as a ransom to free her brother. However, the kidnappers did not release him.","10.Mr Krzysztof Olewnik was kept for almost two years by his kidnappers at three different nearby locations. He was hidden in an abandoned house, an underground garage, and an underground septic tank. According to the account given by the kidnappers at their trial, the victim was kept chained to the wall by his neck and his leg. He was drugged, beaten up on a few occasions, poorly fed and generally badly treated (see paragraph 39 below).","11.On 5 September 2003 Mr Olewnik was murdered in a forest near Dzb\u0105dz. The circumstances of his kidnapping and murder were discovered in November 2005 and the site of his death and the burial of his body was discovered in October 2006.","12.His funeral took place on 4 November 2006.","13.On 24 October 2001, prior to the kidnapping, the traffic police had stopped A whilst he was driving a car belonging to B. A was a repeat offender released from prison in June 2001.","14.After the second applicant had reported his son missing, the first police officers arrived at the latter\u2019s house at 9 a.m. on 27 October 2001. The case was handled by the local police in Sierpiec. The house was searched and abundant blood samples belonging to the victim collected, as well as other evidence. The duty prosecutor arrived at the scene but did not enter the house to supervise the police and give them instructions.","15.A BMW car belonging to a friend of the victim was found burned out. It had been stolen on the night of the kidnapping after being left parked by the owner in the victim\u2019s yard.","16.On 31 October 2001 the case was transferred to a special team led by police officer R.M. from the Radom Regional Police. The team consisted of twelve police officers, supplemented \u2012 following a confidential decision by the chief of that force \u2012 by K.K., a police officer who had attended the party at the victim\u2019s house. The investigation was supervised by the Sierpiec District Prosecutor, L.W.","17.The team led by R.M. had four main working hypotheses. The first three posited that Mr Olewnik had been kidnapped by people linked to organised crime or by husbands of women he had dated. According to the fourth theory, of so-called \u201cself-kidnapping\u201d, the victim had faked his own kidnapping in order to extort money from his father. This was the version favoured by the investigating police.","18.In November 2001 the police interviewed B, a repeat offender living in the same village as the victim, and released him. In the same month the second applicant handed over to the police further evidence found in the victim\u2019s house which had been overlooked, namely a blood-stained jacket and a mobile telephone.","19.In January and March 2002 the traffic police on four occasions stopped A driving the same car as before, twice in the presence of B and once in the presence of D (see paragraph 13 above).","20.The prosecutor L.W. supervised the investigation until 25 November 2002. From then until April 2004 the case was supervised by three successive prosecutors from the financial crime division of the Warsaw Regional Prosecutor\u2019s Office (the case was transferred to the organised crime division in September 2004).","21.On 15 January 2003 the applicants received an anonymous letter alleging that the kidnappers were a certain D and C. The letter also indicated the geographical location where the victim was being kept and warned that his life was in danger. The applicants passed the letter on to the police, but the information contained therein was not considered meaningful and was not investigated further.","22.Between 11 March 2002 and 11 June 2003 the kidnappers did not contact the family. On the latter date they called the applicants and reiterated their demand for a ransom in the amount of EUR 300,000. On 25June 2003 the kidnappers sent the family a SIM card; they used the number for future communication with the applicants.","23.On 26 June 2003 the kidnappers called the applicants and later the S\u0142ubice police station. They called from a telephone booth and used a phonecard. The police were able to trace the card to other calls made by the kidnappers to the family. On 4 July 2003 the police established that the person who had called the police station using the phonecard in question had been B. Nevertheless, B was not investigated further or placed under surveillance.","24.On 24 July 2003 the first applicant handed over a ransom in the amount of EUR 300,000. The police failed to follow the first applicant and intercept the money or identify and arrest the individuals receiving it. The ransom was picked up by A, B, C, D and H.","25.Between 27 and 30 July 2003 R.M. and M.L. travelled to Berlin to investigate a possible sighting of Mr Olewnik. It turned out to be false information.","26.On 1 June 2004 the police arrested B in connection with the kidnapping of Mr Olewnik. They searched B\u2019s flat but failed to find EUR40,000 of the ransom hidden under a sofa. Although the police by then had various pieces of evidence linking him with the kidnapping, B was released. The investigators nevertheless ordered that he be followed.","27.On 7 June 2004 an unmarked police car containing sixteen volumes of original documents comprising the main case file on the investigation was stolen in Warsaw. The prosecutor subsequently charged two police officers in connection with the loss of the file (see paragraph 48 below).","28.Following the incident involving the loss of the file, the case was removed from the team led by R.M. On 18 August 2004 the Chief of Police in Warsaw created a special investigative team consisting of police officers from the Central Investigative Bureau in Warsaw (Centralne Biuro \u015aledcze, CB\u015a) and from P\u0142ock. They were led by G.K.","29.The team led by G.K. proceeded to analyse the communications made from Mr Olewnik\u2019s mobile telephone in the period after the kidnapping (the telephone had remained active for several months after October 2001).","30.On 15 April 2005 the police requested and received a CCTV recording from a supermarket showing that A had bought the mobile telephone used by the kidnappers for communication with the applicants on 28October 2001. The prosecutor only decided to start monitoring the communications made from this number in May 2005, even though the IMEI (International Mobile Equipment Identity) number had been known from the start of the investigation. On 5 May 2005 the cashier who had sold the telephone to A was interviewed as a witness for the first time and a facial composite image was made. On the basis of photographs shown by the police, the cashier identified A as the person who had bought the telephone. The cashier also stated that the police had already come to ask her about the telephone in 2001 and taken a CCTV tape. The original video-recording was lost from the file on an unspecified date.","31.In June 2005 the police conducted searches of the homes of C, D andI, and arrested A. He was released without charge after forty-eight hours.","32.In November 2005 a witness, P.S., made a statement and gave the names of the individuals who had allegedly kidnapped Mr Olewnik.","33.Afterwards, B and A were arrested on charges of the kidnapping alleged by the witness.","34.In January and February 2006 the biological (hair) and olfactory evidence collected at the house of Mr Olewnik directly after his kidnapping in October 2001 was sent for expert examination. A DNA examination of the hair was carried out in July 2006.","35.On 4 April 2006 the first applicant requested that the investigation be transferred to another prosecution service, alleging that the proceedings up until that point had been manifestly ineffective. On 14 May 2006 another investigative team took over the case, this time composed of officers specialising in organised crime from the Police Headquarters in Warsaw. On 13June 2006, supervision of the investigation was handed over to the Olsztyn Regional Prosecutor.","36.On 27 October 2006, having been presented with the biological evidence found at the crime scene, B confessed to kidnapping MrOlewnik. He indicated where the body was buried.","37.Afterwards, other members of the gang were arrested by the police.","38.On 9 August 2007 the Olsztyn Regional Prosecutor lodged a bill of indictment with the P\u0142ock Regional Court against twelve individuals for participation in the kidnapping and murder of Mr Olewnik.","39.On 31 March 2008 the P\u0142ock Regional Court convicted ten individuals of participation in a criminal gang set up with the intention of kidnapping Mr Olewnik, as well as other offences. Among those ten individuals, B and C were convicted of the murder of MrOlewnik and sentenced to life imprisonment. Others were given prison sentences ranging from one to fourteen years (II K 119\/07). The conviction was based to a large extent on detailed explanations provided by B, C, D and F, who pleaded guilty. They also described the conditions in which Mr Olewnik had been held (see paragraph 10 above). The court also accepted that the leader of the gang had been A; however, he had died before the trial ended (see paragraph74 below).","In addition, the trial court ordered that the seven main members of the gang pay the second applicant 1,200,000 Polish zlotys (PLN) in compensation for pecuniary damage (odszkodowanie) for the ransom which had been paid by him on 24 July 2003 (under Article 415 \u00a7 1 of the Code of Criminal Procedure). The court allowed a request by the second applicant for interest to be paid on that sum from the date of the civil claim being lodged, that is to say 11 October 2007. The court calculated the amount of compensation on the basis of the average exchange rate between 2003 and 2008 and considered that it was equivalent to EUR 300,000.","The applicants participated in the proceedings as auxiliary prosecutors.","40.All parties appealed against the judgment.","41.On 8 December 2008 the Warsaw Court of Appeal amended the judgment but upheld the convictions and sentences of the accused (IIAka306\/08).","42.On 8 January 2010 the Supreme Court upheld the judgment (IIKK153\/09).","43.The second applicant sought the enforcement of the judgment as regards payment of the compensation ordered by the court. However, the court bailiff was unsuccessful in recovering the money from the debtors as they either had no assets or income or died before the enforcement proceedings ended (see paragraphs 74, 75 and 76 below).","44.On 21 December 2009 the police discovered previously overlooked forensic evidence (blood) at the house of Mr Krzysztof Olewnik. The applicants submitted that there had by then been almost ten searches of the house, each revealing previously overlooked evidence.","45.In 2010 the body of Mr Olewnik was exhumed from his grave but his identity was later reconfirmed. In 2011 forensic experts prepared opinions answering the prosecutor\u2019s question regarding, in particular, errors committed during the first post-mortem examination (see also paragraph71 below).","46.An investigation into the participation of other unidentified individuals in the kidnapping and murder of Mr Olewnik is pending before the Gda\u0144sk Prosecutor of Appeal (Ap V Ds 11\/09). The investigation is being carried out by a team of police officers from the Central Investigative Bureau at the Police Headquarters in Warsaw. It appears that in the course of the investigation the police questioned and briefly detained J.K., a friend and business partner of Mr Krzysztof Olewnik.","47.The Government, having been asked, did not provide any significant information pertaining to the further course of the investigation. They submitted that information pertaining to the ongoing investigation was confidential. The applicants submitted that no meaningful steps had been taken by the authorities to clarify the circumstances of the kidnapping and death of MrOlewnik.","48.Following the loss on 7 June 2004 of the entire sixteen-volume case file, which had been left by two police officers in a car in Warsaw, the prosecutor opened an investigation in respect of them. The investigation was discontinued on 7September 2004.","49.On 7 February 2005 that decision was quashed by the State Prosecutor, who ordered an investigation into possible negligence on the part of the police officers, which had resulted in the loss of the file.","50.On 14 May 2005 the investigation was discontinued by the Warsaw District Prosecutor. The Government submitted that the issue remained under examination in the ongoing investigation (see paragraph 47 above).","(a) M.G.","51.On 22 March 2006 Police Officer M.G. was arrested and charged with passing on information from police databases to unauthorised persons. The Government submitted that the proceedings were still pending, but were not directly connected to the case of Mr Olewnik.","(b) Decision of 31 December 2013","52.On 31 December 2013 the Gda\u0144sk Prosecutor of Appeal (ApVDs12\/09) discontinued an investigation into allegations of negligence by various police teams in dealing with the kidnapping of MrOlewnik, including instances of hampering the pending investigation by entering false IMEI numbers in the police database. The prosecutor discontinued as time-barred an investigation into whether the search of the victim\u2019s house had been conducted in breach of the relevant standards. The prosecutor also investigated whether there had been appropriate supervision of the investigative team \uf02d at various levels within the police \uf02d and considered that no offence had been committed. The prosecutor discontinued an investigation concerning the period between May 2006 and May 2008 on the grounds that the investigation against A, B, C and other members of the gang had been terminated too early and in breach of the relevant provisions, and that no offence had been committed.","(c) R.M. and M.L.","53.On 27 June 2007 the Olsztyn Regional Prosecutor opened an investigation into possible negligence on the part of the police officers and prosecutors in the years 2001 to 2005 during the handling of Mr Olewnik\u2019s case (Ap Ds 12\/09). The investigation was opened in response to a formal notification made by the second applicant that an offence had been committed.","54.On 24 April 2008 the Olsztyn Regional Prosecutor took the decision to arrest three police officers: R.M., M.L. and S.C. They were arrested on 28April 2008 but released following a decision of a court. On 29 April 2008 the police officers were charged with, inter alia, negligently performing their duties.","55.The investigation was transferred to the Gda\u0144sk State Prosecutor and later the Gda\u0144sk Prosecutor of Appeal.","56.On 21 December 2012 the Gda\u0144sk Prosecutor of Appeal (ApVDs54\/12) issued an indictment against R.M. and M.L. The police officers were charged with several counts of abuse of power (proscribed by Article 231 of the Criminal Code), allegedly committed between 31 October 2001 and 17August 2004, when they had been in charge of the investigation into the kidnapping of Krzysztof Olewnik. The prosecutor also considered that the offences amounted to subjecting a person to a risk of danger, an offence proscribed by Article 160 \u00a7 1 of the Criminal Code. The bill of indictment itself was 333 pages long and relied on the statements of 655 witnesses who had been interviewed in the course of the investigation. The prosecutor sought the examination by the court of 909 pieces of evidence and the hearing of seventy-one witnesses. The applicants participated in the proceedings as auxiliary prosecutors.","57.The police officers were charged with abuse of power, in particular: failing to gather evidence that could have been provided by the sales assistant from the supermarket who had been able to identify A; failing to investigate the anonymous letter of January 2003 which had named the individuals involved in the kidnapping as B and C; delays in analysing the calls made by the kidnappers using a known telephone SIM card, which would have linked them to A and C; failing to supervise the handover of the ransom on 24 July 2003; and the destruction of two pieces of evidence resulting from the monitoring of a mobile telephone related to the kidnapping.","58.On 10 December 2013 the P\u0142ock Regional Court acquitted both police officers. The court considered the charges under Article 160 of the Criminal Code to be ill-founded and, moreover, time-barred since September 2013. As regards the offence of abuse of power under Article231 of the Code, the court held that the actions and omissions attributed by the prosecutor to the two accused could only be examined from the perspective of unintentional recklessness or carelessness. Such an offence would fall under Article 231 \u00a7 3 of the Criminal Code. The court was of the view that the events with which the defendants had been charged should have been taken as individual offences, which \u2212 as such \u2212 would have become time-barred on various dates in 2013. In defence of the police officers, the court noted, among other things, that the investigation should have been led by the prosecutor, who should have been instructing the police as to what action to take. In the investigation the prosecutors had mostly been passive. The court further analysed the evidence against the defendants as regards each charge brought against them and concluded that they had not caused serious damage, as required by Article 231 \u00a7 3 of the Criminal Code.","59.On 14 October 2014 the \u0141\u00f3d\u017a Court of Appeal upheld the judgment. The offences became time-barred on 17 August 2014, which precluded the court from assessing the case on the merits. The applicant received a copy of that judgment on 1 December 2014.","(d) H.S.","60.On 25 January 2013 the Gda\u0144sk Prosecutor of Appeal (ApVDs12\/09) discontinued an investigation against H.S., another police officer from P\u0142ock who had dealt with the case between 29 October 2001 and May 2006, as no offence had been committed. The police officer had been charged with abuse of power in breach of Article 231 of the Criminal Code for, in particular, failing to adduce as evidence items found by the burned-out BMW car, the video-recording from the supermarket obtained in November 2001 showing one of the kidnappers, and the video-recording from the petrol station where the kidnappers had abandoned the telephone that had been used in their communications with the family, which had delayed the discovery of the perpetrators and hindered the release of MrOlewnik, and had consequently resulted in his death on 5 September 2003. The officer had also been charged with failing to take any action following the anonymous letter of 15 January 2003 which had named the true perpetrators of the crime and described the circumstances thereof.","61.In the opinion of the prosecutor, the police officer in question either had no information about the events on which the charges were based or his omissions had not been intentional. Given the circumstances of the case, the police officer could not be held criminally liable for the final outcome of the case, namely the murder of the victim by other individuals.","62.On 22 August 2013 the P\u0142ock District Court dismissed an appeal lodged by the first applicant against the decision of 25 January 2013 and upheld it. The court agreed that there had been many mistakes and omissions in the case; however, there had not been enough evidence to consider that police officer H.S. had committed an offence.","(a) Main investigation","63.On 18 December 2012 the Gda\u0144sk Prosecutor of Appeal decided to discontinue investigations concerning several prosecutors who had dealt with the case (ApV Ds 12\/09). In that set of proceedings no charges had been brought against the prosecutors.","64.The following allegations of abuse of power, prohibited by Article231 of the Criminal Code and allegedly committed by various prosecutors, to the detriment of Krzysztof Olewnik and the public interest, were not pursued owing to the statute of limitations:","(i)negligence on the part of A.N. on 27 October 2001 for failing to personally oversee the inspection of the property and supervise the collection of evidence by the police, which he was obliged to do by law;","(ii)negligence on the part of L.W. in the period from 29 October 2001 to 25November 2002 for, in particular, incorrectly analysing the case, failing to supervise the police\u2019s actions, and following incorrect procedures after obtaining evidence from telephone conversations, leading to substantial delays in the discovery and arrest of the perpetrators of the kidnapping; and","(iii)negligence on the part of the P\u0142ock Regional Prosecutor, who supervised the work of L.W. in the period from 31 October 2001 to 25November 2002, for not following the rules of correct supervision, which had contributed to many of the mistakes that had been committed.","Allegations of negligence on the part of other prosecutors who had been involved in the case throughout the years were also investigated and dismissed.","65.As regards point (i) above, concerning the actions of the prosecutor A.N., who had been on duty when the kidnapping was discovered, the investigation revealed that he had committed numerous acts of negligence on 27 October 2001. The seriousness of those acts, in spite of clear legal provisions requiring prosecutors to take the initiative in such circumstances, did not allow them to be classified as unintentional. However, the proceedings to finally establish the criminal liability of A.N. had had to be discontinued owing to the statute of limitations regarding the offences in question.","66.As regards point (ii) above, concerning the actions of the prosecutor L.W. during a period of over one year, the investigators noted, on the one hand, his low level of involvement, multiple mistakes, and omissions. On the other hand, they acknowledged that he had acted within a legal and organisational framework which had made his work more difficult. L.W. was a district prosecutor with a long list of pending cases, to which even more had been added during the time he had been working on the Olewnik case. When district prosecutors were assessed, particular attention was paid to their output and the number of cases completed. The internal organisation of the prosecution service was such that this prosecutor had received no support from his superiors, even though he had not had any experience of this type of case.","67.The decision of 18 December 2012 ended with the following conclusion:","\u201cSumming up the above analysis, one cannot ignore the fact that the causes behind the failures of the police and prosecution service, resulting in the dramatic consequence of the death of Mr Olewnik, lay much deeper than individual errors committed by particular prosecutors (as was also noted by the Parliamentary Commission). The whole system of operation of the prosecution service, as well as the legislative and executive powers, should be held responsible for this failure. They had failed to create a proper legal and financial structure for the prosecution service in which events as important as kidnappings would immediately be transferred to prosecutors and police officers who were prepared for dealing with them. Such a structure would concentrate all measures and attention on freeing the imprisoned victim. The law-enforcement organisation failed in the case of Mr Olewnik, and that assessment cannot be ignored, despite the ultimately successful outcome of the work of the prosecutor R.W. and the team from the Central Investigative Bureau of the Police Headquarters, who were able to initiate, and to a large extent finalise, the discovery and capture of the perpetrators of his kidnap and murder.\u201d","(b) Other information","68.On 30 October 2009 the Disciplinary Court within the Prosecutor General\u2019s Office acquitted C.K., the Olsztyn Regional Prosecutor. The disciplinary proceedings had been initiated at the second applicant\u2019s request.","69.On 16 April 2013 the Gda\u0144sk Prosecutor of Appeal discontinued an investigation (Ap V Ds 12\/09) into allegations of negligent performance of official duties in breach of Article 231 of the Criminal Code (niedope\u0142nienie obowi\u0105zk\u00f3w s\u0142u\u017cbowych) in the period between 27October 2001 and 10August 2007. The investigation had been directed against representatives of the central administrative authorities of the Republic of Poland, in particular the President, the Prime Minister, the Minister of Justice, the Prosecutor General, the Minister of Internal Affairs and Administration, and members of both chambers of Parliament, on account of their failure to take action aimed at attaining the effective termination of the criminal proceedings in the case of the kidnapping of Krzysztof Olewnik in accordance with the provisions of the Code of Criminal Procedure and other laws. Their lack of action had been to the detriment of Mr Olewnik and his closest relatives and against the public interest, as it had hindered his release, delayed the discovery and arrest of the perpetrators of the kidnapping and murder, and resulted in the loss of certain pieces of evidence.","70.The prosecutor concluded that, in the light of the facts and the law, there were no grounds for charging the highest-ranking civil servants with any criminal offence. In particular, there were no grounds for examining whether the Minister of Justice could be held criminally liable for the flawed investigation.","71.On 28 December 2012 the Gda\u0144sk Prosecutor of Appeal indicted a forensic expert, J.D., and the head of the forensic laboratory in Olsztyn, B.Z., before the Elbl\u0105g District Court (Ap V Ds 63\/12). The charges concerned flaws discovered in 2006 concerning the examination and identification of the body of Krzysztof Olewnik. In particular, the bone and tissue samples taken for DNA testing to confirm the identity of the deceased had afterwards disappeared. All attempts to find those pieces of evidence had failed and it had been necessary to exhume the body in 2010 in order to confirm that it was that of Krzysztof Olewnik (see paragraph 38 above).","72.The proceedings are pending, with the second applicant participating as an auxiliary prosecutor.","73.On 12 December 2006 P.S., the main witness who had named the kidnappers, died (see paragraph 26 above). Before his death he had complained about receiving threats which, in the way they were worded, showed that the details of his statements to the authorities could have been leaked to the perpetrators. An investigation was opened into the threatening of a witness, but no action was taken to trace any possible leak from within the investigative team. The witness apparently died of a long-term illness, so his death was not investigated.","74.On 18 June 2007 A, the alleged leader of the kidnapping gang and owner of the house in which Mr Olewnik had been kept, committed suicide while detained in Olsztyn Remand Centre. Earlier that day he had consulted his case file and had been searched upon returning to his cell; he had been behaving normally.","A was found hanged in his single cell (in a half-sitting position resembling someone watching television, with one finger of his left hand raised \uf02d it had been taped with sellotape to the window bars). He left a will and a letter to his family. The post-mortem examination revealed traces of amphetamine and alcohol in his body.","On 31 July 2008 the Olsztyn District Prosecutor decided to discontinue an investigation into the sudden death of A and possible negligence on the part of the prison guards. On 8 March 2010 the Minister of Justice, the Prosecutor General, decided to reopen the investigation into the death. The investigation was eventually discontinued on 29 April 2011.","75.On 4 April 2008 B, who had been sentenced to life imprisonment for the murder of Mr Olewnik, committed suicide while detained in P\u0142ock Prison. The doctor performing the post mortem noted injuries on the deceased\u2019s arms which could have been sustained if he had been held by his arms and forced into a certain position, or caused by blows inflicted just before his death. On 31December 2010 the Ostro\u0142\u0119ka Regional Prosecutor discontinued an investigation into the sudden death of B and possible negligence on the part of the prison guards. B\u2019s family did not appeal and the decision became final.","76.On 19 January 2009 C, who had been sentenced to life imprisonment for the murder of Mr Olewnik, committed suicide while detained in P\u0142ock Prison. On 13January 2011 the Ostro\u0142\u0119ka Regional Prosecutor discontinued an investigation into the sudden death of C and possible negligence on the part of the prison guards. It was concluded, for instance, that a rib fracture sustained by C could have had happened while attempts were being made to resuscitate him. C\u2019s family did not appeal and the decision became final.","77.A, B, and C had been declared so-called \u201cdangerous detainees\u201d and had been subjected to various limitations in their contact with other detainees and many other security measures. In particular, they were detained in single cells monitored by CCTV, their contact with other detainees was severely limited, they were subjected to strip searches every time they left the cell and their cells were searched daily.","78.While detained, B and C refused to go out for their daily walks and remained in their individual cells; it appears that B had refused to go for daily walks since September 2006. C was transferred to P\u0142ock Prison only ten days before his death. They indicated to the authorities that they were in fear of their lives.","79.On 12 July 2009 M.K. committed suicide. He was the prison officer at Olsztyn Remand Centre on duty on the day A had committed suicide.","80.On 20 January 2009 the Prime Minister accepted the resignation from the post of Minister of Justice of MrZ. \u0106wi\u0105kalski, who \u201cas the head of the services responsible for investigating the case of the kidnapping and murder of Mr Olewnik, [bore] direct responsibility for the omissions and failures of those services\u201d.","81.At the same time the following people were dismissed: the State Prosecutor, the Deputy Minister responsible for the Prison Service, the Head of the Prison Service and the Governor of P\u0142ock Prison.","82.On 13 February 2009 the Polish Sejm (lower house of Parliament) set up a Parliamentary Inquiry Commission (\u201cthe Commission\u201d) to investigate the appropriateness of the actions of the public authorities in the criminal proceedings concerning the kidnapping and death of Mr Krzysztof Olewnik (Komisja \u015aledcza do zbadania prawid\u0142owo\u015bci dzia\u0142a\u0144 organ\u00f3w administracji rz\u0105dowej w sprawie postepowa\u0144 karnych zwi\u0105zanych z uprowadzeniem i zab\u00f3jstwem Krzysztofa Olewnika). The Commission held 136 sessions, at which it interviewed 109 individuals, some of them several times. The Commission requested information from various ministries and other State entities, as well as various intelligence agencies. It also examined 395 volumes of case files collected in the case concerning the kidnapping of MrOlewnik. Lastly, it examined expert opinions on the police\u2019s work (methodology, cooperation between services, evidence) and on issues relating to the Prison Service.","83.At the session of 17May 2011 the Sejm adopted an extensive final report (235 pages), which, in so far as relevant, stated:","\u201cThe Sejm outlined to the Commission the following tasks, thereby setting out its remit:","(1)examination of the appropriateness of the actions of the prosecution service and the police in the criminal proceedings concerning the kidnapping and murder of Krzysztof Olewnik;","(2)examination of the appropriateness of the actions of the [Prison Service], police and prosecution service as regards the execution of the pre-trial detention and prison sentence in the criminal proceedings referred to in point 1 above;","(3)examination of the appropriateness of the actions of the public administration bodies when dealing with the criminal proceedings referred to above under point 1 and the execution of the pre-trial detention and prison sentence in the criminal proceedings in question.\u201d","84.As preliminary remarks the Commission stated:","\u201cThe Commission is aware that procedural and operational activities that are ongoing may change some elements that had been established by the investigators or the courts. They may not challenge, however, the fact that, beyond any doubt, Krzysztof Olewnik was held hostage in order to force [his father] to pay a ransom, [that] his deprivation of liberty involved particular torment, and [that] after ransom money had been transmitted by the family, he was murdered.\u201d","85.Concerning the initial reaction of the police to the disappearance of MrOlewnik, the Commission noted the following main shortcomings: the police officer leading the forensic team had been inexperienced, had not secured the perimeter of the crime scene, had collected blood samples carelessly, had not fully examined the property and had overlooked many pieces of evidence. As an example of this incompetence the Commission observed that, eight years after the events, a blood sample from an unidentified man had been found under the sofa in the victim\u2019s living room. A further shortcoming was the fact that some of the officers who had attended the party at Mr Olewnik\u2019s house on the night of his kidnapping had been part of the investigation team.","86.The Commission examined the work of the team led by R.M., who had been appointed to deal with the case between 31 October 2001 and 18August 2004. The analysis, which extended to over forty pages, revealed a multitude of omissions, including basic mistakes in modern policing and the total passivity of the team led by R.M. The police had not used the technical and operational methods available to trace people (for instance, by searching police databases), communications (for instance, monitoring mobile and landlines) and items (such as marking and tracing the banknotes handed over as a ransom). Some of the shortcomings attributed to the team included:","(a)failure until May and June 2005 to make use of the witness who had sold the telephone to A and of the CCTV footage from the supermarket. Even many years later the witness had still been able to identify A, because he had reminded her of a famous singer. The original video-recording had been obtained by Police Officer M.L. in 2001 but had later been lost in unknown circumstances;","(b)no real examination of the phonecards and SIM cards used by the kidnappers;","(c)no meaningful follow-up of the anonymous letter received in January 2003;","(d)no support offered to the victim\u2019s desperate family, who had been left to negotiate with the kidnappers on their own;","(e)\u201cimprovised and uncontrolled\u201d supervision of the handover of the ransom money on 24 July 2003 even though the police had known about the operation since 11June 2003 and had had time to prepare for it. Moreover, the family had made copies of the banknotes handed over as a ransom, but the police had failed to secure this evidence, so on several occasions when 500-euro notes had been presented in banks or at exchange kiosks, they could not be traced to the case; the serial numbers of the banknotes had not been transferred to the Banking Central Supervision Authority until 21December 2004, when the case had been taken over by a different police team;","(f)failure to investigate and prosecute those responsible for the loss of the entire case file when the car in which it had been placed had been stolen on 7 June 2004; and","(g)two documented cases of destruction of important pieces of evidence.","87.The Commission also commented that the team led by R.M. had not been supervised in any meaningful way by M.K., the Deputy Chief of the Radom Regional Police, even though this had been required by law. Other levels of supervision within the police had also been \u201cindifferent\u201d and tainted by personal friendships and business links.","88.The Commission noted that the work of the police should be supervised by a prosecutor, who must direct the investigation. In the instant case, the first few years, in particular, had been characterised by the passivity of the various prosecutors. The prosecutor L.W., who had supervised the investigation while it had been handled by the team led by R.M., had been particularly at fault. The Commission concluded that the prosecutor \u201c[had not had] a thorough knowledge of the information collected in the course of the investigation\u201d, \u201c[had been] unaware that the team [had] also included police officers who had attended the party at the victim\u2019s house\u201d, \u201c[had] not check[ed] that his instructions were being carried out\u201d, and had \u201cfailed to monitor the handover of the ransom\u201d. He had never visited the victim\u2019s house, had been unaware of the existence of the recording from the supermarket, and so forth. In general terms, he had been inexperienced in cases of this type, and had remained passive.","89.The Commission also examined the level of supervision within the prosecution service and considered it weak. The case had overwhelmed even the superior prosecutors, who had wanted it to be removed from their sphere of responsibility.","90.The prosecutors who had taken over the case from L.W. had committed further errors. These included failure to take any action following the anonymous letter of 14January 2003, a lack of supervision of the actions relating to the handover of the ransom, a six-month delay before private operators had been asked for the numbers of the telephone cards used in communications by the kidnappers, and so forth.","91.The Commission further examined the actions carried out by the second police team led by G.K., which was appointed on 18 August 2004 to investigate the case and which dealt with it until 14 May 2006. It appears that this team was influenced by the theory that Mr Olewnik had faked his own kidnapping in order to extort money from his father. In general terms the Commission noted that the investigation had clearly speeded up and that the new prosecutors who had taken over the case had been diligent. At this stage the prosecutor had examined two theories: one in which Mr Olewnik had been kidnapped by an organised criminal group or a group linked to the police, and a second which posited his \u201cself-kidnapping\u201d.","92.As regards the subsequent prosecutors and supervising prosecutors, the Commission observed that they had carried out many actions aimed at correcting the errors committed earlier. However, as one of them had stated before the Commission: \u201cin this case the majority of the errors were committed in the initial stages, which in a criminal case of this nature had a decisive impact on the outcome of the case. We will never know what would have happened if all the initial actions had been carried out correctly, starting with the examination of the place [of kidnapping] and the securing of the evidence.\u201d","93.The Commission also examined how the case had been supervised by the Minister of Justice, the Prosecutor General and the Minister of Internal Affairs, who remained the official supervisors of the police. It noted that the family of the victim had met many ministers and politicians in order to attract their attention to the case. The Commission noted that the system of hierarchical supervision was tainted by \u201cmisguided corporate solidarity\u201d. On one occasion, high-ranking prosecutors examining the case on behalf of the Minister of Justice had criticised the ongoing investigation as \u201cdramatic and embarrassing\u201d, and yet no disciplinary or penal consequences had followed. As regards the control of the Minister of Internal Affairs over the police force, the Commission noted that the first of the ministers concerned had been unaware of the extent of his authority in this respect. Subsequent ministers had likewise failed to make use of the legal instruments of control over the police which they had had at their disposal.","94.The Commission concluded its report by stating that the actions of the police and the prosecutors between 2001 and 2004 had to be \u201cassessed negatively\u201d. The report stated:","\u201cWe find that the police officers who led the investigation and the supervising prosecutors bear legal and moral responsibility for the errors [in the investigation] which were clearly committed during this period.","In the Commission\u2019s opinion, there were no decisive actions on the part of the investigative authorities in the period immediately after the kidnapping of Krzysztof Olewnik. Visible sluggishness, errors, recklessness, and a lack of professionalism on the part of the investigators resulted in the failure to discover the perpetrators of the kidnapping, and consequently in the unjustifiable and unimaginable suffering to which [the victim] was subjected, and ultimately, his death.","The high number and the nature of the omissions and errors made by some police officers and prosecutors investigating the case led the Commission to explore a hypothesis positing that there had been intentional and purposeful actions by public officials aimed at covering their tracks, destroying evidence, creating false operational versions and, consequently, that some of them had cooperated with the criminal gang which kidnapped and murdered Krzysztof Olewnik. However, this hypothesis can only be verified in criminal proceedings carried out by the Gda\u0144sk Prosecutor of Appeal.","... taking the so-called Olewnik case as an example of the actions of the central administration could undermine people\u2019s trust in the State.","The Commission is persuaded that the behaviour of the central administration could have breached people\u2019s constitutional rights.","Moreover, it pointed to a lack of skill on the part of those responsible for the security of individuals, revealed shortcomings in procedures concerning the monitoring of law enforcement in Poland, and engendered a sense of helplessness and weakness as regards the State authorities in their attitude to the perpetrators of crime, as well as a sense of injustice.\u201d","In its conclusions the Commission also suggested that the question of the criminal liability of some public servants should be examined, but that in most cases the offences would be time-barred.","95.The Commission lastly welcomed the changes in law and practice following scrutiny of the Krzysztof Olewnik case. In particular, it welcomed the creation of a Council for Victims of Crime, under the auspices of the Minister of Justice, and of the Charter of Victims\u2019 Rights. Moreover, the Prosecutor General decided that all cases concerning kidnappings would automatically be transferred to the investigative branches of the regional prosecution services and examined from the outset with the help of a forensic specialist. A joint team for handling cases of kidnapping involving a ransom was created, grouping together representatives of the Minister of Internal Affairs, Chief of Police and Head of the Internal Security Agency. The Commission also proposed a general reform of the system, with the aim of assisting and protecting witnesses in criminal proceedings.","96.Lastly, the Commission made a series of proposals for systemic reforms regarding the police and prosecution service. Improvements were needed as regards the manner in which the work of prosecutors was supervised internally. It reiterated the need for prosecutors to specialise to a certain degree and recommended that the divisions dealing with organised crime under the Prosecutor of Appeal should have more independence and be attached directly to the Prosecutor General. It considered that in cases involving the disappearance and abduction of individuals, the police and prosecution service should have a common action plan, with formalised guidelines detailing the recommended action to be taken, which would be distributed to all entities in the country. One of the elements of the plan would be to ensure that when certain criteria were met, the case would immediately be transferred to a specialist prosecutor. The Commission recommended that there should be clear rules regulating when a prosecutor could be removed from a case. It also noted that the prosecutor did not have at his disposal, either previously or at the current time, any legal instrument that would allow him to compel the police, or any other service, to carry out particular investigative (operational) activities or examine their results.","The recommendations for the police included training courses, increased supervision, and a restructuring of the internal organisation of the police force and its support services, such as forensic laboratories.","97.The Committee also presented conclusions regarding the recommended reform of the functioning of the Prison Service so as to offer an effective form of protection to prisoners and to prevent suicides. Lastly, the Commission examined confidentiality laws, finding that far too often the pretext of classification as a \u201cState secret\u201d had been invoked to \u201cprotect corrupt and incompetent civil servants\u201d.","98.17 November 2011 the Gda\u0144sk Prosecutor of Appeal\u2019s Office issued two press releases concerning the pending investigation into the death of MrOlewnik (see paragraph 46 above). The applicants considered that the press releases included statements which hinted that the family had been withholding evidence from the authorities. Both applicants brought civil actions for compensation from the State Treasury for a breach of their personal rights in connection with those statements. Both actions were dismissed.","99.The relevant provisions of the Criminal Code provide as follows:","Article 160 (exposure to danger)","\u201c1.Anyone who exposes a human being to an immediate danger of loss of life, serious bodily injury, or a serious impairment of health shall be subject to the penalty of deprivation of liberty for up to three years.","2.If the perpetrator has a duty to take care of the person exposed to danger, he shall be subject to the penalty of deprivation of liberty for a term of between three months and five years.\u201d","Article 231 (abuse of power)","\u201c1.A public official who, overstepping his powers or not fulfilling his duties, acts to the detriment of public or private interests shall be liable to a prison term of up to three years.","...","3.If the perpetrator of the act specified in [paragraph] 1 acts unintentionally and causes serious damage, he shall be liable to a fine, or the penalty of restriction of liberty, or deprivation of liberty for up to two years.\u201d","Article 101 (statute of limitations)","\u201c1.Punishment for an offence shall be subject to limitation if, from the time of commission of the offence, the [following] period has expired:","(1)Thirty years \u2013 if an act constitutes the serious offence (zbrodnia) of homicide;","(2)Twenty years \u2013 if an act constitutes another serious offence;","(2a)Fifteen years \u2013 if an act constitutes an offence rendering the offender liable to a prison term exceeding five years;","(3)Ten years \u2013 if an act constitutes an offence rendering the offender liable to a prison term exceeding three years;","(4)Five years \u2013 in respect of other offences ...\u201d","100.Pursuant to Article 102, if during the limitation periods referred to in the above provision an investigation in respect of a person has been opened, punishment for the offences specified in Article 101 \u00a7 1 (1) to (3) is subject to limitation after ten years and for other offences after five years from the end of the relevant periods.","101.Article 415 \u00a7 1 of the Code of Criminal Procedure, as in force at the material time, provided that in the event of a conviction, the trial court could allow or dismiss a civil claim."],"144":["A.Background","10.In May 2008 the first applicant turned to the child welfare services because she was pregnant and was in a difficult situation: she did not have a permanent home and was temporarily staying with her parents.","11.On 10 June 2008 the first applicant and the putative future father, Z, visited a gynaecological polyclinic at the regional hospital. According to the medical notes recorded that day, the doctor was informed that the first applicant had had a late abortion in October 2007 and that she also wanted to abort this time. A chlamydia test and an ultrasonography were carried out, and the first applicant and Z informed that an abortion would not be possible.","12.On 23 June 2008 the hospital confirmed that the result of the chlamydia test taken on 10 June 2008 was positive. As one of the measures taken by the birth clinic to monitor the first applicant and her situation, the doctor noted that a social worker would make contact with the child welfare services, in agreement with the first applicant. A social worker, J.T., at the hospital noted the following day that the first applicant had expressed a strong wish for a place at a parent-child institution on the grounds that she was limited on account of a brain injury (begrensninger p\u00e5 grunn av hjerneskade) sustained following an epileptic seizure; she had no home, and a difficult relationship with the child\u2019s putative father and other family members; and that she wanted help to become as good a mother as possible.It was noted by the hospital that any stay at a parent-child institution would be voluntary and that the first applicant and her child could leave whenever they wished.","13.On 1 July 2008 the hospital notified the child welfare services that the first applicant was in need of guidance concerning the unborn child and monitoring with regard to motherhood. The hospital also indicated that she needed to stay at a parent-child institution. The child welfare services took on the case, with the first applicant\u2019s consent. She agreed to stay at a parent\u2011child institution for three months after the child was born, so that her ability to give the child adequate care could be assessed.","14.On 16 July 2008 a meeting with the child welfare services took place. A psychologist, I.K.A., from the Office for Children, Youth and Family Affairs attended the meeting. According to the notes from the meeting, it was agreed that the first applicant should receive psychological counselling on a weekly basis in the social worker\u2019s absence during the summer, and that the psychologist would give subsequent reports to the child welfare services.","15.On 16 September 2008 a formal decision was taken to offer the first applicant and her child a place at a parent-child institution for three months. The decision stated that the child welfare services were concerned about the first applicant\u2019s mental health and her ability to understand the seriousness of taking responsibility for a child and the consequences.","16.Some days earlier, on 9 September 2008, the child welfare services and the first applicant had agreed on a plan for the stay. In the plan it was stated that the main purpose of the stay would be to examine, observe and guide the first applicant in order to equip her with sufficient childcare skills. A number of more specific aims were also included, involving observation of the mother and child and examination of the mother\u2019s mental health (psyke) and maturity, her ability to receive, understand and avail herself of advice in relation to her role as a mother, and her developmental possibilities. Working with the first applicant\u2019s network was also included as an aim in the plan.","17.On 25 September 2008 the first applicant gave birth to a son, X, the second applicant. The first applicant then refused to provide the name of X\u2019s father. Four days later, on 29 September 2008, the first applicant and X moved to the parent-child institution. For the first five days X\u2019s maternal grandmother also stayed there with them.","18.On 10 October 2008 the parent-child institution called the child welfare services and expressed concern on the part of their staff. According to the child welfare services\u2019 records, the staff at the institution stated that X was not gaining sufficient weight and lacked energy. With regard to nappy changes, the staff had to repeatedly (gang p\u00e5 gang) tell the first applicant that there were still traces of excrement, while she continued to focus on herself.","19.On 14 October 2008 the staff at the parent-child institution said that they were very concerned about X and the first applicant\u2019s caring skills. It had turned out that the first applicant had given an incorrect weight for the baby and that X had, accordingly, lost more weight than previously assumed. Moreover, she showed no understanding of the boy\u2019s feelings (viser ingen forst\u00e5else av gutten sine f\u00f8lelser) and seemed unable to empathise with the baby (sette seg inn i hvordan babyen har det). The staff had decided to move the first applicant into an apartment on the main floor in order to get a better overview and to monitor her even more closely. The next meeting between the first applicant, the staff at the parent-child institution and the child welfare services had been scheduled for 24October2008, but the staff at the institution wanted to bring the meeting forward as they were of the view that the matter could not wait that long.","B.Proceedings to place X in emergency foster care","20.On 17 October 2008 a meeting between the parent-child institution, the first applicant and the child welfare services was held. The first applicant stated at the meeting that she wanted to move out of the institution together with her child, as she no longer wanted guidance. The staff at the institution stated that they were very concerned about the first applicant\u2019s caring skills. She did not wake up at night, and the boy had lost a lot of weight, lacked energy and appeared dehydrated. The health visitor was also very concerned, whereas the first applicant was not. The institution had established close 24-hour monitoring. Staff had stayed awake at night in order to wake the first applicant up to feed the child. They had monitored the first applicant every three hours round the clock in order to ensure that the boy received nourishment. They expressed the fear that the child would not have survived had they not established that close monitoring pattern. The child welfare services considered that it would create a risk if the first applicant removed the child from the institution. X was below critical normal weight (kritisk normalvekt) and in need of nutrition and monitoring.","21.In the decision taken on the same date it was also stated that the first applicant had given information about the child\u2019s father to the child welfare services, but that she had refused him permission to take a paternity test and to sign as father at the hospital. It was stated that the father wanted to take responsibility for the child, but that he did not yet have any rights as a party to the case.","22.It was decided to place X in an emergency foster home and that the first applicant and her mother should visit him for up to one and a half hours weekly. As to the boy\u2019s needs, it was stated that he had lost a lot of weight and accordingly needed close and proper monitoring. It was emphasised as very important that good feeding routines be developed. Further, according to the plan, the placement was to be continuously assessed by the first applicant, the emergency foster parents, a specialist team (fagteam) and the child welfare services. The municipality was to stay in contact with the emergency foster parents and be responsible for being in contact with and following up on the first applicant. Preliminary approval of the decision was given by the chair of the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker) on 21 October 2008.","23.On 22 October 2008 the first applicant appealed to the County Social Welfare Board against the emergency decision. She claimed that she and X could live together at her parents\u2019 house, arguing that her mother stayed at home and was willing to help care for X and that she and her mother were also willing to accept help from the child welfare services.","24.On 23 October 2008 a family consultant and a psychologist from the parent-child institution drew up a report of the first applicant\u2019s and her mother\u2019s stay there. The report referred to an intelligence test that had been carried out in which the first applicant had obtained a higher score than 67% of persons of her age on perceptual organisation (meaning organisation of visual material) and below 93% of persons her age on verbal understanding. On tasks that required working memory \u2013 the ability to take into account and process complex information \u2013 the first applicant had scored below 99% of persons her age. According to the report, the tests confirmed the clinical impression of the first applicant. Furthermore, the report stated that the institution\u2019s guidance had focused on teaching the first applicant how to meet the child\u2019s basic needs in terms of food, hygiene (stell) and safety. The first applicant had received verbal and hands-on guidance and had consistently (gjennomg\u00e5ende) needed repeated instructions and demonstration. In the staff\u2019s experience, the first applicant often did not understand what was told or explained to her, and rapidly forgot. In the conclusion the report stated, inter alia:","\u201cThe mother does not care for her child in a satisfactory manner. During the time the mother and child have stayed [at the parent-child institution] ..., the staff here ... have been very concerned that the child\u2019s needs are not being met. In order to ensure that the child\u2019s primary needs for care and food are met, the staff have intervened and closely monitored the child day and night.","The mother is not able to meet the boy\u2019s practical care needs. She has not taken responsibility for caring for the boy in a satisfactory manner. The mother has needed guidance at a very basic level, and she has needed advice to be repeated to her several times.","Throughout the stay, the mother has made statements that we find very worrying. She has expressed a significant lack of empathy for her son, and has several times expressed disgust with the child. The mother has demonstrated very little understanding of what the boy understands and what behaviours he can control.","The mother\u2019s mental functioning is inconsistent and she struggles considerably in several areas that are crucial to the ability to provide care. Her ability to provide practical care must be seen in the light of this. The mother\u2019s mental health is marked by difficult and painful feelings about who she herself is and how she perceives other people. The mother herself seems to have a considerable unmet care need.","Our assessment is that the mother is incapable of providing care for the child. We are also of the opinion that the mother needs support and follow-up. As we have verbally communicated to the child welfare services, we believe it to be important that especially close care is taken of the mother during the period following the emergency placement.","The mother is vulnerable. She should be offered a psychological assessment and treatment, and probably needs help in finding motivation for this. The mother should have an individual plan to ensure follow-up in several areas. The mother has resources (see the abilities tests) that she needs help to make good use of.\u201d","25.On 27 October 2008 the Board heard the appeal against the emergency placement decision (see paragraphs 22 and 23 above). The first applicant attended with her legal-aid counsel and gave evidence. Three witnesses were heard.","26.In a decision of the same day, signed by the Board\u2019s chairperson, the Board concluded that it had to rely on the descriptions given by the psychologist at the parent-child institution, who had drafted the institution\u2019s report, and the representative from the municipal child welfare services. According to those descriptions, the first applicant had been unable to care for X properly (betryggende) in entirely essential and crucial respects (helt vesentlige og sentrale omr\u00e5der). Furthermore, she had said that she wanted to leave the institution. It had been obvious that she could not be given care of X without creating a risk that he would suffer material harm. Afterwards, the first applicant\u2019s parents had said that they would be capable of ensuring that X was adequately looked after. However, the Board concluded that this would not provide X with sufficient security. The first applicant\u2019s mother had given evidence before the Board and had stated that during her stay at the parent-child institution she had not experienced anything that gave rise to concern with respect to the first applicant\u2019s care for X. This was in stark contrast to what had been reported by the psychologist. The Board also concluded that it was the first applicant who would be responsible for the daily care of X, not her mother.","27.On the same day, 27 October 2008, X was sent to a child psychiatry clinic for an assessment.","28.On 30 October 2008 the first applicant appealed against the Board\u2019s decision of 27 October 2008 (see paragraphs 25-26 above) to the City Court (tingrett).","29.On 13 November 2008 the first applicant visited X in the foster home; according to the notes taken by the supervisor, Z had received the result of a paternity test the day before which had shown that he was not the father. The first applicant stated that she did not know who the father could be. She could not remember having been with anyone else. The first applicant and the adviser from the child welfare services agreed that the first applicant would contact her doctor and ask for a referral to a psychologist.","30.On 21 November 2008 an adviser working with emergency placements (beredskapshjemskonsulent) at the Office for Children, Youth and Family Affairs produced a report on the implementation of the emergency measure. In the conclusion she stated:","\u201cThe boy arrived at the emergency foster home on 17\/10 with little movement in his arms and legs, and making few sounds. He could not open his eyes because they were red, swollen and had a lot of discharge. He was undernourished, pale and weak [(slapp)]. After a few days he started to move, make sounds and develop skin colour. He ate well at all meals, and enjoyed bodily contact. He opened his eyes upon receiving the correct medication and gradually started to be in contact with his surroundings. Good routines were put in place and he was closely followed up with respect to nourishment and development.","The boy has developed very well in all areas in the five weeks he has been living in the emergency foster home. The doctor and health visitors were satisfied with the boy\u2019s development and have monitored him closely. Bup [(Barne- og ungdomspsykiatrisk poliklinikk \u2013 the Children\u2019s and Young People\u2019s Psychiatric Out-Patient Clinic)] has also followed up on the boy and reported possible stress symptoms developed by the boy during the pregnancy or the first weeks of his life. The emergency foster parents have provided favourable conditions for the boy to work on his development, and this has worked well. The boy needs stable adults who can give him good care, appropriate to his age [(aldersadekvat omsorg)], and satisfy his needs in future.\u201d","31.On 28 November 2008 the municipality applied to the County Social Welfare Board for a care order, submitting that the first applicant lacked caring skills with respect to a child\u2019s various needs. They considered that X would rapidly end up in a situation in which he would be subjected to serious neglect if he were returned to the first applicant. As to contact rights, the municipality submitted that they assumed that it would be a matter of a long-term placement and that X would probably grow up in foster care. They stated that the first applicant was young, but that it was assumed that her capacity as a mother would be limited, at least in relation to X ([m]or er ung, men det antas at hennes kapasitet som mor vil v\u00e6re begrenset, i hvert fall i forhold til dette barnet).","32.On 5 December 2008 the team at the child psychiatry clinic, who had carried out six different observations between 3 and 24 November 2008, in accordance with the instructions of 27 October 2008 (see paragraph 27 above), set out their results in a report, which read, inter alia, as follows:","\u201c[X] was a child with significantly delayed development when he was sent to us for assessment and observation. Today he is functioning as a normal two-month-old baby, and has the possibility of a good normal development. He has, from what can be observed, been a child at high risk. For vulnerable children the lack of response and confirmation, or other interferences in interaction, can lead to more or less serious psychological and developmental disturbances if they do not receive other corrective relationship experiences. The quality of the earliest interaction between a child and the closest caregiver is therefore of great importance for psychosocial and cognitive development. [X] bears the mark of good psychosocial and cognitive development now.\u201d","33.The City Court, composed of one professional judge, one psychologist and one lay person, pursuant to section 36-4 of the Dispute Act (see paragraph 133 below), heard the appeal against the Board\u2019s decision in the emergency case (see paragraphs 25-26 and 28 above) on 12January2009. In its judgment of 26 January 2009 it stated first that an interim decision pursuant to the second paragraph of section 4-6 of the Child Welfare Act (see paragraph 122 below) could only be made if the risk of harm was acute and the child would suffer material harm if not moved immediately. It went on to state that the case concerned a child who had been practically newborn when the interim care order had been made, and that the placement had since been reconsidered several times following appeals on the part of the mother.","34.In its conclusion the City Court stated that it was in no doubt that X\u2019s situation had been serious when the interim care order had been issued. He had shown clear signs of neglect, both psychologically and physically. The City Court found that the \u201cmaterial\u201d harm requirement (vesentlighetskravet) in the second paragraph of section 4-6 of the Child Welfare Act (see paragraph 122 below) had been met. X was at the time of its judgment in better health and showed normal development. This was due to the emergency foster parents\u2019 efforts and follow-up. The City Court did not consider that the first applicant\u2019s ability to provide care had changed and feared that X would suffer material harm if he were now returned to her. This was still the case even if the first applicant lived with her parents and they supported her. It was her ability to provide care that was the matter of assessment.","35.Based on the above, the City Court did not find grounds to revoke the emergency care order pending a decision by the County Social Welfare Board on the question of permanent care.","36.The first applicant did not appeal to the High Court (lagmannsrett).","C.Proceedings for a care order","1.Proceedings before the County Social Welfare Board","37.The Board, composed of an administrator qualified to act as a professional judge, a psychologist and a lay person, in accordance with section 7-5 of the Child Welfare Act (see paragraph 122 below), held a hearing on the child welfare services\u2019 request for a care order (see paragraph31 above) on 17 and 18 February 2009. The first applicant attended and gave evidence. Seven witnesses were heard, including experts and the first applicant\u2019s parents, their neighbour and a friend of the family. At the hearing the child welfare services requested that X be taken into local authority care, placed in a foster home and that the first applicant be granted contact rights for two hours, four times per year, under supervision. The first applicant sought to have the request for a care order rejected and X returned to her. In the alternative, she asked for contact rights of a minimum of once per month, or according to the Board\u2019s discretion.","38.In a decision of 2 March 2009 the Board stated at the outset that, independently of the parties\u2019 arguments and claims, its task was to decide whether X was to be taken into care by the child welfare services. If a care order were issued, the Board would also choose a suitable placement and determine the contact arrangements.","39.The Board concluded that the fundamental condition set out in letter (a) of the first paragraph of section 4-12 of the Child Welfare Act had been met (see paragraph 122 below). In its opinion, a situation involving serious deficiencies in both psychological and practical care would arise if X were returned to live with the first applicant.","40.The Board emphasised that it had assessed the first applicant\u2019s ability as a caregiver and changes in her approach, not her condition or personality traits. However, the Board noted that the parent-child institution had considered the first applicant\u2019s inability to benefit from guidance to be linked to her cognitive limitations. Reference was made to conclusions drawn by the institution to the effect that the relevant test results were consistent with their daily observations (see paragraph 24 above). The tests carried out at the institution were also largely consistent with previous assessments of the first applicant, and also with the concerns reported by, inter alia, the psychologist at the Office for Children, Youth and Family Affairs in the summer of 2008 (see paragraph 14 above). In the Board\u2019s view, the above factors suggested that the first applicant\u2019s problems were of a fundamental nature and that her potential for change was limited (sier noe om at mors problematikk er av en grunnleggende karakter og at endringspotensialet er begrenset).","41.The Board stated that it had to conclude that a care order was necessary and in the best interests of X. As to a suitable placement, the Board stated that, having regard to his age and care needs, a foster home placement was clearly the best solution for X at the time. It issued a care order to that effect. Based on X\u2019s age and vulnerability, the Board also decided that he should be placed in enhanced foster care \u2013 an arrangement whereby the foster home was given extra assistance and support \u2013 at least for the first year.","42.Turning to the question of contact rights, the Board went on to state that, under section 4-19 of the Child Welfare Act (see paragraph 122 below), children and parents were entitled to contact with each other unless otherwise decided. When a care order was issued, the Board would determine the amount of contact and decisions regarding contact had to be in the child\u2019s best interests, as provided for by section 4-1 of the Child Welfare Act (ibid.). The purpose and duration of the placement also had to be taken into consideration when the amount of contact was determined.","43.On the grounds of the information available at the time of the Board\u2019s decision, the Board envisaged that X would grow up in the foster home. This was on account of (har sammenheng med) the first applicant\u2019s fundamental problems and limited potential for change (mors grunnleggende problematikk og begrensede endringspotensial) (see paragraph 40 above). This meant that the foster parents would become X\u2019s psychological parents, and that the amount of contact had to be determined in such a way as to ensure that the attachment process, which was already well under way, was not disrupted. X had to be given peace and stability in his everyday life, and he was assumed (det legges til grunn) to have special needs in that respect. In the Board\u2019s opinion, the purpose of contact had to be to ensure that he had knowledge of his mother.","44.Based on an overall assessment, including of the above factors, the amount of contact was set at two hours, six times per year. The Board stated that it had some misgivings as to whether this was too frequent, particularly considering X\u2019s reactions. However, it believed that contact could be somewhat improved by the child welfare services providing more guidance and adaptation and by a considerable reduction in the frequency of contact.","45.In the Board\u2019s opinion, it was necessary for the child welfare services to be authorised to supervise contact in order to ensure that X was properly cared for.","46.The Board\u2019s decision concluded with a statement to the effect that it would be for the child welfare services to decide on the time and place of the contact sessions.","2.Proceedings before the City Court","47.On 15 April 2009 the first applicant appealed to the City Court against the Board\u2019s decision that X should be taken into public care (see paragraphs 38-46 above). She submitted, in particular, that adequate conditions in the home could be achieved through the implementation of assistance measures and that the care order had been decided without sufficient assistance measures having first been implemented.","48.On 6 May 2009 the child welfare services sent the first applicant a letter in which she was invited to a meeting to discuss what sort of help they could offer her. The letter stated as follows:","\u201cThe child welfare services are concerned that you receive help to process what you have been through in relation to the taking into care, etc. It is still an offer that the Child Welfare Service cover the costs of a psychologist, if you so wish.\u201d","49.On 14 May 2009 the first applicant attended a contact session together with two acquaintances. According to the report, a situation arose in which the supervisor from the child welfare services stated that the first applicant would have a calmer time with X if she were alone with him. The first applicant said that the supervisor had to understand that she wanted to bring people with her because she was being badly treated. It was ultimately agreed that one of the acquaintances would accompany the first applicant. During the session the first applicant stated that she had received an unpleasant (ukoselig) letter from the child welfare services offering her an appointment to discuss any help that she might need (see paragraph 48 above). The first applicant stated that she did not want any help and that she certainly did not need psychological counselling.","50.On 19 August 2009 the City Court gave judgment on the question of the care order (see paragraph 47 above). At the outset the City Court stated that the case concerned judicial review of a care order issued pursuant to section 4-12 of the Child Welfare Act (see paragraph 122 below), which was to be considered pursuant to the rules in chapter 36 of the Dispute Act. When undertaking a judicial review of the County Social Welfare Board\u2019s decision, the court had power to review all aspects of the decision, both legal and factual, as well as the administrative discretion. It was well established in law that its review of the Board\u2019s decision should not be based on the circumstances at the time of the Board\u2019s decision, but on the circumstances at the time of its judgment. The court would not therefore normally go into more detail regarding the Board\u2019s assessment of the grounds for issuing a care order. However, the City Court went on to state that it nonetheless found that special reasons made it necessary to do so in the instant case.","51.Based on the evidence presented to it, the City Court ultimately concluded that it had not, either at the time of its judgment or previously, been sufficiently substantiated that there existed such deficiencies in the first applicant\u2019s ability to provide care that the conditions for the child welfare services maintaining care and control of X were met. It found, inter alia, that X\u2019s problems with weight gain could have been due to an eye infection. The Board\u2019s decision should therefore be revoked.","52.X was therefore to be returned to the first applicant and the City Court found that the parties understood that this had to be done in a way that would prevent X from facing further trauma. X had lived with his foster parents for ten months and had formed an attachment to them. Based on what had emerged during the proceedings, the City Court assumed that the child welfare services would give the first applicant and the foster parents the assistance they needed. The first applicant had said that she was willing to cooperate and, given that willingness, the City Court believed that it must be possible to establish the cooperative environment necessary for the child welfare services to be able to provide the help she might need.","53.In the days following the City Court\u2019s judgment there were a number of email exchanges between the first applicant\u2019s counsel and the child welfare services, and a meeting was held on 26 August 2009. The following day the first applicant, through her counsel, requested an appointment so that she could immediately (omg\u00e5ende) pick X up from the foster home and bring him home with her. She also requested that this be on Saturday 29August 2009. She stated that the foster mother could deliver X and stay as long as she wanted. The foster mother was also welcome to visit X when she wished, upon agreement with the first applicant. Representatives from the child welfare services were not welcome.","54.The applicant\u2019s request to have X immediately returned to her was not met by the child welfare services, but the amount of contact was increased. On 1, 3, 4 and 7 September 2009 contact sessions were held at the house of the first applicant\u2019s parents. The supervisor took detailed notes from each session as well as from conversations with the foster mother, and made a summary report of all the sessions. She noted, inter alia, that the foster mother had stated that the session on 1 September 2009 had \u201cgone well [(gikk greit)] in many ways\u201d, but that X had become very tired afterwards. He had been uneasy and difficult to put to bed. At the end of the session on 3 September, the supervisor noted that X appeared completely exhausted and pale. X\u2019s apparent tiredness was noted also in relation to the sessions on 4 and 7 September. Furthermore, it emerges from the notes that the supervisor found it strange (underlig) that X had not been offered food, even though the family had been informed that it was his meal time. The supervisor had noted that the first applicant had taken note of this information on the first day, but then forgotten it again by the next day. The report stated that the supervisor was uncertain as to whether this had to do with the first applicant\u2019s insecurity and fear of asking. The report also contained details about X\u2019s reactions to the sessions, with respect to crying, sleeping, digestion and other behaviour.","3.Proceedings before the High Court","55.On 4 September 2009 the municipality sought leave to appeal against the City Court\u2019s judgment (see paragraphs 50-52 above), requested that the Board\u2019s decision of 2 March 2009 be upheld (see paragraphs 38-46 above), and concurrently applied for implementation of the City Court\u2019s judgment to be suspended. The municipality argued, firstly, that the City Court\u2019s judgment was seriously flawed. They claimed that it was unlikely that the eye infection could have been the reason for X\u2019s slow weight gain. Moreover, the first applicant had had visits with X, but they had not worked well even though she had been given advice on how to improve them. X had had strong reactions after those visits. Secondly, the municipality submitted that the case raised a question of general interest, namely relating to the first applicant\u2019s intellectual functioning (kognitive ferdigheter). They stated that she had general learning difficulties and that tests had shown that she had specific difficulties, with consequences for her daily functioning. Her abilities in verbal reasoning, relating to complex information and analysing and acting in situations that arose, were matters relevant to the provision of adequate care for a child. In that context the municipality referred to a number of questions that, in their view, had to be answered, relating, inter alia, to what the first applicant was or was not capable of doing \u2013 and whether it was appropriate to leave a small child with her \u2013 and whether there were realistic assistance measures that could compensate for her shortcomings.","56.On 8 September 2009 the City Court decided to stay enforcement of its judgment until the High Court had adjudicated the case.","57.In her response of 11 September 2009 to the municipality\u2019s appeal, the first applicant, through her counsel, stated that the municipality had proceeded on the grounds that she was almost retarded (n\u00e6rmest er tilbakest\u00e5ende) and therefore incapable of taking care of a child, which she found to be an insulting allegation (grov beskyldning). Nor were there, in her view, any flaws in the City Court\u2019s judgment.","58.On 9 October 2009 the child welfare services decided to appoint two experts \u2013 a psychologist, B.S., and a family therapist, E.W.A. \u2013 to assess X in relation to his strong reactions after the period in which there had been frequent contact sessions at the home of the first applicant\u2019s parents (see paragraph 54 above). In addition to examining the reasons for X\u2019s reactions, the experts were asked to provide advice and guidance to the foster mother as to how to handle the reactions and to the first applicant, if she agreed, with respect to the contact sessions.","59.On 12 October 2009 the High Court granted leave to appeal on the ground that the ruling of, or procedure in, the City Court had been seriously flawed (see paragraph 55 above and paragraph 133 below). It also upheld the City Court\u2019s decision to stay enforcement of the judgment (see paragraph 56 above).","60.On 4 November 2009 the first applicant\u2019s counsel asked the child welfare services whether the offer of counselling to the first applicant (see paragraph 48 above) was still valid. In their response, of 12November2009, the child welfare services stated that they were worried about the first applicant and that it was important that she obtained help. They confirmed that they would cover the costs of a psychologist or other counsellor of the first applicant\u2019s choice and that they would not ask the person chosen for any information or to act as a witness in the child welfare case.","61.On 15 November 2009 the High Court appointed an expert psychologist, M.S., to assess the case.","62.On 20 February 2010 the two experts appointed by the child welfare services to examine the contact sessions and the effects on X (see paragraph58 above) delivered their report, which was over 18 pages long. In the report they stated that they had not observed any contact sessions, \u201cas this [had been] done by the expert appointed by the High Court\u201d. They further stated that the first applicant had refused guidance with respect to the contact sessions. In the chapter entitled \u201cIs it possible to hypothesise on parents\u2019 competence in contact situations based on their competence as caregivers?\u201d, the following was stated:","\u201cWhen reviewing the various documents we find that [the parent-child institution] describes a severe lack of the abilities that are required in the mothering role, which is similar to the pattern we see during the contact sessions more than one year later. For example, the mother demonstrates a lack of ability in basic parental care during the contact sessions, as we have described above. Furthermore, her parental regulation during the contact sessions is insensitive. She seems to have significant problems with identifying X\u2019s affects by sharing joy and making him feel secure and guiding him through confirmation and putting names on things. This is very serious.","We find that the mother has significant problems in all the contact sessions and that it is difficult not to say that these problems will also extend to her general competence as a caregiver. In a report dated 19 February 2008, i.e. two years ago, Dr Philos. [H.B.], a specialist in clinical neurology, states the following:","\u2018There are no significant changes in the results of intelligence tests conducted before the operation and at the check-up two years after the operation. Her results in the intelligence tests have been very similar since she was 10.5 years old, i.e. her intelligence has been stable throughout all these years.\u2019","He says that her intellectual functioning is approximately two standard deviations below her peers and that she has problems with her long-term memory and with transferring information from one thing to another.","We find that it is more problematic than usual for the mother to have supervised contact sessions because of her cognitive issues, because from time to time [(fra gang til gang)] she does not know what to do in relation to the boy and because she is very driven by impulses. [H.B.]\u2019s report also states that she has problems understanding the content of what she is reading, and we also find that she cannot read and understand the situation when she is with her child. We find this to be an important and fundamental issue in shedding light on the mother\u2019s competence in contact situations and her competence as a caregiver. As regards the mother\u2019s competence as a caregiver in relation to the mother\u2019s cognitive skills, we assume that this will be further elucidated by [M.S.], the expert psychologist appointed by the Court of Appeal. This is considered to play a role in relation to the mother\u2019s behaviour vis-\u00e0-vis X during the contact sessions and her struggle to become emotionally attuned to his needs at different ages.","On page 5 of its report [(judgment)] from 2009, the City Court summarises [the situation] as follows:","\u2018It is generally known that many women, especially women who are giving birth for the first time, can have a psychological reaction after the birth which, in extreme situations, can take the form of serious postnatal depression. All reactions in the form of feelings of alienation and insecurity in relation to the newborn are within the normal range.\u2019","We find that the mother\u2019s difficulties during the contact sessions cannot be regarded as serious postnatal depression since the mother\u2019s difficulties during the contact sessions have shown a similar pattern for more than 1.5 years. This is more a sign of inadequate basic parenting skills and is not related to postnatal depression alone. We consider it crucial [(avgj\u00f8rende viktig)] that the mother\u2019s difficulties during the contact sessions and her competence as a caregiver in general be understood in the light of more complex psychological explanatory models relating to both cognitive issues and serious traumatic experiences both early in life and as an adult, which we know, based on research, affect a person\u2019s ability to function as a parent without considerable individual efforts and treatment. We assume that the expert psychologist will describe this in more detail.\u201d","63.On 3 March 2010 the expert psychologist appointed by the High Court, M.S. (see paragraph 61 above), delivered her report. She had observed two contact sessions, one attended by the first applicant alone and the other attended by the first applicant together with her mother and sister. The chapter entitled \u201cSocial and academic functioning\u201d contained, inter alia, the following:","\u201cThroughout the years SSE [(Statens senter for epilepsi)] has carried out repeated assessments of [the first applicant] using tests that measure the course of her illness and tests that focus more on describing her functioning. In this case, there has been a particular focus on the WISC-R test, which has been conducted both pre- and postoperatively. The results from this test are expressed as an IQ score which has been a topic of discussion in the child welfare case of which the present report is also a part. It is therefore relevant to make some comments on these test scores.","The WISC-R is a very well-known and frequently used test to measure intellectual abilities in children. Such abilities are associated with school performance. The test result provides useful information about a child\u2019s ability to learn and make use of learning. A functioning profile from a WISC-R test therefore forms the basis for targeted special education measures in school and can help when preparing individually adapted educational arrangements for children with special needs.","The end-product of an intelligence test is an IQ score, which is an operational definition of intelligence that provides a numeric expression of how abilities defined as intelligence are distributed among individuals in a population. The test is standardised, i.e. there is a statistical normal distribution with an average deviation on both sides. The WISC-R has a defined average of 100 with a standard deviation of +-15. A score within the range of distribution 85-115 is said to be within the normal range, where 68% of the population of comparison are situated, whereas 98% are within two standard deviations, i.e. 70-130 points. When conducting a diagnostic assessment of an IQ score, persons with IQ scores between 50 and 69 are defined as slightly mentally retarded. Intelligence test performance can be improved in the course of a person\u2019s developmental history if the fundamental cognitive resources are there. In this case, there is information that [the first applicant]\u2019s IQ score has been stable throughout her childhood and adolescence, which means that she has not caught up intellectually after her brain surgery.","1.3.Summary","Anamnestic information from the school, the specialist health service and the family provides an overall picture of weak learning capacity and social functioning from early childhood into adulthood. [The first applicant] performed poorly at school despite good framework conditions, considerable extra resources and good efforts and motivation on her own part. It is therefore difficult to see any other explanation for her performance than general learning difficulties caused by a fundamental cognitive impairment. This is underlined by her consistently low IQ score \u2013 regardless of the epilepsy surgery.","She also had problems with socio-emotional functioning, which has also been a recurring topic in all the documents that deal with [the first applicant\u2019s] childhood and adolescence. A lack of social skills and social adaptation is reported, primarily related to social behaviour that is not commensurate with her age [(ikke-aldersadekvat sosial fremtreden)] (\u2018childish\u2019) and poor impulse control. It is also stated that [the first applicant] has been very reserved and had low self-confidence, which must be seen in conjunction with her problems.\u201d","In the chapter entitled \u201cAssessment of care functioning, competence in contact situations and the effect of assistance measures\u201d, the report contained the following:","\u201c5.1.Competence as a caregiver","As is clear from the above, I have placed particular emphasis on the consequences of [the first applicant\u2019s] condition in relation to her general functioning and whether she has what it takes to care for a child. It is important to note that neither [the first applicant] herself nor her parents believe that there is a connection between her history of illness, her adult functioning and her ability to provide care.","It is not the case that epilepsy deprives people of their ability to provide care, just as a low IQ score in itself is not a reason to take a child into care. However, a test result can help to elucidate why someone\u2019s functioning capacity is impaired, particularly if this is seen in conjunction with other observations and descriptions.","[The first applicant] has had serious refractory epilepsy since she was an infant. This is an unstable form of epilepsy that changes the brain and affects the entire personality development. There is also the matter of the side effects of the strong medication she took throughout her childhood. Dr [R.B.L.] at SSE, who knows [the first applicant]\u2019s history very well, talks about \u2018the burden of epilepsy\u2019, i.e. the socio-emotional problems that can be generated through a reduced ability to learn and social maladjustment. It is therefore completely reasonable to assume that the burden of the disease in itself has set her back somewhat. Objective measurements of her functioning made at different times during her upbringing confirm this. Seen in conjunction with clinical observations, an impression is formed of [the first applicant] as a young woman with significant cognitive impairment. In my opinion, this is what the public health services identified when [the first applicant] reported her pregnancy and that gave cause for concern. Terms such as \u2018immature\u2019 and \u2018childish\u2019 frequently occur in descriptions of her behaviour throughout her upbringing and are still used now that she is 24 years old. [The first applicant]\u2019s appearance and behaviour largely qualify her for the use of such adjectives: she is small, delicate and looks much younger than her chronological age. She lives at home with her parents where her room has Moomins wallpaper and is filled with objects you would expect to see in a teenager\u2019s room.","I am concerned about [the first applicant]\u2019s self-care. She seems young, insecure and partly helpless. Her relationship with men seems unclear. She had a romantic relationship with a man whom she also lived with for a short time, but the relationship was characterised by turbulence with episodes of sexual violence. She became pregnant with X while she was still together with her boyfriend, without [the first applicant] having been able to explain how it came about that her boyfriend is not the child\u2019s father. She has seemed confused about this and has told different stories. She has also contracted a sexually transmitted disease (chlamydia) without knowing the source of the infection. [The first applicant] has wanted a child, but has left things up to chance without considering the consequences of having sole responsibility for the child and what this requires. On 7 November 2007 she told the doctor at SSE that she was not using birth control and thought that she might be pregnant at that time. Later that same day she said that she wanted to become pregnant. An abortion was carried out on the basis of social indications at [R. hospital] in November 2007 of a foetus in the 18th week of the pregnancy. [The first applicant] took a photograph of the foetus, which may seem like a bizarre action. She also received a hand and footprint of the foetus. [R. hospital] described [the first applicant] as immature with a limited network.","The circumstances surrounding both pregnancies say something about [the first applicant]\u2019s awareness of her own choices and their consequences. This is important in the assessment of her ability to care for a child.","Furthermore, [the first applicant] has not completed an education and has not been in permanent employment. She has for the most part lived at home in her old room and has little experience of living as an independent adult with responsibility for creating structure in her life, ensuring an income and deciding on financial priorities. Her relationship with her parents is described as good at the moment, but there have been conflicts in the past. I perceive their relationship to be vulnerable. [The first applicant] herself expresses a great deal of ambivalence towards her mother, because, on the one hand, she thinks that her mother interferes too much with her life, while, on the other hand, she is very dependent on her, takes her opinions as her own and trusts her to be her guide. At the same time she is annoyed that her mother defines many things for her and wishes that her mother \u2018would get it into her thick head\u2019 that she needs a bit more privacy than at present. According to her mother, [the first applicant] just sat in her room after her son was taken into care. Her mother is very worried and says that she \u2018can hardly stand\u2019 seeing her daughter like that.","In my opinion, [the first applicant] has problems with emotional regulation, which makes interaction with other people difficult for her. Since the child was taken into care, [the first applicant] has been offended, hurt and angry. These emotions are fully understandable when you feel that you have been treated unfairly, but in this case they are expressed without censorship to such an extent that it seems conspicuous. Describing the County Social Welfare Board as \u2018a bunch of rotten women who are bought off by the child welfare services\u2019 and the staff at [the parent-child institution] as \u2018those psychotic people\u2019 does not help to create an impression of an adult person who is capable of socialising with other adults in a socially appropriate manner. [The first applicant]\u2019s intense outbursts of crying, both at home with her parents when we are discussing the case and during contact sessions, is also unusual behaviour for an adult. Nor is sobbing into the lap of one\u2019s father or mother (as described in connection with the contact sessions) a sign that one is able to control one\u2019s emotions in a manner that is commensurate with one\u2019s age. Nor has [the first applicant] handled her son\u2019s behaviour very maturely, but has rather felt personally rejected and acted accordingly.","It is difficult to stick to the matter at hand with [the first applicant]. Her cognitive style is characterised by an inability to see connections, or to generalise. She demonstrates egocentric thinking when she keeps bringing up the evil child welfare services and when referring to how her parents and everyone else find it incomprehensible that the child was taken into care. I refer to the statement by the psychologist from [the parent-child institution] that \u2018the mother makes statements that are difficult to attach any meaning to.\u2019 The view that I have formed of [the first applicant] during our conversations is that she has a fragmented view of situations, meaning that different episodes are understood as individual episodes that have no connection. Accordingly, guidance is perceived as criticism, good advice as scolding etc. This inability to generalise is characteristic of [the first applicant]\u2019s thinking. She also lacks the capability of abstract thinking and formal thought operations. It is difficult for her to think forwards and backwards in time. Hence, it is not easy to get an answer as to what ideas she has regarding a possible return of the child. She makes some general statements, for example that she must ask what he likes to eat and whether he watches children\u2019s TV, whereas she does not offer any reflections on what special measures should be taken relating to the child\u2019s emotional stress if he were to be moved. When I ask what the foster mother should do to help during the process of returning the child, [the first applicant] has no constructive suggestions. What she wants, however, is \u2018that she (the foster mother) should feel as shitty as I have for the past year\u2019. Such a statement, combined with the manifest hostility (uttalt fiendtlighet) during the contact sessions, does not bode well for co-operation with either the foster home or the child welfare services should the boy be returned.","[The first applicant] has used a lot of energy on her aggression and developing hostile opinions. This has contributed to cementing the stereotypes about the child welfare services and all other helpers as adversaries. [The first applicant]\u2019s thinking is characterised by an \u2018if you\u2019re not with me, you\u2019re against me\u2019 attitude, and she is unable to see nuances. Such black-and-white thinking is characteristic of individuals with limited cognitive capacity. Furthermore, I perceive [the first applicant] as being depressed. I consider her intense aggression as a strategy for holding it together psychologically.","There is no reason to doubt [the first applicant]\u2019s intense wish to become a good mother. She contacted the support services herself for this purpose. What ideas and expectations she had in that regard remain unclear, however. Her mother has indicated that they thought [the parent child-institution] was a sort of hotel where you could get practical help with child care. Despite all the preparatory work and thorough information provided beforehand, they did not understand that an assessment stay requires the parent to show their qualities, be observed and be placed in a learning situation. Consequently, [the first applicant] feels very betrayed and deceived \u2013 which is expressed as abusive language and threats.","The stay at [the parent-child institution] illustrates that [the first applicant] had problems handling and retaining information in such a manner that it could be used to guide her behaviour. It is not a question of a lack of willingness but of an inadequate ability to plan, organise and structure. Such manifestations of cognitive impairment will be invasive in relation to caring for the child and could result in neglect.","5.2.The effect of assistance measures","Weight is attributed to the fact that [the first applicant] is now living with her parents and can continue to do so for as long as is necessary. This is an assistance measure of sorts. This may become more problematic than it would seem, however: [the first applicant] is 24 years old and wishes to become autonomous, a desire which may conflict with her mother\u2019s desire to help. Neither her parents nor anyone else will be able to dictate how [the first applicant] should organise her life and her child\u2019s life. If [the first applicant] wants to move out, she can do this whenever she wishes. Her parents are not concerned about this. A decision must therefore be based on the fact that \u2013 should the child be returned \u2013 one cannot with a sufficient degree of certainty know where the child\u2019s care base will be in future. It must therefore primarily be based on [the first applicant]\u2019s ability to provide care, not her network\u2019s ability to provide care.","The stay at the family centre was a strong assistance measure which had no effect. The child welfare services\u2019 follow-up of contact sessions has had a negative impact on the cooperation between the [applicant\u2019s] family and the child welfare services. Both the family and [the first applicant] have stated that they do not want follow-up or assistance in connection with returning the child.","5.3.Conclusions","In my assessment, there are grounds for claiming that there were serious deficiencies in the care the child received from the mother, and also serious deficiencies in terms of the personal contact and security he needed according to his age and development. [The first applicant]\u2019s cognitive impairment, personality functioning and inadequate capacity for mentalisation make it impossible to have a normal conversation with her about the physical and psychological needs of small children. Her assessments of the consequences of having the child returned to her care and what it will demand of her as a parent are very limited and infantile, with her own immediate needs, there and then, as the most predominant feature. It is therefore found that there is a risk of such deficiencies (as mentioned above) continuing if the child were to live with his mother.","It is also found that satisfactory conditions for the child cannot be created with the mother by means of assistance measures pursuant to section 4-4 of the Child Welfare Act (e.g. relief measures in the home or other parental support measures) due to a lack of trust and a reluctance to accept interference from the authorities \u2013 taking the case history into consideration.\u201d","64.The High Court held a hearing from 23 to 25 March 2010. The first applicant attended with her legal-aid counsel. Eleven witnesses were heard and the court-appointed expert, psychologist M.S. (see paragraph 61 above), made a statement. The municipal child welfare services submitted, principally, that there should be no contact between the applicants. In the alternative, contact should take place only twice a year. The child welfare services maintained that it was a matter of a \u201clong-term placement\u201d (langvarig plassering av barnet).","65.In a judgment of 22 April 2010 the High Court upheld the Board\u2019s decision that X should be taken into compulsory care (see paragraphs 38-46 above). It also reduced the first applicant\u2019s contact rights to four two-hour visits per year.","66.The High Court had regard to the information in the report produced by the parent-child institution on 23 October 2008 (see paragraph 24 above). It also took account of the family consultant\u2019s testimony before the court, in which it had been stated that the first applicant\u2019s mother had lived with her at the institution for the first four nights (see, also, paragraph 17 above). It went on to state:","\u201cIt was particularly after this time that concerns grew about the practical care of the child. The agreement was that [the first applicant] was to report all nappy changes etc. and meals, but she did not. The child slept more than they were used to. [The family consultant] reacted to the child\u2019s breathing and that he was sleeping through meals. Due to weight loss, he was to be fed every three hours around the clock. Sometimes, the staff had to pressure the mother into feeding her son.\u201d","67.The High Court found that the parent-child institution had made a correct assessment and \u2013 contrary to the City Court (see paragraph 51 above) \u2013 considered it very unlikely that the assessment would have been different if X had not had an eye infection.","68.Furthermore, theHighCourt referred to the report of 5December2008 from the child psychiatry clinic (see paragraph 32 above). It also took into account the report of the court-appointed expert, M.S. (see paragraph 63 above).","69.As the stay at the parent-child institution had been short, the High Court found it appropriate to consider the first applicant\u2019s behaviour (fungering) during the contact sessions that had been organised subsequent to X\u2019s placement in foster care. Two people had been entrusted with the task of supervising the sessions, and both had written reports, neither of which had been positive. The High Court stated that one of the supervisors had given an \u201coverall negative description of the contact sessions\u201d.","70.The High Court also referred to the report of the psychologist and the family therapist appointed by the child welfare services, who had assessed X in relation to the reactions that he had shown after visits from the first applicant (see paragraphs 58 and 62 above).","71.Furthermore, the High Court noted that the court-appointed psychologist, M.S. (see paragraphs 61 and 63 above), had stated in court that the contact sessions had appeared to be so negative that she was of the opinion that the mother should not have a right of contact with her son. The contact sessions were, in her view, \u201cnot constructive for the child\u201d. In conclusion to the question of the first applicant\u2019s competence as a carer, she stated in her report (see paragraph 63 above) that the stay at the parent-child institution had illustrated that the first applicant \u201chad problems handling and retaining information in such a manner that it could be used to guide her behaviour\u201d. She went on to state:","\u201cIt is not a question of a lack of willingness, but of an inadequate ability to plan, organise and structure. Such manifestations of cognitive impairment will be invasive in relation to caring for the child and could result in neglect\u201d (ibid.).","72.The High Court agreed with the expert M.S.\u2019s conclusion before proceeding to the question whether assistance measures could sufficiently remedy the shortcomings in the first applicant\u2019s parenting skills. In that respect, it noted that the reasons for the deficiencies in competence as a carer were crucial. The High Court referred at this point to the expert\u2019s description of the first applicant\u2019s medical history, namely how she had suffered from serious epilepsy since childhood and until brain surgery had been carried out in 2005, when the first applicant had been 19 years old.","73.The High Court noted that M.S. had also pointed out that the first applicant\u2019s medical history must necessarily have affected her childhood in several ways. It based its assessment on the description by M.S. of the first applicant\u2019s health problems and the impact they had had on her social skills and development. It further noted that placement at a parent-child institution had been attempted as an assistance measure (see paragraph 17 above). The stay had been supposed to last for three months, but had been interrupted after just under three weeks. As a condition for staying longer, the first applicant had demanded a guarantee that she be allowed to take her son home with her after the stay. The child welfare services had been unable to give such a guarantee, and the first applicant had therefore returned home on 17 October 2008.","74.The High Court noted that relevant assistance measures were assumed to consist of a supervisor and further help and training in how to care for children. However, the High Court found that it would take so long to provide the first applicant with sufficient training that it was not a real alternative to continued foster-home placement. Furthermore, the result of such training was uncertain. In that connection the High Court attached weight to the fact that both the first applicant and her immediate family had said that they did not want follow-up or assistance if X were returned to them. It agreed with the conclusions of the court-appointed expert, M.S. (see paragraph 63 above).","75.The High Court\u2019s conclusion in its judgment of 22 April 2010 was that a care order was necessary and that assistance measures for the mother would not be sufficient to allow her son to stay with her. The conditions for issuing a care order under the second paragraph of section 4-12 of the Child Welfare Act were thus met (see paragraph 122 below). In that connection the High Court also gave weight to the attachment that X had formed to his foster parents, particularly the foster mother. As to contact rights, the High Court stated that exceptional and strong reasons were required to deprive a parent of the right of contact after a child had been taken into care, since contact was normally considered to be in the child\u2019s best interests, particularly in a long-term assessment. In the instant case, despite the negative information about the contact sessions and the expert psychologist M.S.\u2019s recommendation that the first applicant should not be given any contact rights, the High Court found that exceptional and strong reasons for denying contact did not exist, but that contact sessions should not take place at too short intervals. It went on to state:","\u201cAs regards the frequency of the contact sessions, the High Court is split into a majority and a minority.","The majority ... have found that an appropriate amount of contact would be two hours four times a year.","The majority find reason to emphasise that only the mother has a right of contact. The fact that she has rarely met with [X] alone has had some unfortunate consequences. The tense atmosphere between the adults present has intensified. The stress for the child must be assumed to increase when more people are present. Fewer participants will lead to a calmer atmosphere. This is also in line with the psychologist [M.S.]\u2019s observations. The atmosphere between the adults may also become less tense when the case has been legally resolved and some time has passed. The fact that the contact sessions will become less frequent than under the previous arrangement will also reduce the stress for the child. It must be assumed that the child\u2019s subsequent reactions will then decrease. However, the most important factor will be whether the mother and, if relevant, any other family members manage to cooperate better and preferably convey a positive attitude towards the foster mother, in particular during the contact sessions.","The majority\u2019s conclusion that the contact sessions cannot be more frequent than four times a year is related to what is discussed above. In addition, the placement will most likely be a long-term arrangement. The contact sessions may thus serve as a way of maintaining contact between the mother and son so that he is familiar with his roots. This is believed to be important to the development of identity. The purpose of the contact sessions is not to establish a relationship with a view to a future return of the child to the care of his biological mother.","The child welfare services must be authorised to supervise the exercise of the right of contact. This is necessary for several reasons, including to limit the number of participants during the sessions.\u201d","The minority of the High Court \u2013 one of the professional judges \u2013 was of the opinion that the contact rights should be fixed at twice a year.","76.The first applicant did not lodge an appeal against the judgment, which thus became legally binding.","D.The first applicant\u2019s complaint to the County Governor","77.In an undated letter the first applicant complained about the child welfare services to the County Governor (fylkesmannen). She alleged that the child welfare services had lied and said that she was retarded; the psychologist appointed by the High Court (see paragraph 61 above) had been partial and should never have been allowed to come into her home; in contact sessions, the first applicant was bullied and harassed by the supervisor and the foster mother if she came alone, and she was not allowed to bring her own parents any more. She stated that one could only wonder how retarded they were, or how low an IQ they had. The whole case, she maintained, had been based on lies. She also alleged that the child welfare services removed a person\u2019s capacities (umyndiggj\u00f8r) and gladly made people retarded (gj\u00f8r gjerne folk evneveike) in order to procure children for themselves or their friends.","78.The director (barnevernleder) of the municipal child welfare services replied on 22 July 2010 saying that the first applicant and her family were more interested in conflict with the child welfare services than in establishing good and positive contact with X. The first applicant had complained early on about the staff from the child welfare services, who, in return, had met her wish to be assigned a new supervisor, but nothing had changed in the first applicant\u2019s attitude. The amount of contact had been increased to three times a week in accordance with the City Court\u2019s judgment (see paragraph 54 above), and X had had strong reactions to this. The director of the child welfare services further stated that they understood that the situation was difficult for the first applicant and had offered her help (see, inter alia, paragraph 48 above). With respect to the contact sessions, they had tried several alternatives. They had at first carried out the sessions in a meeting room at their offices, where the supervisor and foster mother could sit at a table some distance away from the first applicant and X, though in a manner that enabled them to intervene if supervision were necessary. The first applicant had complained about this solution. There had then been some sessions in the foster home, but the foster mother had found this difficult because the atmosphere was very bad and they wanted the foster home to be a secure environment for X. Thereafter they had borrowed an apartment designated for purposes such as contact sessions. This had also not suited the first applicant, who had again complained. They had then gone back to having visits at the child welfare services\u2019 offices, where a new room for such purposes had since been made available.","79.The director of the child welfare services also stated that the foster mother was still present during contact sessions. This had been considered as entirely necessary, as she was the secure carer for X. It had also been considered necessary to have a supervisor present to guide the first applicant. The supervisor\u2019s task was also to stop the contact sessions if the first applicant refused guidance. So far, sessions had not been stopped, but the supervisor had tried to tell the first applicant that it was important to focus on X and enjoy being with him, instead of yelling at the child welfare services and the foster mother.","80.In a letter to the first applicant, dated 26 July 2010, the County Governor, following the child welfare services\u2019 response to their inquiry, informed her that they had no objections to the work of the child welfare services in the case.","E.Proceedings to lift the care order or withdraw the first applicant\u2019s parental responsibilities for X and authorise his adoption","1.Proceedings before the County Social Welfare Board","(a)Introduction","81.On 29 April 2011 the first applicant applied to the child welfare services for termination of the care order or, in the alternative, extended contact rights with X.","82.On 13 July 2011 the municipal child welfare services forwarded the request to the County Social Welfare Board. The municipality proposed that it be rejected; that the first applicant\u2019s parental responsibilities for X be withdrawn (transferred to the authorities), and that X\u2019s foster parents, with whom he had resided since he was taken into care (see paragraph 22 above), be granted permission to adopt him. The identity of X\u2019s biological father was still unknown to the authorities. In the alternative, the municipality proposed that the first applicant\u2019s contact rights be removed.","83.During a contact session on 6 September 2011 the supervisor noticed that the first applicant was pregnant and asked when the baby was due, to which the first applicant, according to the supervision notes, answered that she thought it was around New Year\u2019s Eve. According to the notes, the contact session went well.","84.On 13 September 2011 the first applicant\u2019s counsel engaged a specialist in clinical neurology to test her abilities and to map her cognitive capacities.","85.In letters of 14 September and 28 October 2011, in the course of the proceedings before the Board, the municipality asked for further information about the first applicant\u2019s husband, in order to be able to make contact with him and talk to him about his future role in the first applicant\u2019s life.","86.Meanwhile, on 18 October 2011, the first applicant gave birth to Y. She had married the father of Y in the summer of that year. The new family had moved to a different municipality. When the child welfare services in the first applicant\u2019s former municipality became aware that she had given birth to another child, they sent a letter expressing concern to the new municipality, which started an investigation into her parenting abilities.","87.Also on 18 October 2011, the specialist in clinical neurology engaged by the first applicant\u2019s counsel (see paragraph 84 above) produced his report. His conclusion read as follows:","\u201cWechsler Adult Intelligence Scale III (WAIS-III) shows an IQ of 86. Standard errors in measurements indicate that, with a 95% probability, she has an IQ of between 82 and 90. The normal range is between 85 and 115. Ability-wise, [the applicant] is within the lower part of the normal range. In addition she shows considerable learning difficulties that are ... [greater] than what her IQ should indicate [(betydelige l\u00e6revansker som er svakere enn hva hennes IQ skulle tilsi)]. These difficulties are considered to be consistent with a cognitive impairment.\u201d","In response to a request for follow-up, he wrote to the first applicant\u2019s counsel on 27 October 2011 stating as follows:","\u201cA general IQ of between 82 and 90 is not in itself a disqualifying factor with respect to having care for children. Care abilities should to a greater extent be examined through observation of the care person and the child, and anamnestic information about other circumstances. Not being an expert in this field, I think that an assessment of crucial factors would include, among other things, the care person\u2019s ability for empathy and meeting the child, understanding of the child\u2019s needs, ability to interpret signals from the child, and ability to set aside [(utsette)] their own wishes for the benefit of the child\u2019s needs.","Such an assessment should be made by a qualified psychologist with experience in the field.\u201d","88.On 8 November 2011 the first applicant\u2019s counsel sent a copy of a medical journal dated 2 November 2011 to the Board. It appeared from the copy that a doctor had agreed to give evidence by telephone during the upcoming case and that the doctor could not see that there was anything connected with the first applicant\u2019s epilepsy or cognition that would indicate that she was not capable of taking care of her child.","89.On 28, 29 and 30 November 2011 the County Social Welfare Board, composed of a lawyer, a psychologist and a lay person, held a hearing at which the first applicant was present together with her legal representative. Twenty-one witnesses were heard.","(b)The Board\u2019s decision","90.On 8 December 2011 the Board decided that the first applicant\u2019s parental responsibilities for X should be withdrawn and that X\u2019s foster parents should be allowed to adopt him. The Board found that there was nothing in the case to indicate that the first applicant\u2019s parenting abilities had improved since the High Court\u2019s judgment of 22 April 2010 (see paragraphs 65-75 above). Therefore she was still considered incapable of giving X adequate care. Moreover, the Board stated:","\u201cIn her statement before the County Social Welfare Board, the mother maintained her view that the care order was a conspiracy between the child welfare services, [the parent-child institution] and the foster parents for the purpose of \u2018helping a woman who is unable to have children\u2019. In the mother\u2019s words, it was a question of \u2018an advance order for a child\u2019. The mother had not realised that she had neglected [X], and stated that she spent most of her time and energy on \u2018the case\u2019.","The reports from the contact sessions between the mother and [X] consistently [(gjennomg\u00e5ende)] show that she is still unable to focus on [X] and what is best for him, but is influenced by her very negative view of the foster mother and of the child welfare services.","[The first applicant] has married and had another child this autumn. The psychologist [K.M.] has stated before the Board that he observed good interaction between the mother and child and that the mother takes good care of the child. The Board takes note of this information. In the County Social Welfare Board\u2019s opinion, this observation cannot in any case be used as a basis for concluding that the mother has competence as a caregiver for [X].","The County Social Welfare Board finds it reasonable to assume that [X] is a particularly vulnerable child. He experienced serious and life-threatening neglect during the first three weeks of his life. Reference is also made to the fact that there have been many contact sessions with the mother, some of which have been very stressful for [X]. All in all, he has been through a lot. He has lived in the foster home for three years and does not know his biological mother. If [X] were to be returned to the care of his mother, this would require, among other things, a great capacity to empathise with and understand [X] and the problems he would experience, not least in the form of mourning and missing his foster parents. The mother and her family appeared to be completely devoid of any such empathy and understanding. Both the mother and grandmother stated that it would not be a problem, \u2018he just had to be distracted\u2019, and thus gave the impression of not having sympathy with the boy and therefore also being incapable of providing the psychological care he would need in the event of a return.\u201d","91.In addition, the Board had especially noted the conclusions of the expert M.S. (see paragraph 63 above). They had been quoted by the High Court in its judgment of 22 April 2010 (see paragraphs 65-75 above). The Board found that this description of the first applicant was still accurate. In any event, it was decisive that X had established such a connection to his foster family that removing him would result in serious and permanent problems for him.","92.The Board further stated:","\u201c[X] has lived in the foster home as an equal member of the family for three years. These three years are the boy\u2019s whole life. We find it to be substantiated that his primary source of security and sense of belonging is his foster family. He sees the foster parents as his psychological parents. In addition to his foster family, [X] receives good follow-up in kindergarten and from the rest of the foster parents\u2019 family. We have no doubt that removing [X] from this environment and returning him to his biological mother would lead to considerable and serious problems. Reference is made to the fact that he had already developed considerable problems after one year, when the amount of contact was increased significantly. In our assessment, it is of crucial importance to the boy\u2019s development and welfare that he continue to live in the foster home.","On this basis the County Social Welfare Board must determine the question of withdrawal of parental responsibilities and, if relevant, consent to adoption.","The first and second paragraphs of section 4-20 of the Child Welfare Act state that a decision to withdraw parental responsibilities from the parents can be made, and is a precondition for granting consent to adoption. The condition is that the County Social Welfare Board has made a care order for the child.","The Board bases its decision on established case-law allowing for parental responsibilities to be withdrawn from biological parents in order to make an adoption possible. This is the primary objective of the child welfare services\u2019 proposal to withdraw the mother\u2019s parental responsibilities in the present case.","The wording of section 4-20 of the Child Welfare Act specifies far stricter conditions for granting consent to adoption than for withdrawing the parents\u2019 parental responsibilities. However, when the purpose of a decision pursuant to the first paragraph is to open up the possibility for adoption, the grounds that indicate adoption will also constitute the grounds for withdrawal of parental responsibilities.","The matter to be determined in this case is thus whether the conditions for granting consent to adoption are met. The third paragraph of section 4-20 of the Child Welfare Act reads as follows:","\u2018Consent may be given if","(a)it must be regarded as probable that the parents will be permanently unable to provide the child with proper care or the child has become so attached to persons and the environment in which he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her, and","(b)adoption would be in the child\u2019s best interests, and","(c)the persons applying for adoption have been the child\u2019s foster parents and have shown themselves to be fit to bring up the child as their own, and","(d)the conditions for granting an adoption under the Adoption Act are satisfied.\u2019","The County Social Welfare Board will start by observing that there are good grounds for withdrawing the mother\u2019s parental responsibilities for [X], regardless of the issue of adoption. Reference is made to the fact that [X] has lived in the foster home for practically his whole life, and it is therefore most natural that the foster parents make the decisions on his behalf that come with parental responsibilities. The mother\u2019s insensitive behaviour, not least online, also indicates that she could cause many problems for him [(ramme ham hardt)] when he becomes old enough to understand.","The County Social Welfare Board considers [(legger til grunn)] that the mother will be permanently unable to provide [X] with proper care, and that [X] has become so attached to his foster parents, foster brother and the rest of the family that moving him would lead to serious problems for him. Reference is made to the above discussion. The condition in letter (a) of [the third paragraph of] section 4-20 of the Child Welfare Act is met.","Adoption is a particularly invasive measure in relation to the biological parents and the child. Therefore, particularly weighty reasons are required. Pursuant to Supreme Court case-law, the decision must be based on a concrete assessment, but must also build on general experience from child psychology or child psychiatry. Reference is made in particular to the Supreme Court decision in Rt. 2007 page 561 ff., which refers to a court-appointed expert who had stated that general experience indicated that a foster-home relationship was not the preferable option for long-term placement of children who had come to the foster home before establishing an attachment to their biological parents. In such cases, adoption would be most conducive to the child\u2019s development. The judgment stated that considerable importance must be attached to such general, but nuanced experience.","The County Social Welfare Board bases its decision [(legger til grunn)] on the mother not consenting to [X] being adopted. As shown above, she has a strong, if inappropriate [(uhensiktsmessig)], commitment to having him returned to her care.","In the County Social Welfare Board\u2019s assessment, consent to an adoption will clearly be in [X]\u2019s best interests. The County Social Welfare Board does not believe that returning [X] to his mother\u2019s care is an option. This foster-home placement is considered permanent. [X] sees his foster parents as his psychological parents, and they are the only parents he knows. An adoption would give [X] further assurance that he is his foster parents\u2019 son.\u201d","93.The Board went on to make another reference to the Supreme Court\u2019s (H\u00f8yesteretts) decision in Norsk Retstidende (Rt.) 2007, page 561 (see, also, paragraph 125 below) and found that the reasoning underlying the following passage from that judgment \u2013 reiterated in Aune v. Norway (no. 52502\/07, \u00a7 37, 28 October 2010) \u2013 was also pertinent in the present case:","\u201cA decision that he should remain a foster child would tell him that the people with whom he has always lived and who are his parents and with whom he established his earliest ties and sense of belonging should remain under the control of the child welfare services \u2013 the public authorities \u2013 and that they are not viewed by society as his true parents but rather as foster parents under an agreement that can be terminated. ...\u201d","The Board considered these general reflections to be an accurate description of X\u2019s situation as well. An adoption would be in X\u2019s best interests. The condition in letter (b) of the third paragraph of section 4-20 of the Child Welfare Act (see paragraph 122 below) was deemed to be met.","94.Furthermore, the foster parents had been X\u2019s emergency foster parents and later his foster parents since his emergency placement when he was three weeks old. The Board stated that it had been documented that they had provided X with excellent care and that the attachment between them and X was good and close. The foster parents had a strong wish to adopt X. In the Board\u2019s opinion, the foster parents had demonstrated that they were suited to raise X as their own child. The conditions set out in letter (c) of the third paragraph of section 4-20 of the Child Welfare Act Section 4-20 (see paragraph 122 below) were deemed to be met.","95.In conclusion, the adoption would be in X\u2019s best interests. The Board took Article 8 of the Convention into consideration when making its decision.","2.Proceedings before the City Court","(a)Introduction","96.On 19 December 2011 the first applicant appealed against the decision, claiming that the Board had made an incorrect evaluation of the evidence when deciding that she was unable to give X adequate care. She considered that it would be in X\u2019s best interests to be returned to her and argued that her situation and her caring skills had changed. She was now married and the couple had a baby. She submitted that the child welfare services in their new municipality assisted them in taking care of the baby. Moreover, in her view, removing X from the foster home would cause him problems only in the short term; no long-term problems could be expected. X had only stayed in the foster home for a short time, and it had not been the foster parents who had expressed a wish to adopt the child but the child welfare services who had taken that initiative. The first applicant also claimed that the visits between her and X had worked satisfactorily; if the child welfare services considered the contact sessions to be inadequate it was for them, as the stronger party, to take action to ensure that they be made satisfactory.","97.The municipality opposed the appeal and submitted in their response that X, who was then three years and four months old and had lived in the foster home since he was three weeks old, had become attached to the foster home. They maintained that it would cause serious and long-lasting problems for him if he were returned at the present time. He had no recollection of the period when he had been in his mother\u2019s care. In the municipality\u2019s view, the first applicant\u2019s ability to care for X had not changed since the High Court\u2019s judgment of 22 April 2010. The visits between X and the first applicant had not worked well. She had had outbursts during the visits and had left before the time was up. Afterwards X had reacted negatively. The first applicant and her mother had manifested a very negative attitude towards the child welfare services. The first applicant had claimed that the child welfare services assisted them in taking care of the baby, whereas the truth was that they had denied the child welfare services access to their home and, accordingly, no assistance measures had been implemented. It had, admittedly, been the child welfare services that had taken the initiative to petition for adoption, but this was their duty in a case such as the present. It was better for X to be offered the firm attachment to the foster home that an adoption would give him. The municipality stressed that it was not the first applicant\u2019s epilepsy or her IQ that gave reason to take measures, but her immaturity and actual lack of caring skills. The psychologist, K.M., engaged by the first applicant (see paragraph 98 below) should not be allowed to give evidence. He had videotaped a contact session without the parties\u2019 agreement; refused to send the video to the child welfare services; had never provided anything in writing, nor anything that had been quality-checked such as was the ordinary procedure for expert reports; the municipality had already reported him to the health supervision authorities and the Ethics Council of the Psychologists\u2019 Association.","98.On 22 February 2012 the City Court, composed of one professional judge, one psychologist and one lay person, in accordance with section 36-4 of the Dispute Act (see paragraph 133 below), upheld the decision after having held a hearing which lasted from 13 to 15 February 2012 and during which twenty-one witnesses were heard. Among the witnesses called by the child welfare services were the persons responsible for supervision of the foster home and the contact sessions, S.H. from the Children\u2019s and Young People\u2019s Psychiatric Out-Patient Clinic, expert psychologists B.S. and M.S. (see, inter alia, paragraphs 58, 61, 62 and 63 above) and the family consultant from the parent-child institution (see, for example, paragraph 24 above). Among the witnesses called by the first applicant were members of her family, her husband and members of his family, the medical director at the hospital where the first applicant had undergone surgery in 2005 (see paragraph 72 above) and specialist in psychology K.M. (see paragraph 97 above). The first applicant was present together with her legal aid counsel.","(b)The City Court\u2019s reasoning regarding whether X\u2019s public care could be discontinued","99.As a preliminary point in its judgment the City Court stated that during the hearing some time had been spent shedding light on the circumstances existing prior to the decision ordering X to be taken into care. The City Court stated that it would only examine the situation prior to the placement decision in so far as necessary to assess the situation at the time of its judgment appropriately.","100.The City Court went on to note that the first applicant\u2019s situation in some areas had improved during the last year. She had married in August 2011, her husband had a permanent job and they had a daughter, Y. It also noted that the child welfare services in the couple\u2019s current municipality were conducting an ongoing inquiry concerning the mother\u2019s ability to care for Y. A staff member of the child welfare services in that new municipality had testified at the oral hearing, stating that they had not received any reports of concern other than the one from the child welfare services in the first applicant\u2019s former municipality. As part of their inquiry they had made observations at the first applicant\u2019s home. They had observed many good aspects but also that the parents might need some help with routines and structure. The City Court found that this indicated that the child welfare services in the municipality to which the first applicant had moved considered that the parents could give Y adequate care if assisted by the child welfare services. Y was not a child with any special care needs.","101.However, on the basis of the evidence the situation was different with regard to X, whom several experts had described as a vulnerable child. The City Court referred in particular to a statement from a professional at the Children\u2019s and Young People\u2019s Psychiatric Out-Patient Clinic explaining that, as late as December 2011, X was easily stressed and needed a lot of quiet, security and support. If his emotional development in the future were to be sound, the carer would have to be aware of that and take it into account. When the first applicant gave evidence in court, she had clearly shown that she did not realise what challenges she would face if X were to be moved from the foster home. She could not see his vulnerability, her primary concern being that he should grow up \u201cwhere he belonged\u201d. The first applicant believed that returning him would be unproblematic and still did not understand why the child welfare services had had to intervene when he was placed in the emergency foster home. She had not wished to say anything about how she thought X was developing in the foster home. In the City Court\u2019s view, the first applicant would not be sufficiently able to see or understand X\u2019s special care needs, and if those needs were not met, there would be a considerable risk of abnormal development.","102.The City Court also took account of how the foster parents and supervisor had described X\u2019s emotional reactions after contact sessions with his mother, namely, his inconsolable crying and need for a lot of sleep. During the contact sessions X had repeatedly resisted contact with the first applicant and, as the sessions had progressed, reacted with what had been described as resignation. The City Court considered that a possible reason for that was that the boy was vulnerable to inexpedient interaction and information that was not adapted to his age and functioning. The first applicant\u2019s emotional outbursts in situations during the contact sessions, for example when X had sought out his foster mother and called her \u201cMummy\u201d, were seen as potentially frightening (skremmende) and not conducive to X\u2019s sound development.","103.The City Court held that the presentation of evidence had \u201cclearly shown\u201d that the \u201cfundamental limitations\u201d (grunnleggende begrensningene) that had existed at the time of the High Court\u2019s judgment still existed. Nothing had emerged during the City Court\u2019s consideration of the case to indicate that the first applicant had developed a more positive attitude to the child welfare services or to the foster mother, beyond a statement made by her to the extent that she was willing to cooperate. She had snubbed the foster mother when she had said hello during the contact sessions and had never asked for information about X. The first applicant had left in frustration forty minutes before the last visit had been scheduled to end. Everyone who had been present during the contact sessions had described the atmosphere as unpleasant. The City Court considered that one possible reason why the first applicant\u2019s competence at contact sessions had not improved was that she struggled so much with her own feelings and with missing X that it made her incapable of considering the child\u2019s perspective and protecting him from her own emotional outbursts. An improvement was contingent upon her understanding X and his needs and on her being willing to work on herself and her own weaknesses. The first applicant had not shown any positive developments in her competence in contact situations throughout the three years she had had rights of contact. The fact that her parents had a remarkably negative attitude to the municipal child welfare services did not make it any easier for her.","104.The first applicant had claimed in court that she was a victim of injustice and that she would fight until X was returned to her. To shed light on her own situation, she had chosen to post her story on the Internet in June 2011 with a photograph of herself and X. In that article and several comments posted during the autumn of 2011, she had made serious accusations against the child welfare services and the foster parents \u2013 accusations which she had admitted in court were untrue. The first applicant did not consider that public exposure and repeated legal proceedings could be harmful for the child in the long term.","105.The City Court noted that the psychologist K.M. (see paragraphs97-98 above), who had examined and treated the first applicant, had testified that she did not meet the criteria for any psychiatric diagnosis. He had counselled her in connection with the trauma inflicted on her by having her child taken away. The goal of the treatment had been to make the first applicant feel like a good mother. He believed that the previous assessments of the first applicant\u2019s ability to provide care had at that time been incorrect, and argued before the City Court that the best outcome for X would be to be returned to his biological mother. However, the City Court stated that the psychologist K.M.\u2019s arguments had been based on research conducted in the 1960s, and found them to be incompatible with recent infant research. It noted that the other experts who had testified in court, including the psychologists B.S. and M.S., had advised against returning X to his mother, as this would be very harmful for him.","106.In conclusion thus far, the City Court agreed with the County Social Welfare Board that the first applicant had not changed in such a way as to indicate that it was highly probable that she would be able to provide X with proper care. It endorsed the Board\u2019s grounds, holding that the first applicant\u2019s clear limitations as a carer could not be mitigated by an adapted transitional scheme, assistance measures or support from her network. It did not find reason to consider other arguments regarding her ability to provide care in more detail, as returning X to her was in any case not an option owing to the serious problems it would cause him to be moved from the foster home. The City Court agreed at this point with the Board in its finding that X had developed such an attachment to his foster parents, his foster brother and the general foster home environment that it would lead to serious problems if he had to move. X\u2019s primary security and sense of belonging were in the foster home and he perceived the foster parents as his psychological parents. On those grounds the care order could not be revoked.","(c)The City Court\u2019s reasoning regarding whether parental responsibilities for X should be withdrawn and consent to his adoption given","107.Turning to the issues of withdrawal of parental responsibilities and consent to adoption, the City Court stated at the outset that where a care order had been issued, it was in principle sufficient for removal of parental responsibilities that this be in the child\u2019s best interests. At the same time, it had been emphasised in several Supreme Court judgments that removal of parental responsibilities was a very invasive decision and that therefore strong reasons were required for making such a decision (see, inter alia, paragraph 125 below). The requirements in respect of adoption were even more stringent. However, the questions of withdrawal of parental responsibilities and consent to adoption had to be seen in conjunction, since the primary reason for withdrawing parental responsibilities would be to facilitate adoption. The court also took into consideration that if the first applicant retained her parental responsibilities, she might engage in conflicts in the future about the rights that such responsibility entailed, such as exposing the child on the Internet.","108.The City Court went on to declare that adoption could only be granted if the four conditions in the third paragraph of section 4-20 of the Child Welfare Act were met (see paragraph 122 below), and endorsed the Board\u2019s grounds for finding that such was the case regarding the criteria in letters (a), namely that it had to be regarded as probable that the first applicant would be permanently unable to provide X with proper care or that X had become so attached to his foster home and the environment there that, on the basis of an overall assessment, removing him could lead to serious problems for him; (c), namely that the persons applying for adoption had been X\u2019s foster parents and had shown themselves fit to bring him up as their own child; and (d), namely that the conditions for granting an adoption under the Adoption Act (see paragraph 132 below) were satisfied; as to letter (d), further documents had also been submitted to the court. In the present case the decisive factor was therefore whether adoption was in X\u2019s best interests under letter (b), and whether consent for adoption should be given on the basis of an overall assessment. Regarding that assessment, several Supreme Court judgments had stated that strong reasons must exist for consenting to adoption against the will of a biological parent. There must be a high degree of certainty that adoption would be in the child\u2019s best interests. It was also clear that the decision must be based not only on a concrete assessment, but also on general experience from child-psychology research. Reference was made to the Supreme Court\u2019s judgment in Rt. 2007, page 561 (see paragraph 125 below).","109.Applying the general principles to the instant case, the City Court first noted that X was at that time three and a half years old and had lived in his foster home since he was three weeks old. His fundamental attachment in the social and psychological sense was to his foster parents, and it would in any event be a long-term placement. X was moreover a vulnerable child, and adoption would help to strengthen his sense of belonging with his foster parents, whom he regarded as his parents. It was particularly important to a child\u2019s development to experience a secure and sound attachment to its psychological parents. Adoption would give X a sense of belonging and security in the years ahead for longer than the period a foster-home relationship would last. Practical considerations also indicated that persons who had care and control of a child and who in reality functioned as its parents should carry out the functions that derived from parental responsibilities.","110.The City Court noted that adoption meant that the legal ties to the biological family were severed. In its opinion, X, despite spending the first three weeks of his life with his mother and having many contact sessions, had not bonded psychologically with her. That had remained the case even though he had been told at a later stage that the first applicant had given birth to him.","111.Furthermore, the court took account of the fact that even if no further contact sessions were organised, the foster parents had taken a positive view of letting X contact his biological parent if he so wished.","112.Based on an overall assessment, the City Court found that it would be in X\u2019s best interests for the first applicant\u2019s parental responsibilities to be withdrawn and for the foster parents to be allowed to adopt him. The court believed that particularly weighty reasons existed for consenting to adoption in the present case.","113.The City Court stated, lastly, that since it had decided that X should be adopted, it was unable to decide on contact rights for the first applicant, since that question would be up to the foster parents to decide. It mentioned that section 4-20a of the Child Welfare Act provided a legal basis for determining rights to contact subsequent to adoption (see paragraph 122 below, where that provision is reiterated, and paragraph 128 below, on the \u201copen adoption\u201d system). The City Court was not competent, however, to examine or determine such rights since its competence was dependent on a party to the case having made a request to that effect. In the instant case, neither of the parties had done so.","3.Proceedings before the High Court and the Supreme Court","114.On 14 March 2012 the first applicant, through her counsel, appealed against the judgment, claiming that the City Court had evaluated the evidence incorrectly when concluding that the first applicant was permanently unable to care for X. Counsel stated that the High Court should appoint an expert to assess the first applicant\u2019s husband\u2019s help to mother and child, and the first applicant\u2019s caring skills at the time. In response to a letter from the High Court, dated 16 March 2012, counsel also argued that the City Court should have obtained an assessment by an expert witness concerning her and her husband\u2019s ability to provide adequate care.","115.In their response, dated 26 April 2012, to the first applicant\u2019s arguments that an expert assessment was necessary in the light of her new situation, the municipality stated, inter alia, that they had made several requests to be allowed to get to know the first applicant\u2019s husband (see, for example, paragraph 85 above), and that the first applicant had consistently chosen to disregard those requests. Since the child welfare services responsible for X did not have any insights into the family\u2019s situation in their new municipality, they could only rely on the information they had received from the child welfare services in that municipality, from which they could not infer that the first applicant could take care of X.","116.On 12 June 2012 the first applicant, who had then instructed new counsel, submitted to the High Court a statement from the child welfare services in her new municipality. It emerged from the statement, dated 21March 2012, that those child welfare services had visited the family five times, each time for one and a half hours. They considered that the family needed assistance in the form of guidance with respect to interaction with their baby, which they could obtain from the local \u201cbaby team\u201d (spedbarnsteamet) as well as a social worker (milj\u00f8terapeut) in the home, who could help with routines, structure and cleanliness. The first applicant\u2019s counsel also argued that the foster mother\u2019s presence during the contact sessions had disturbed (virket forstyrrende p\u00e5) their implementation.","117.On 23 August 2012 counsel for the first applicant submitted a report from the child welfare services in the first applicant\u2019s new municipality, dated 5 June 2012. In the report it was stated, inter alia, that the parents had stated early on that they would accept advice and guidance if the child welfare services so recommended. The mother had stated that she had had a bad experience with the \u201cbaby team\u201d, but that she could accept help from them if another person on the team was appointed to be her contact. In the report it was further stated that the child welfare services considered that it had observed two parents who showed that they wanted the best for their child. The first applicant played with the child, talked to her and engaged actively with her. On the basis of all the information contained in the observations, the child welfare services considered that the parents had to work on routines, cleanliness and involvement with the child. The parents accepted that a social worker be assigned to help them in the home.","118.In the meantime, on 22 August 2012, the High Court had decided not to grant leave to appeal because the conditions in section 36-10 of the Dispute Act (see paragraph 133 below) had not been met. The High Court stated that the case did not raise any new legal issues of importance for the uniform application of the law. With regard to whether new information had emerged, the court noted that the assessment dated 21 March 2012 had been made by, inter alia, a person who had testified before the City Court and that the document would not change the outcome of the case. The first applicant\u2019s caring skills had been thoroughly examined in connection with the Board\u2019s processing of the case and no new information had emerged that indicated changes in that respect. Moreover, the City Court\u2019s reasons were convincing and the High Court observed that the first applicant had not asked for an expert witness to be heard in the City Court and had not given any reasons as to why it was necessary to appoint an expert before the High Court. As had just been mentioned, there was no new information that indicated any changes in her caring skills. Thus there were no serious flaws in the City Court\u2019s judgment or procedure and no reasons for granting leave to appeal.","119.On 24 September 2012 the first applicant appealed against the decision to the Supreme Court. She submitted an assessment concerning the experience of the social worker in respect of her work with the family and their care for Y (see paragraph 117 above), dated 14 August 2012. In that document it was concluded that a positive development had started and that the social worker should continue to assist the family. The first applicant argued that the City Court had relied more on older documents than on the circumstances at the time of its judgment and had disregarded the fact that its judgment would have the effect of depriving Y of contact with X. She further repeated her argument that the foster mother\u2019s presence had disturbed the contact sessions (see paragraph 116 above) and maintained that the child welfare services had not properly organised the sessions.","120.In its reply of 4 October 2012 the municipality stated, inter alia, that it was positive that the first applicant and her husband had managed to avail themselves of the guidance received from the social worker, but that X was a vulnerable child whereas Y did not face similar challenges. As to the first applicant\u2019s argument that the City Court had not based its decision on the circumstances at the time of its judgment, the municipality pointed to the fact that five out of the eight witnesses they had called, and all the witnesses called by the first applicant, had given evidence before the City Court on the circumstances as they were at that time. They further stated that Y would not be deprived of contact with X as long as the first applicant accepted X\u2019s foster home and contributed to making it a good experience for the children. As to Y\u2019s father, it was argued that it had emerged from his testimony before the Board and City Court that he knew little about X\u2019s placement in care and about the challenges surrounding the contact sessions. The municipality also submitted that they would argue before the Supreme Court that X\u2019s right to respect for his family life was also protected by Article 8 of the Convention and that his need for stability in the foster home and good care would be best ensured if he were adopted.","121.On 15 October 2012 the Supreme Court Appeals Board (H\u00f8yesteretts ankeutvalg) dismissed the first applicant\u2019s appeal against the High Court\u2019s decision."],"145":["5.The applicant was born in 1949 and lives in St Petersburg.","A.Background to the case","6.The applicant is suffering from advanced metastatic prostate cancer.","7.It appears that he was first diagnosed with that cancer in early 2007. In that connection, on 26 February 2007 the applicant was granted the status of a disabled person, with the result that, by virtue of Federal Law no.178\u2011FZ of 17 July 1999 on State social assistance (\u201cthe State Social Assistance Act\u201d \u2013 see paragraph 34 below), he became entitled to the provision of certain medicines free of charge on the basis of medical prescriptions issued by competent doctors. A list of the relevant medicines was approved by decree no. 665 of the Russian Ministry of Healthcare and Social Development of 18 September 2006 (see paragraph 38 below).","8.In February 2007 the applicant was put on the federal register of persons entitled to State social assistance, including the provision of free medicines. The applicant was assigned to pharmacy no. 162 of StPetersburg, where he was entitled to get free medicines for the treatment of his disease.","B.The applicant\u2019s attempts to obtain free medicines","9.At the time of the events described below, the applicant was following a programme of treatment with Bicalutamide. The treatment plan required him to take one pill every day for a period of eight to twelve months. In accordance with the relevant regulations, a prescription for that type of medicine was only valid for one month, and therefore the applicant obtained a new prescription each month. However, he was only able to get Bicalutamide free of charge once, on 5 July 2007. On all the other occasions, the pharmacy to which he had been assigned was out of stock of Bicalutamide in so far as it was available for distribution free of charge. It kept the applicant\u2019s prescriptions in order to provide a \u201cdeferred service\u201d (\u043e\u0442\u0441\u0440\u043e\u0447\u0435\u043d\u043d\u043e\u0435 \u043e\u0431\u0441\u043b\u0443\u0436\u0438\u0432\u0430\u043d\u0438\u0435), effectively promising to inform him of the availability of free-of-charge Bicalutamide as soon as stocks were replenished. At the same time, the applicant was informed that he could obtain the required medicine at his own expense. Since the applicant had to follow his treatment plan continuously, he bought the medicine on 8 June, 1and 25 October and 26 November 2007 for a total amount of 49,400Russian roubles (RUB \u2013 approximately 1,400 euros (EUR)).","10.According to the applicant, his aggregate monthly income, from his old-age and disability pensions plus extra earnings as a result of consulting for a private firm until 31 October 2007, totalled RUB7,105.15 (approximately EUR 200).","11.The applicant complained to various public bodies about the unavailability of free-of-charge Bicalutamide, seeking also to have his expenses, borne in connection with the purchase of that medicine, reimbursed.","12.In a letter of 11 May 2007 the St Petersburg Committee of Healthcare (\u041a\u043e\u043c\u0438\u0442\u0435\u0442 \u043f\u043e \u0437\u0434\u0440\u0430\u0432\u043e\u043e\u0445\u0440\u0430\u043d\u0435\u043d\u0438\u044e \u0433. \u0421\u0430\u043d\u043a\u0442-\u041f\u0435\u0442\u0435\u0440\u0431\u0443\u0440\u0433\u0430 \u2013 \u201cthe St Petersburg Healthcare Committee\u201d) replied to the applicant\u2019s complaints, stating that the provision of medicines free of charge was funded by the federal budget, and that, by virtue of executive order no. 328 of the Russian Ministry of Healthcare and Social Development (see paragraph 37 below), in the absence of the necessary medicine a patient\u2019s prescription should be taken by a pharmacy for a \u201cdeferred service\u201d. The letter further stated that the St Petersburg Healthcare Committee had sent a request to a pharmaceutical company with a view to obtaining free-of-charge Bicalutamide, and that as soon as the medicine arrived at the pharmacy to which the applicant was assigned, he would be informed accordingly. The letter also informed the applicant that, under the relevant legislation, individuals in difficult financial circumstances could obtain financial aid from district centres of social support located in the vicinity of those individuals\u2019 domiciles, and the amount of that aid would be determined by the local authorities.","13.In a letter of 10 September 2007 the St Petersburg Healthcare Committee stated that it would not reimburse the costs of medicines which patients had obtained at their own expense. The letter further invited the applicant to apply to the relevant district centre of social support for financial aid.","14.On 7 November 2007 the St Petersburg Fund of Compulsory Medical Insurance (\u0422\u0435\u0440\u0440\u0438\u0442\u043e\u0440\u0438\u0430\u043b\u044c\u043d\u044b\u0439 \u0444\u043e\u043d\u0434 \u043e\u0431\u044f\u0437\u0430\u0442\u0435\u043b\u044c\u043d\u043e\u0433\u043e \u043c\u0435\u0434\u0438\u0446\u0438\u043d\u0441\u043a\u043e\u0433\u043e \u0441\u0442\u0440\u0430\u0445\u043e\u0432\u0430\u043d\u0438\u044f \u0433. \u0421\u0430\u043d\u043a\u0442-\u041f\u0435\u0442\u0435\u0440\u0431\u0443\u0440\u0433\u0430 \u2013 \u201cthe St. Petersburg Medical Insurance Fund\u201d) informed the applicant that the federal legislation on social support did not provide for the reimbursement of patients\u2019 expenses for medicines included in the list of those to be provided free of charge in the context of the relevant State programmes. It further stated that it was the St Petersburg Healthcare Committee that was entrusted with the task of satisfying the population\u2019s needs in respect of medicines, and therefore the applicant should address his queries to that State agency.","C.The applicant\u2019s attempts to obtain free legal assistance","15.According to the applicant, between October 2007 and February 2008 he also applied to various State agencies, non-governmental and human rights organisations, and bar associations in an attempt to obtain free legal advice and legal representation for any eventual court proceedings. These attempts proved unsuccessful.","16.In a letter of 14 January 2008 a deputy president of the St Petersburg Bar Association informed the applicant that free legal advice could be provided to a disabled person only in connection with his or her individual rehabilitation programme.","D.Proceedings before courts","17.On 10 December 2007 the applicant brought civil proceedings against the St Petersburg Healthcare Committee and the St Petersburg Medical Insurance Fund in the Moskovskiy District Court of St Petersburg (\u201cthe District Court\u201d). He sought compensation for pecuniary damage that he had sustained as a result of being compelled to obtain Bicalutamide at his own expense, and compensation in respect of non-pecuniary damage arising from the distress that he had suffered.","18.The materials in the case file, including the applicant\u2019s written submissions before the first-instance court and transcripts of the court hearings, reveal that the applicant advanced detailed arguments, with reference to the relevant domestic legal instruments, and actively participated in the court hearings, filing written applications and requests. The first-instance court granted some of the applications and requests, whilst rejecting others as irrelevant.","19.At the hearings, the defendants objected to the applicant\u2019s claim. In particular, a representative of the St Petersburg Medical Insurance Fund argued that it was an obligation of the federal authorities to provide the relevant categories of citizens with free medicines, and that the entire amount earmarked by the Federal Fund of Compulsory Medical Insurance (\u201cthe Federal Medical Insurance Fund\u201d) for that purpose for the StPetersburg Medical Insurance Fund had been transferred by the latter to a relevant pharmaceutical company with a view to obtaining the necessary medicines. In spite of this, the St Petersburg Medical Insurance Fund still had an outstanding debt with that company in respect of the medicines which the eligible residents of St Petersburg had obtained free of charge from the city\u2019s pharmacies. The representative further argued that in 2007, with reference to the limits of the federal budget, the Federal Medical Insurance Fund had rejected the St Petersburg Medical Insurance Fund\u2019s request for the provision of the necessary free-of-charge medicines for the eligible inhabitants of the city in quantities sufficient to cover their needs.","20.A representative of the St Petersburg Healthcare Committee stated that it had never been allocated any financial resources from the federal budget to ensure the provision of free medicines, as it had only been responsible for performing coordinating and monitoring functions for the implementation of the relevant federal programme.","21.On 5 February 2008 the District Court rejected the applicant\u2019s claim in full.","22.In its judgment, the District Court established that the applicant had the status of a disabled person, and reaffirmed that under the State Social Assistance Act, and a relevant presidential decree, individuals with disabilities had a right to State assistance in the form of the provision of various social services, including free medicines, and that it was the State\u2019s obligation to provide that assistance.","23.It also established that, on five occasions between April and November 2007, the applicant had received prescriptions for Bicalutamide and that he had, on four occasions, had to buy that medicine at his own expense for a total amount of RUB49,400 (approximately EUR 1,400). The court also noted the applicant\u2019s unsuccessful attempts to seek the assistance of the StPetersburg Medical Insurance Fund or the St Petersburg Healthcare Committee in obtaining the free medicine or in having his expenses reimbursed.","24.The court quoted decision no. 864 of 29 December 2004 of the Russian Government (see paragraph 36 below), which had imposed an obligation on the territorial compulsory medical insurance funds to submit requests to the Federal Medical Insurance Fund for the allocation of the financial resources necessary for the provision of free medicines. It was the Federal Medical Insurance Fund which, in accordance with that decision, was to earmark the necessary amounts from the federal budget for the appropriate territorial funds, and the latter were to transfer those amounts on a monthly basis to relevant pharmaceutical organisations, while a relevant territorial healthcare committee \u2013 an executive State agency \u2013 was to monitor the use of those financial resources by the relevant territorial compulsory medical insurance fund.","25.In the above connection, the District Court observed that in 2007 the Federal Medical Insurance Fund had rejected the request of the StPetersburg Medical Insurance Fund for the supply of free medicines based on the assessment of the needs of the residents of St Petersburg, having stated that the limits of the financial resources allocated for that purpose in the federal budget had been exceeded. The court also noted that the StPetersburg Medical Insurance Fund had submitted, in due course, an additional request for the provision of free medicines, including Bicalutamide, for the residents of St Petersburg for the second half of the year 2007 and that it had duly spent the entire amount earmarked for that purpose from the federal budget but still had an outstanding debt before the relevant pharmaceutical company.","26.The court went on to note that the St Petersburg Healthcare Committee did not get any allocation from the federal budget for the provision of free medicines to relevant categories of residents of StPetersburg.","27.In the light of the foregoing, the District Court concluded that there were no grounds to allow the applicant\u2019s claim, as it had not been established during the proceedings that the applicant had sustained pecuniary losses and suffered non-pecuniary damage because of any unlawful actions on the part of either the St Petersburg Medical Insurance Fund or the St Petersburg Healthcare Committee.","28.The court found, in particular, that the StPetersburg Medical Insurance Fund had fully complied with its relevant obligations concerning provision of free medicines to certain categories of individuals within the limits of the sums allocated for that purpose from the federal budget. The court further referred to the fact that the request of the St Petersburg Medical Insurance Fund for the supply of free medicines corresponding to the needs of the residents of St Petersburg had been rejected by the Federal Medical Insurance Fund. Therefore, in the District Court\u2019s view, there had been no fault on the part of the St Petersburg Medical Insurance Fund in the failure to provide the eligible residents of St Petersburg, including the applicant, with the necessary medicines, with the result that there were no grounds to hold the St Petersburg Medical Insurance Fund liable for the reimbursement of the applicant\u2019s expenses for the purchase of the Bicalutamide.","29.The District Court further found no grounds to impose any such responsibility on the St Petersburg Healthcare Committee either, stating that its relevant programmes were financed from the federal budget and that the Committee only monitored and coordinated the provision of the patients with free medicines.","30.The court noted that, by virtue of Article 1069 of the Russian Civil Code (see paragraph 50 below), damage inflicted on an individual as a result of unlawful action or inaction of State bodies or officials was to be compensated. However, since there had neither been a fault on the part of the St Petersburg Healthcare Committee in failing to provide the eligible residents of St Petersburg with free medicines under the relevant federal programme, nor had a causal link been established between the action or inaction of that Committee and the expenses incurred by the applicant as a result of having to purchase the Bicalutamide medicine, that Committee had no obligation to reimburse those expenses.","31.On 23 April 2008 the St Petersburg City Court upheld the judgment of 5February 2008 on appeal, endorsing the reasoning of the District Court. Further attempts by the applicant to have his case reviewed by means of a supervisory review proved futile."],"146":["5.The applicant was born in 1993 and lives in Mez\u0151ber\u00e9ny.","6.The applicant is a journalist at abcug.hu, an Internet news portal. On 7May 2015 he contacted a civil society organisation with a view to covering their activities at the V\u00e1mosszabadi Reception Centre for asylum-seekers and refugees. He was informed that a request for authorisation to enter the Reception Centre should be addressed to the Office of Immigration and Nationality (hereinafter \u201cthe OIN\u201d).","7.The applicant\u2019s request was dismissed by the OIN\u2019s press department on 12 May 2015, relying on the personality rights of the people accommodated in the Reception Centre.","8.On 14 September 2015 the applicant lodged a new request with the OIN. He sought permission to enter the Debrecen Reception Centre to interview the people staying there and prepare a report on the living conditions, that would include pictures. He specified that photographs would only be taken with the permission of the individuals concerned and that should it be necessary he would obtain a written waiver each time. The reason for the applicant\u2019s choosing the Debrecen Reception Centre was to provide an objective account of the living conditions there, in particular since in April 2015 the Commissioner for Fundamental Rights had issued a report in accordance with the Optional Protocol to UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment condemning the living conditions there, which amounted to inhuman and degrading treatment. Furthermore, the Reception Centre was constantly presented in the State-owned media as part of the Government\u2019s anti\u2011immigration campaign.","9.On 14 September 2015 the OIN rejected his request, relying on ArticleIV \u00a7 1 of the Fundamental Law and section 2(5) of Regulation no.52\/2007 (XII.11) of the Ministry of Justice and Law-Enforcement. The OIN noted that there was constant media interest in asylum-seekers and regular visits to the Reception Centre would infringe their private lives. Moreover, many people accommodated in the Reception Centre had fled from some form of persecution and information about them appearing in the press could endanger both their and their families\u2019 security. It was the domestic authorities\u2019 responsibility to ensure that persecutors could not receive information on the asylum-seekers\u2019 whereabouts through the press.","10.The applicant sought judicial review of the refusal of his request. On 12November 2015 the Budapest Administrative and Labour Court declared his action inadmissible since the Office of Immigration and Nationality\u2019s reply had not been an administrative decision within the meaning of section12 of the Administrative Procedure Act no. CXL of 2004, thus it was not subject to judicial review.","11.In June 2016 the applicant intended to visit the Reception Centre in K\u00f6rmend together with a Member of Parliament (MP). While the MP was allowed to enter that centre, the applicant was denied access. Subsequently, on 12 July 2016 the applicant published an article on the basis of the MP\u2019s account.","12.Government Decree No. 301\/2007 (XI.9.) on the implementation of the Act on Asylum, as in force the material time, provided as follows:","Section 12","\u201c...","(3) A reception centre is a facility operated by the refugee authority in order to accommodate and care for person seeking recognition, refugees, beneficiaries of subsidiary or temporary protection and persons with tolerated stay.","...\u201d","13.Decree no. 52\/2007 (XII.11) of the Ministry of Justice on the organisational structure of the asylum system provides, in its relevant part, as follows:","Section 2","\u201c...","(5) A visitor may enter and stay on the property of the reception centre with the permission of its director.\u201d","Annex to decree no. 52\/2007","House rules of the reception centre","\u201c1.Persons placed at the reception centre and visitors shall equally comply with the rules of conduct specified in the house rules.","2.Persons placed at the reception centre and visitors shall comply with the instructions of the staff of the reception centre. Visitors who breach the house rules shall be requested to leave the area of the reception centre.","3.Persons placed in the reception centre and visitors shall behave in such way as not to infringe the rights or disturb the peace of the other inhabitants of the reception centre.","...","16.Persons seeking recognition placed at the reception centre shall announce in advance to the officer of the asylum authority their intention to leave the centre.\u201d","14.In its General Comment no. 34 on Article 19 (Freedoms of opinion and expression) of the International Covenant on Civil and Political Rights, published on 12 September 2011, the United Nations Human Rights Committee stated as follows:","\u201c45.It is normally incompatible with paragraph 3 to restrict the freedom of journalists and others who seek to exercise their freedom of expression (such as persons who wish to travel to human rights-related meetings) to travel outside the State party, to restrict the entry into the State party of foreign journalists to those from specified countries or to restrict freedom of movement of journalists and human rights investigators within the State party (including to conflict-affected locations, the sites of natural disasters and locations where there are allegations of human rights abuses).\u201d","15.On 13 April 2016 the Committee of Ministers adopted Recommendation CM\/Rec(2016)4 to member States on the protection of journalism and safety of journalists and other media actors, which, in its relevant part reads as follows:","\u201c26.The State should not unduly restrict the free movement of journalists and other media actors, including cross-border movement and access to particular areas, conflict zones, sites and forums, as appropriate, because such mobility and access is important for news and information-gathering purposes.\u201d","16.On 26 September 2017 the Declaration by the Committee of Ministers on the protection and promotion of investigative journalism was adopted, which contains the following:","\u201cThe Committee of the Ministers of the Council of Europe","...","II. Calls on member states to protect and promote investigative journalism, having regard to Article 10 of the European Convention on Human Rights, the relevant case-law of the European Court of Human Rights and other Council of Europe standards, and in this context:","...","ii. to ensure the freedom of movement of media professionals and their access to information in line with Council of Europe standards and facilitate critical and in-depth reporting in service of democracy;","...\u201d","17.All member States have national legislation that regulates immigration and asylum. However, not all specifically regulate access to and visiting rights in respect of centres. Additionally, national legislation differs in respect of the individuals and centres it applies to. Some national regulations apply to all types of immigrants and foreigners, while others are more specific regarding to which types of immigrants they apply. In many cases, national legislation dealing with the rights of asylum seekers is supplemented by rules for individual centres or by additional (sometimes regional or local) regulation specifying the conditions for visits.","18.Whether visiting is possible as a result of national legislation, regional or local regulations, or centre-specific rules, most reception centres impose some practical conditions on access, such as visiting hours, time\u2011limits, designated visiting areas, registration or prior authorisation. Many States also reserve the right of the centres to restrict access. The most common grounds invoked for restrictions on access are security, privacy, welfare and sanitary reasons.","19.In twenty-four member States, regulations are silent on media access to reception centres; they neither provide them with additional or easier access, nor do they outright limit their ability to visit the centres. In at least ten member States media representatives are required to gain prior authorisation or give prior announcement of their intent to visit reception centres (Armenia, Austria (under federal law), Bosnia and Herzegovina, Croatia, Estonia, France, Latvia, the Netherlands, Norway and Poland). In a few States, journalists are afforded somewhat broader access than ordinary visitors (Germany, Italy, Romania, Russia, Serbia and Turkey), mainly rooted in legislation concerning freedom of the press or freedom of information of public interest."],"147":["The applicant, Mr Ruslan Stratan, is a Moldovan national, who was born in 1975 and lives in Chi\u0219in\u0103u. He was represented before the Court by Mr V. Corobov\u021bev, practicing in Chi\u0219in\u0103u.","The Moldovan Government (\u201cthe Government\u201d) were represented by their Agent, Mr L. Apostol.","Mr Stratan was accused of fraud. After having been acquitted by the first-instance court he went abroad and no longer appeared at trial. His lawyer, Mr Corobov\u021bev, failed to appear at several hearings and was eventually replaced by a State-appointed lawyer.","On 2 September 2008 an application form was introduced on behalf of the applicant and signed by Mr Valerii Corobov\u021bev. No authority form was enclosed."],"148":["7.The facts of the case, as submitted by the applicants, may be summarised as follows.","A.The background facts","1.The first applicant, J.D.","8.The applicant J.D. has lived with her adult, disabled daughter in a 3bedroom property in the social rented sector since 1993. Her daughter has a type of brain damage associated with oxygen deprivation, severe physical and learning disabilities, is a permanent wheelchair user and is registered blind. J.D. cares for her daughter full time and their house was specifically designed to accommodate their needs including wide doors, an internal lift, a gradual slope at the front and rear to allow wheelchair access, ceiling hoists in the bathroom and bedroom, an accessible bathroom and a changing bed.","9.In 2012 the Government introduced the Housing Benefit (Amendment) Regulations 2012 (see Relevant domestic law, below). As a result the applicant\u2019s Housing Benefit was reduced by 14%, because she is considered to have one more bedroom than that to which she is entitled (as the house has 3 bedrooms for 2 people). Because of the reduction, the applicant\u2019s Housing Benefit no longer meets the cost of her rent.","10.The applicant applied for Discretionary Housing Payments (\u201cDHP\u201d) to meet the difference, which were awarded on a temporary basis. Her last award expired on 31 March 2017 and at the time of making her application she was awaiting a response to her most recent claim and had not been offered smaller accommodation which would meet her daughter\u2019s needs.","2.The second applicant, A","11.The applicant A lives in a 3 bedroom house in the social rented sector with her son. She has lived there for more than 25 years. It appears that she was allocated a 3 bedroom house because of the shortage of 2bedroom houses.","12.In the past the applicant had a brief relationship with a man known as X who is considered extremely dangerous and has previously served a lengthy prison sentence for attempted murder. After his release from prison in 2002 X came to A\u2019s home and violently attacked and raped her. Her son was conceived as a result of the rape. In 2012 X contacted A again and she was referred by the police to the \u201cSanctuary Scheme\u201d. The scheme aims to protect those at risk from the most severe forms of domestic violence. As provided by the rules of her placement in the scheme, the applicant\u2019s home was adapted to include the modification of the attic to render it a \u201cpanic room\u201d where A and her son can retreat in the event of an attempted attack by X.","13.The applicant receives Housing Benefit to rent her home. Following the change in legislation in 2012, the applicant\u2019s Housing Benefit was reduced by 14%, because the applicant is considered to have one more bedroom than that to which she is entitled (as the house has 3 bedrooms for 2people). Because of the reduction, the applicant\u2019s Housing Benefit no longer meets the cost of her rent. The applicant has applied for DHPs to meet the difference, which have been awarded on a temporary basis.","14.In early 2015, her application for DHP was refused by the local authority and she received a letter threatening her with eviction. The situation was brought to the attention of the Secretary of State who intervened on A\u2019s behalf with the local authority, which reversed its decision to refuse her application for DHP. The Secretary of State informed the applicant that the refusal was the result of an \u2018error in processing\u2019 by the local authority where the fact that the applicant\u2019s home had been specially adapted was not taken into account when the decision to refuse DHP was made.","B.The Domestic proceedings","1.The first applicant","15.On 1 March 2013 the first applicant brought proceedings for judicial review. The Divisional Court gave its judgment on 30 July 2013. It considered that the relevant Regulations did discriminate against those who had a need to occupy accommodation with a greater number of bedrooms than they were entitled to because of their own disability or that of a family or household member. However, they considered that there was no \u201cprecise class of persons\u201d who could be identified as affected by the measure, by reason of their disability. Moreover, such discrimination would only breach Article14 taken together with Article 8 and\/or Article 1 of Protocol No. 1 of the Convention, if it were \u201cmanifestly without reasonable foundation\u201d, and that test was not satisfied in the case.","16.The applicant together with four other claimants, appealed to the Court of Appeal, which gave its judgment on 21 February 2014. The Court of Appeal held that the Regulations discriminated against disabled people who had a need for additional accommodation as compared with comparable non-disabled people who do not have such a need. The Court of Appeal considered whether it should be classified as direct or indirect discrimination although in its view the type of discrimination was not material in light of the Strasbourg case-law. The Master of the Rolls (LordNeuberger) giving the lead opinion concluded on this point:","\u201c47.In case the classification question is material, I shall content myself with saying that ... the discrimination in this case is one of indirect or Thlimennos discrimination. It is not necessary to distinguish between these two. As a matter of substance, Regulation B13 discriminates against disabled persons on the ground of disability ...\u201d","17.However, applying the test of \u201cmanifestly without reasonable foundation\u201d the Court of Appeal found that the discrimination was justified for three reasons. First, because the applicant did not form a very limited class, and to include an imprecise class to whom the Regulations would not apply would introduce more complexity into the assessment and be administratively intensive and costly. Second, discretionary payments were suitable to deal with disability-related needs as they can be imposed for shorter periods and demanded more rigorous financial discipline from local authorities. Third, the Secretary of State was entitled to take the view that there were certain groups of persons whose needs for assistance with payment of their rent are better dealt with by discretionary payments rather than Housing Benefits.","18.The applicant appealed to the Supreme Court. The proceedings were joined with that of the second applicant and a number of other claimants (see paragraphs 22-30 below).","2.The second applicant","19.The second applicant brought a claim for judicial review on the basis of gender discrimination on 24 May 2014; the High Court gave judgment on 29January 2015. It concluded that the Regulations were prima facie discriminatory on grounds of gender but that the discrimination was justified. In its judgment, the High Court examined the system of Sanctuary Schemes, summarised as follows:","\u201c9.Sanctuary Schemes","A Sanctuary Scheme provides for the adaption of a property to make it secure. In particular there may be a secured room or space. The safe room provides a place to which the person can retreat if violence occurs or they are in fear of attack whilst they call the police and wait for assistance. The address is \u2018tagged\u2019 on police computer systems to ensure a quick response to a 999 call or the activation of a panic button. Specialist, tailored support is also provided, and A has (what is termed) a \"complex package of multi-agency support\".","10.These Schemes have been successfully established across the country since 2006. Even a brief explanation of their aims and scope are sufficient to demonstrate what a good idea they are. One of the obvious benefits is that victims of domestic violence and the like can remain in their own homes (if they want to) rather than being forced out by the fear of violence. Leaving their home as a result of domestic violence can have serious consequences for the stability of their lives. Government statutory homelessness statistics show that domestic violence is consistently reported as the main reason for the loss of a last settled home for 12-13% of homelessness acceptances in England; see the witness statement of [ P.N.] of Women\u2019s Aid at [C4]. [the applicant\u2019s representative] submitted that Sanctuary Schemes are a means of homelessness prevention. Whilst the work costs money, it avoids the expense and upheaval of re-housing and (as A\u2019s case well illustrates) of losing the support network of friends and neighbours that takes years to build up and which is so important for the continued safety and general wellbeing of people in A\u2019s position. It is these people who help provide her with the day to day friendship and sense of community that she needs.","...","16.None of that is particularly controversial. However, there is one further piece of evidence provided by the replies to these requests which was the subject of some argument. Local authorities were asked for the number of households in Sanctuary Schemes affected by the under-occupancy provisions. The answer was 120. The average gap in funding was \u00a316.70 per week (above the average figure). Of that group of 120, the number receiving DHPs was 24 (or 20%). The Claimant relies upon that statistic to show that DHPs are not being provided to 80% of households in Sanctuary Schemes which are affected by these regulations and who should be receiving DHPs. The Defendant says that it proves nothing of the sort. [...] I observed during the course of argument that I would need to know more about the 80% before I could draw any conclusions from these figures. That remains my view. The statistic shows that DHPs are being paid to people in Sanctuary Schemes. Indeed that is A\u2019s experience. What we do not know is why they are not being paid. It may be that it is because applications are being refused. Or it may be because claimants are bridging the gap in other ways.\u201d","20.The applicant appealed to the Court of Appeal who concluded on 27January 2016 that the discrimination against the second applicant was not justified, and was unlawful. The case proceeded on the basis that Regulation B13 constituted \u201cprima facie discrimination on grounds of sex and disability\u201d (see \u00a7 5). The primary question before the court was therefore whether that discrimination had been justified. The court set out the situation of the second applicant:","\u201c10.A has lived in a three bedroom house rented from the local council since 1989. In 1993-4 she had a brief, casual relationship with a man, X, who was subsequently convicted of attempted murder; he has been exceptionally violent to her. Whilst in prison he started to harass her and in 2002 he sought her out. A child was conceived as a result of his rape of her and was born in 2003. The child lives with her. The courts have refused contact between the son and X.","11.In 2012, X contacted A again and made threats of violence to her. The police and other agencies took the threats seriously and under one of the schemes which are known as the \"Sanctuary Schemes\" her property was adapted. She is protected under that scheme with the support of the police. In consequence of the violence of X and the continued threats from him, she suffers from PTSD and has suicidal ideation.","12.Sanctuary Schemes, which have been operating since 2006, provide for the adaptation of a house or flat to make it secure and for on-going security monitoring to enable people who have been subjected to violence, including what is often referred to a \"domestic violence\", to remain in their own home. There was powerful evidence before the judge from [P.N.], the Chief Executive of Women\u2019s Aid, about the benefits and importance of Sanctuary Schemes.\u201d","In its conclusions under Article 14, the Court of Appeal commented:","\u201c47.A and those in a similar position to A, who have suffered from serious violence, require the kind of protection offered by the Sanctuary Schemes in order to mitigate the serious effects of such violence and the continued threats of such violence. It cannot seriously be disputed that A and those in a similar position, who are within the Sanctuary Schemes and in need of an adapted \"safe\" room, are few in number and capable of easy recognition. There would be little prospect of abuse by including them within the defined categories in Regulation B13 and little need for monitoring. Moreover, with careful drafting, Regulation B13 could be amended to identify them as a discernible and certain class.","...","54.In these circumstances, whilst we saw great force in the Secretary of State\u2019s arguments, which we subjected to serious scrutiny, we feel constrained not to accept them. We acknowledge in particular that DHPs are discretionary, but that that discretion has to be exercised lawfully and in accordance with the guidance issued by the Secretary of State. If they were to be withheld inappropriately, the decision would be subject to review. We acknowledge that the evidence shows that the DHPs would cover the full deficit in Housing Benefit. We acknowledge that, even though the fund for DHPs is capped and may in theory be insufficient, there is no clear evidence that it will be; on the contrary, so far it has been sufficient. Thus, the evidence is that A has received what she would have received had those in her position been brought within a defined class in Regulation B13; she has not been disadvantaged. But that was the position in Burnip, and the same justification was not accepted.","55.Burnip obliges us also to decide that the Secretary of State was not entitled to decide that the better way of providing for A and those in a similar position was by way of DHPs, even though that would be a more flexible approach.","56.In these circumstances, we have concluded that the appeal in A must be allowed on the ground that the Secretary of State has failed to show that his reasons amount to an objective and reasonable justification for the admitted discrimination in RegulationB13.\u201d","21.The Government appealed that decision and the second applicant\u2019s case was joined with that of the first applicant and a number of others to be heard together, before the Supreme Court.","3.The proceedings before the Supreme Court","22.The Supreme Court gave its judgment on 9 November 2016. Both the applicants\u2019 claims were dismissed. Lord Toulson gave the lead judgment, Lady Hale and Lord Carnwath dissented in the case concerning the second applicant.","23.Lord Toulson first addressed the question whether the lower courts had applied the right test in asking whether the discriminatory treatment complained of was \u201cmanifestly without reasonable foundation\u201d. Where the applicants had argued that in cases such as theirs involving disability or gender discrimination, weighty reasons for justification were required, he confirmed that the lower courts were correct to apply the test of \u201cmanifestly without reasonable foundation\u201d. Lord Toulson clarified that:","\u201c32.The fundamental reason for applying the manifestly without reasonable foundation test in cases about inequality in welfare systems was given by the Grand Chamber [of the European Court of Human Rights] in Stec (para 52). Choices about welfare systems involve policy decisions on economic and social matters which are pre-eminently matters for national authorities.\u201d","24.He then went on to consider whether the domestic courts had misapplied that test. He found that they had not. He said:","\u201c41....There was certainly a reasonable foundation for the Secretary of State\u2019s decision not to create a blanket exception for anyone suffering from a disability within the meaning of the Equality Act (which covers anyone who has a physical or mental impairment that has a more than minimal long term effect on the ability to do normal daily activities) and to regard a DHP scheme as more appropriate than an exhaustive set of bright line rules to cover every contingency.","42.However, that is not the end of the matter, for there are some people who suffer from disabilities such that they have a transparent medical need for an additional bedroom...\u201d","25.He then went on to examine the situation of other claimants in the proceedings in light of the distinction he had identified. In examining the case of the first applicant, he concluded:","\u201c53.JD lives with [her] adult daughter, AD, who is severely disabled, in a specially constructed three-bedroom property. They have no objective need for that number of bedrooms. Because the property has been specially designed to meet [ADs] complex needs, there may be strong reasons for JD to receive state benefits to cover the full rent, but again it is not unreasonable for that to be considered under the DHP scheme.\u201d","26.In respect of the second applicant, he considered that whilst A had a strong case for staying where she needed to be, she had no need for a three\u2011bedroom property:","\u201c59.Notwithstanding my considerable sympathy for A and other women in her predicament, I would allow the Secretary of State\u2019s appeal in A\u2019s case. I add that for as long as A. and others in a similar situation are in need of the protection of Sanctuary Scheme housing, they must of course receive it; but that does not require the court to hold that A has a valid claim against the Secretary of State for unlawful sex discrimination.\u201d","27.He commented:","\u201c62... It was recognised from the time that [the Regulation (Reg B13)] was mooted that there will be some people who have a very powerful case for remaining where they are, on grounds of need unrelated to the size of the property. For reasons explained in the evidence (to which I have referred in para 40), it was decided not to try to deal with cases of personal need unrelated to the size of the property by general exemptions for particular categories but to take account of them through DHPs.","...","64.So while I agree that there would have been no insuperable practical difficulty in drafting an exemption from the size criteria for victims of gender violence who are in a sanctuary scheme and who need for that reason to stay where they are, deciding whether they really needed to stay in that particular property would at least in some cases require some form of evaluation. I leave aside the question debated in the evidence about whether some people in a sanctuary scheme might safely be able to make use of a spare room by taking in someone else such as a family member. Likewise I do not suppose that there would be insuperable practical difficulties in drafting exemptions to meet other categories of people who may justifiably claim to have a need to remain where they are for reasons unconnected with the size of the accommodation, but this would again require an evaluative process.\u201d","28.He considered whether the state has a positive duty to provide effective protection to victims of gender-based violence but decided not to examine the question of whether there was a duty, because this would not mandate the means by which such protection is provided.","29.Lady Hale, dissenting in respect of the second applicant\u2019s case considered unfortunate that the cases had been joined underlining that the cases where it is clear that people need an extra room because of their disability, and the case of A are different:","\u201c72... A\u2019s need is not for space but to stay where she is. The effect of the regulation is to deny her the benefit she needs in order to stay in the accommodation she needs. In my view this is unjustified discrimination against her on grounds of her sex. But the reasons are quite different from the reasons in the disability cases.","...","76.The state has provided Ms A with such a safe haven. It allocated her a three\u2011bedroom house when she did not need one. That was not her choice. It later fortified that house and put in place a detailed plan to keep her and her son safe. Reducing her Housing Benefit by reference to the number of bedrooms puts at risk her ability to stay there. Because of its special character, it will be difficult if not impossible for her to move elsewhere and that would certainly put the State to yet further expense. Given these very special circumstances, I am tempted to regard this as an interference with her and her son\u2019s right to respect for their home. But in any event, denying her the benefit she needs in order to be able to stay there is discrimination in the sense described in Thlimmenos v Greece 31 EHRR 15: treating her like any other single parent with one child when in fact she ought to be treated differently.","77.Indeed, the appellant does not seriously dispute that Ms A needs to stay where she is. The Secretary of State accepts that she needs to stay in a Sanctuary Scheme and probably in this very house. The justification suggested for the interference, or the discrimination, is the availability of discretionary housing payments to make up the shortfall in her rent. But if the discretionary housing payment scheme is not good enough to justify the discrimination against the [other] households, it is not good enough to justify the discrimination against MsA\u2019s household either. Its deficiencies were acknowledged in the Court of Appeal\u2019s decision in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR117, para 46. They are well-summed up by Mr Drabble QC [...]: it is discretionary, cash-limited and produces less certainty; it has a stricter means test; it offers different and less attractive routes of judicial challenge; it can be onerous to make applications; and it encourages short term, temporary and conditional awards. For a woman in a Sanctuary Scheme to have to endure all those difficulties and uncertainties on top of the constant fear and anxiety in which she lives cannot be justified. This is not a question of the allocation of scarce public resources: it is rightly acknowledged that public resources will have to meet this need one way or another.\u201d","30.In relation to the first applicant\u2019s case she commented:","\u201c78....In the second example, the disability is indeed a status for article 14 purposes, and I have found the case of JD and [her daughter] an extremely difficult one and have been tempted to dissent in their case too. But the distinction between them and the victims of the sex discrimination entailed in gender-based violence, is that the state has a positive obligation to provide effective protection against gender-based violence and for this small group of victims this is the only way to make that protection effective.\u201d","A.The United Nations Convention on Rights of Persons with Disabilities","47.The United Kingdom signed the United Nations Convention on the Rights of Persons with Disabilities on 30 March 2007 and ratified it on 8June 2009. The purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity (for details see Guberina v. Croatia, no.23682\/13, \u00a7\u00a734\u201137), 22 March 2016).","48.Article 28 of the Convention states:","\u201c1.States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.\u201d","49.In its concluding observations on the initial report of the United Kingdom under the Convention of 3 October 2017 (CPRD\/C\/GBR\/CO\/1), the Committee on the Rights of Persons with Disabilities raised concerns under Article 28 of the Convention about the impact of austerity measures and anti-poverty initiatives introduced following the financial crisis in 2008\/9 which \u201cresulted in severe economic constraints among person with disabilities and their families\u201d.","B.The Council of Europe Convention on preventing and combating violence against women and domestic violence (the \u201cIstanbul Convention\u201d)","50.The United Kingdom signed the Istanbul Convention on 8 June 2012. It has not ratified the Convention, nor brought it into force. The Convention aims to protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence. It also aims to contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women.","51.Article 18 of Chapter IV \u201cProtection and support\u201d, states that:","\u201c2.Parties shall take the necessary legislative or other measures, in accordance with internal law, to ensure that there are appropriate mechanisms to provide for effective co-operation between all relevant state agencies, including the judiciary, public prosecutors, law enforcement agencies, local and regional authorities as well as non-governmental organisations and other relevant organisations and entities, in protecting and supporting victims and witnesses of all forms of violence covered by the scope of this Convention, including by referring to general and specialist support services ....","3.Parties shall ensure that measures taken pursuant to this chapter shall:","\u2013be based on a gendered understanding of violence against women and domestic violence and shall focus on the human rights and safety of the victim;","\u2013be based on an integrated approach which takes into account the relationship between victims, perpetrators, children and their wider social environment;","\u2013aim at avoiding secondary victimisation;","\u2013aim at the empowerment and economic independence of women victims of violence ...\u201d"],"149":["1. The applicant, Mr Sre\u010dko Den\u017ei\u010d, is a Slovenian national who was born in 1969 and lives in Bre\u017eice. He was represented before the Court by Mr D. Medved, a lawyer practising in Kr\u0161ko.","2. The Slovenian Government (\u201cthe Government\u201d) were represented by their Agent, Ms A. Grum, State Attorney.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. The applicant is the father of X, who was born on 18 October 1990.","5. On 15 October 1998 the K. District Court ended the marriage between the applicant and X \u2019 s mother and entrusted her with custody of X. The court also gave a judgment determining how much child maintenance the applicant was to pay for X each month (hereinafter \u201cthe 1998 judgment\u201d).","6. Following an application by the applicant for the amount of maintenance to be reduced, by a final and enforceable judgment of 21 September 2005, the L. Higher Court reduced the amount which he was obliged to pay for X \u2019 s maintenance (hereinafter \u201cthe 2005 judgment\u201d).","7. Upon reaching the age of majority, X started receiving a disability benefit and an assistance and attendance allowance, in accordance with the Social Care of Mentally and Physically Disabled Persons Act (hereinafter \u201cthe Care Act\u201d). Her parents \u2019 parental rights were extended beyond her reaching the age of majority, owing to her severe disability.","1. Enforcement proceedings","8. On 19 March 2014 X, represented by her mother as her statutory representative, applied for enforcement of the 2005 judgment (see paragraph 6 above) and requested the payment of due and unpaid maintenance instalments for the period from September 2009 to March 2014 \u2013 a total amount of 6,641.47 euros (EUR) plus statutory default interest.","9. On 16 April 2014 the L. Local Court allowed the enforcement application and issued an enforcement order against the applicant.","10. The applicant objected to the enforcement order, arguing that X had reached the age of majority in 2008 and had been receiving social benefits under the Care Act (see paragraph 7 above). He argued that the Constitutional Court \u2019 s decision of 13 December 2007 (see paragraph 17 below) had not been implemented in relation to its instruction that the legislature should remedy the Care Act \u2019 s non-compliance with the Constitution, and that he should not bear the burden of the State \u2019 s inactivity. He maintained that he had believed that his maintenance obligation had ceased, as had the welfare authorities, which had not informed him of annual adjustments to the amount of maintenance.","11. On 11 August 2014 the court dismissed the applicant \u2019 s objection, holding that his maintenance obligation as determined by the 1998 judgment and the 2005 judgment (see paragraphs 5 and 6 above) had not ceased. It could only be cancelled in the same way that it had been established, this is by way of a final and enforceable judgment adopted in contentious proceedings. Moreover, the fact that the welfare authorities had not sent him information on adjustments had not had any effect on his maintenance obligation. The applicant appealed.","12. On 24 September 2014 the Higher Court granted the applicant \u2019 s appeal in so far as it related to some default statutory interest, but dismissed the rest of the appeal, emphasising that the judgments which had imposed the maintenance obligation on him had remained in force and had been enforceable during the period at issue.","13. On 15 December 2015 the Constitutional Court refused to accept a constitutional complaint lodged by the applicant for consideration.","2. Contentious proceedings","14. On 17 November 2016 the applicant lodged an action to either cancel his maintenance obligation or, alternatively, reduce the amount of maintenance which he was obliged to pay, arguing that X was receiving social benefits which were sufficient for her subsistence, and that he did not have sufficient means to support her financially. On 16 February 2018 the K. District Court reduced his maintenance obligation. The applicant lodged an appeal. According to the most recent information received from the applicant on 4 July 2018, the proceedings were pending before a higher court.","B. Relevant domestic law and practice","1. Relevant domestic law","15. Until 1 May 2004 the Marriage and Family Relations Act (hereinafter \u201cthe Family Act\u201d) provided that the parents of a disabled adult who did not have sufficient means of subsistence were obliged to support the child according to their means and with assistance from the State (section 123). On 1 May 2004 this maintenance obligation was abolished for the parents of adult disabled children who were not in education after they had reached the age of majority (section 26 of the Act Amending the Family Act).","16. In accordance with section 132 of the Family Act, a court may, at the request of a beneficiary or person subject to an obligation, reduce or cancel maintenance determined by an enforceable instrument if the needs of the beneficiary or the resources of the person subject to an obligation have changed.","2. Decision no. U-I-11\/07 of the Constitutional Court","17. On 13 December 2007 the Constitutional Court found that the Care Act was non-compliant with the Constitution, and it instructed the legislature to remedy this non-compliance within one year. The court noted that in abolishing the maintenance obligation of parents (see paragraph 15 above), the legislature should have provided for a system of social benefits that would cover the basic needs of disabled persons and ensure that they had a standard of living which respected their dignity. By not including in the Care Act mechanisms that would allow the special needs of disabled persons to be taken into account, the legislature had failed to ensure an adequate level of social security for some of them. In view of the vulnerability of the disabled individuals concerned, the court determined that until this unconstitutional legislative lacuna was filled, parents should continue to provide for their disabled adult children in accordance with the Family Act, as in force before the 2004 amendment."],"150":["1. The applicant, Ms Diana Vu\u010dina, is a Croatian national who was born in 1966 and lives in Split. She was represented before the Court by Mr S. \u0160timac, a lawyer practising in Split.","2. The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.","A. The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","1. Background to the case","4. On 3 September 2009 a lifestyle magazine with nationwide distribution, Gloria, published a photograph of the applicant that had been taken during a popular-music concert in Split. The photograph was small in size and depicted the applicant clapping. The caption to the photograph gave the name of A.K. \u2013 the wife of \u017d .K., the then Mayor of Split.","5. The same page contained several other photographs of various celebrities who had attended the concert, and the captions to those photographs indicated their names. There was also a short text in a separate box explaining that the concert had been held and indicating the titles of the songs performed by the different singers.","6. Following the publication of her photograph and the accompanying erroneous indication of her name, on 10 September 2009 the applicant asked Gloria to print a correction. However, she received no reply from the magazine, and nor has the published information been rectified.","2. The applicant \u2019 s civil proceedings","7. On 10 November 2009 the applicant brought a civil action against the publisher of Gloria in the Municipal Court ( Op\u0107inski sud u Splitu; the case was later transferred to Sinj \u2013 \u201cthe Municipal Court\u201d) seeking damages in respect of the erroneous labelling of her photograph. The applicant submitted that she, as a doctor of medicine and a university lecturer, and her real husband, as a university professor, were very active in the social life of Split, and that following the publication of her photograph in Gloria, people had started approaching her, addressing her by the name of the Mayor \u2019 s wife, and taking photographs of her. She argued that it was difficult to express all the unpleasantness that she and her family had suffered as a result of the erroneous labelling of her photograph. She thus argued that personality rights, honour and reputation had been infringed by the publication of the erroneously labelled photograph.","8. In its reply to the civil action, the publisher of the magazine argued that the applicant had not properly sought a correction of the published information as she had not provided any document with a photograph showing that it was her in the published photograph. It also submitted that the photograph had been taken at a public gathering, which was permitted under the law, and that the published information was objectively incapable of causing any prejudice to the applicant.","9. During the proceedings the Municipal Court ordered an expert report on the question of whether the publication of the photograph had caused the applicant emotional distress. It also heard the applicant and a couple who had attended the concert with the applicant and her husband.","10. The latter two witnesses confirmed that they had attended the concert with the applicant and her husband and that the photograph had been taken at the concert. In her oral evidence, the applicant argued that other media had subsequently used the impugned photograph (presenting it as a photograph depicting the Mayor \u2019 s, wife) when referring to different scandals in which the Mayor had been involved. She also stated that different persons had contacted her, making fun of the fact that her photograph had been published within the context of the Mayor \u2019 s marital problems and divorce, and that all of that had caused her and her family great distress.","11. At a hearing on 8 March 2012 a court expert gave evidence indicating that the applicant had indeed suffered stress due to the erroneous labelling of the photograph, in large part on account of the fact that the Mayor was a highly controversial person who was viewed in a negative light by many and that his wife was associated with him in many people \u2019 s minds.","12. On 22 March 2012 the Municipal Court ruled in the applicant \u2019 s favour, ordering the magazine to pay her part of the damages claimed. The Municipal Court did not accept the defendant \u2019 s argument that the applicant had not properly sought a correction of the published information, but it also held that the defendant bore no responsibility for the taking of the photograph, as that had occurred in a public space and at a public gathering. However, the Municipal Court found that, even leaving aside the public perception of the Mayor, the applicant had had every reason to be distressed by the erroneous labelling of the photograph, simply because she was not the Mayor \u2019 s wife. This was even more the case given that the applicant and her husband were university professors who were active in society and who, moreover, had children of school age. The Municipal Court thus found that there had been a breach of the applicant \u2019 s personality rights ( prava osobnosti ), namely her honour and reputation.","13. Both the applicant and the defendant appealed against that judgment before the Split County Court ( \u017dupanijski sud u Splitu \u2013 \u201cthe County Court\u201d). The applicant challenged the amount of the award of compensation for non-pecuniary damage, while the defendant reiterated its previous arguments (see paragraph 8 above). The parties relied on Articles 8 and 10 of the Convention respectively.","14. On 6 December 2012 the County Court upheld the defendant \u2019 s appeal and reversed the first-instance judgment dismissing the applicant \u2019 s civil action. It held in particular that irrespective of the controversies surrounding the Mayor, there were no negative connotations in the applicant being identified as his wife in the photograph published in Gloria. In the relevant part of its judgment, the County Court reasoned as follows:","\u201cThe first-instance court correctly found that the claimant had properly asked the defendant to publish a correction of the impugned information before she brought the civil action ... The first-instance court also correctly found that, in view of the fact that the impugned photograph had been taken in a public place, the claimant had no right to compensation simply owing to the fact that her photograph [had been published] ...","However, the central question in these appeal proceedings is whether the first-instance court correctly granted the civil action ...","...","[P]aragraph 3 [of section 21 of the Media Act] provides that the regulations under the Obligations Act shall be applicable to the establishment of liability for damage, unless otherwise provided by that Act. Section 1046 of the Obligations Act ... provides that non-pecuniary damage may result from an infringement of personality rights and, under section 19(2) of the same Act, the personality rights of physical persons are the right to life, to physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, etc. The latter [provision] does not mean that the court shall award just compensation for every infringement of personality rights. The court shall award [such compensation] only if the gravity of the infringement and the circumstances of the case so warrant, as provided under section 1100(1) of the Obligations Act.","In this case, in the context of the publication of the article and photographs in the magazine Gloria, next to the claimant \u2019 s photograph (and this fact is beyond doubt at this stage of the proceedings) the defendant published erroneous information by indicating instead of the claimant \u2019 s name the name of another person, namely A.K. [the Mayor \u2019 s wife]. This court considers that that erroneous information could have breached the claimant \u2019 s honour and reputation, and thus allowed her to claim damages for the breach of her personality rights, only if the name of the other person was presented in a negative context. A.K. is not a person who is linked to any affairs, crime or unlawful and\/or immoral conduct, and is not perceived by the public as a negative person in any way ... These are well-known facts, which are not brought into question by the mere fact that she was the wife of the current Mayor of Split, \u017d.K. It is also legally irrelevant that the information in question was published \u2018 at a time when there were rumours in Split about an extra-marital relationship of \u017d.K. with a twenty-four-year-old woman, F.H. \u2019, as stated in the claimant \u2019 s appeal, because such \u2018 rumours \u2019 do not diminish the moral quality of A.K.","In view of the above, this court finds, contrary to the claimant \u2019 s arguments, that the published information was incapable of giving rise to the public denigration of the claimant. This is because those who know the claimant, and who recognised her in the photograph, obviously knew that she was not A.K., and the very indication of A.K. \u2019 s name next to the claimant \u2019 s photograph does not give rise to any negative connotations concerning the claimant. Thus, objectively, the erroneously published information was incapable of breaching the claimant \u2019 s personality rights. As the circumstances of the case do not warrant an award of damages, the civil claim for damages in respect of the breach of [the claimant \u2019 s] personality rights is unfounded.\u201d","15. The applicant then lodged a constitutional complaint against this judgment before the Constitutional Court ( Ustavni sud Republike Hrvatske ), arguing that the County Court had failed, in sanctioning the publication of clearly erroneous information related to her image in Gloria, to secure the protection of her personality rights under Article 8 of the Convention.","16. On 6 June 2013 the Constitutional Court dismissed the applicant \u2019 s constitutional complaint as unfounded, endorsing the reasoning of the Split County Court.","3. Other relevant facts","17. Meanwhile, an Internet portal used the photograph from Gloria (again erroneously identifying the applicant as the Mayor \u2019 s wife) to accompany an article that discussed the details of an extra-marital affair in which the Mayor had allegedly engaged, as well as certain alleged irregularities concerning his business dealings (with which his wife was also associated).","18. In this respect the applicant secured from the Internet portal a correction of that information, and damages under a judgment of the Municipal Court of 12 May 2011, which was upheld on appeal by the County Court on 11 July 2013.","B. Relevant domestic law","19. The relevant provision of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56\/1990, with further amendments) reads as follows:","Article 35","\u201cEveryone has the right to respect for and legal protection of his or her private ... life, reputation and honour.\u201d","20. The Media Act ( Zakon o medijima, Official Gazette no. 59\/04), in its relevant parts, provides as follows:","Protection of privacy","Section 7","\u201c(1) Everyone has the right to the protection of his or her privacy, dignity, reputation and honour.\u201d","Media principles and duties","Section 16","\u201c(1) Media outlets shall respect citizens \u2019 right to privacy, dignity, reputation and honour ...\u201d","Liability of [publishers] for damage","Section 21","\u201c(1) A publisher who by publishing information in the media causes damage to another person shall be obliged to pay compensation, except in cases stipulated by this Act.","(2) Damage means the reduction of someone \u2019 s property or the prevention of an increase thereof (pecuniary damage) and causing physical or mental pain, as well as fear (non-pecuniary damage), to another person.","(3) The regulations under the Obligations Act shall be applicable to the establishment of liability for damage, unless otherwise provided by this Act.","(4) A publisher shall not be liable for damage if the information which caused the damage concerns:","...","- a photograph of the affected party taken in public ...","...","(6) The existence of liability must be proved by the claimant, while the existence of prerequisites for the release from liability for damage referred to in paragraph 4 of this Section must be proved by the defendant.\u201d","Section 22","\u201c(1) Non-pecuniary damage shall be compensated for, as a rule, by publishing a correction of the information [in question], together with an apology from the publisher and by the payment of compensation, pursuant to the general regulations of the Obligations Act.","(2) A person who previously requested the publisher that a correction of the disputable information be published (or an apology by the publisher if a correction is not possible) shall have the right to lodge a claim for compensation for non-pecuniary damage, in compliance with the general regulations of the Obligations Act.\u201d","Section 23","\u201cA civil action for damages may only be brought within three months of the day on which [the person concerned] learned of the publication of the information that caused the damage.\u201d","21. The relevant parts of the Civil Obligations Act ( Zakon o obveznim odnosima, Official Gazette nos. 35\/2005, with further amendments), read as follows:","Rights of personality","Section 19","\u201c(1) All natural persons or legal entities are entitled to the protection of their rights of personality [prava osobnosti] under the conditions provided by law.","(2) Rights of personality within the meaning of this Act are the right to life, to physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, etc.\u201d","Section 1046","\u201cDamage may result from ... an infringement of rights of personality (non-pecuniary damage).\u201d","Section 1100","\u201c(1) Where a court finds it justifiable, on account of the seriousness of an infringement of personality rights and the circumstances of a particular case, it shall award compensation for non-pecuniary damage, irrespective of compensation for pecuniary damage or where no such damage exists.","(2) When deciding on the amount [to be awarded in] just pecuniary compensation, the court shall take into account the degree and duration of the physical and mental pain and fear caused by the breach, the purpose of the compensation, and the fact that it should not favour aspirations that are incompatible with its nature and social purpose.\u201d","Section 1099","\u201cIn case of a breach of the personality rights, the injured party may ask that, on the expenses of the respondent, the judgment or the correction [of the published information] ... is published.\u201d"],"151":["6.The first applicant, Mr K.O., was born in 1974 and the second applicant, Ms V.M., was born in 1986.","A.Emergency decision","7.On 1, 10 and 22 December 2014 the child-welfare services received notifications of concern (bekymringsmeldinger) about A, an as yet unborn child. Two of the notifications came from the police and concerned suspicions that the first applicant had physically mistreated the second applicant. The third notification came from the preventive-mental-health services (forebyggende psykisk helsetjeneste) and contained information about the second applicant\u2019s history of anxiety, depression and drug use.","8.In addition, the child-welfare services received three notifications from private parties, two of which were anonymous. These expressed serious concerns as to how the second applicant was being controlled and manipulated by the first applicant. According to the notifications, the first applicant had forced the second applicant to use amphetamines, and he had cut up her clothes and put her shoes in water in order to hinder her from leaving their home. Moreover, the second applicant had been excluded from contact with her family and network, either as she had been manipulated into distancing herself from them, or because they had been threatened and frightened by the first applicant. According to the notifications, the second applicant had tried to leave the first applicant several times, but had always returned.","9.A, a girl, was born on 13 January 2015. On the same day, the child-welfare services received an anonymous notification of concern which stated that the first applicant was violent and that he had pressured the second applicant into taking drugs. On 14 January 2015 the second applicant\u2019s grandmother sent a notification of concern where she stated that the first applicant was manipulative, controlling and that he had been selling amphetamines. On 15 January 2015 the child-welfare services received information from other public authorities about the first applicant\u2019s criminal convictions and the second applicant\u2019s mental-health problems and her history of drug abuse. The same day the child-welfare services arranged for the second applicant and the child to stay at a family centre, with the second applicant\u2019s consent. The first applicant was informed of the decision, but not of their whereabouts, due to the concerns that had been expressed in the notifications.","10.On 22 January 2015 the child-welfare services considered that the second applicant had withdrawn her consent to stay at the family centre. It therefore adopted an emergency decision under section 4-6 of the Child Welfare Act (see paragraph 43 below) to place A in public care; to grant the applicants contact rights of one hour every second week, under supervision; and not to inform the applicants of A\u2019s address. The child-welfare services found that there was a risk that A would suffer considerable harm if she were to stay with the applicants. Reference was made to the notifications concerning mental-health problems, drug abuse and suspicions of violence, and to the fact that the applicants had not agreed to cooperate with the child-welfare services prior to A\u2019s birth.","11.The applicants appealed against the emergency decision to the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker). On 2 February 2015 the Board upheld the decision. It noted the notifications received by the child-welfare services prior to A\u2019s birth; that the applicants had refused to cooperate with the child-welfare services before the birth; and that the second applicant had withdrawn her consent to stay at the family centre.","12.The applicants challenged the Board\u2019s decision before the City Court, which on 26 March 2015 upheld the placement of A in emergency public care. It held that there was a considerable risk that A, a three-and-a-half-month-old infant, would suffer serious harm if she were returned to the applicants.","13.The City Court attached considerable weight to the high level of conflict in the family, which could be harmful for a small child. The applicants had acknowledged that they had argued at times, and had stated that these arguments had often begun as disagreements over trivial matters which had escalated. They had not contested that the second applicant had left the family home several times during the pregnancy and that she had, on one occasion, been thrown out by the first applicant after an argument. The police had been called to their home several times during the pregnancy, both by neighbours and by the second applicant, after loud disagreements. The applicants had stated that they would adapt to the new situation with an infant and that they would not argue in the presence of the child. In the City Court\u2019s opinion there was a high risk of continued strife due to the high level of conflict that had existed between the applicants over time \u2013 both before and during the pregnancy \u2013 and on account of the added stresses that would result from the demanding task of taking care of a small child.","14.The City Court also found that the second applicant lacked proper impulse control and the ability to handle conflicts in an adequate manner. In 2014 she had pretended to be suicidal, which had resulted in her being admitted to a psychiatric institution. Her general practitioner (fastlege) had testified that she had not considered the second applicant to be suicidal and that the compulsory placement had been an error. The City Court noted that the second applicant\u2019s mental health had not been examined, but that it was a matter of grave concern given its potential effect on her ability to provide adequate care.","15.Based on an overall assessment, the City Court found that there was a qualified risk that A would suffer material harm if the emergency placement order were lifted. Less restrictive assistance measures could not adequately safeguard her against the dangers she would be exposed to if she were returned to the applicants. In reaching this conclusion the City Court emphasised the complexity of the family\u2019s problems and the fact that previous attempts to help the applicants deal with their various health and drug related problems had been unsuccessful. It therefore concluded that the applicants would need extensive and long-lasting assistance before A could be returned.","16.The applicants appealed against the City Court\u2019s judgment on the emergency decision, but later withdrew the appeal, as the child-welfare services had instigated proceedings in order to obtain a care order (see below).","B.Placement decision","1.County Social Welfare Board","17.Prior to the City Court\u2019s judgment on the emergency care order, on 6March 2015 the child-welfare services applied to the County Social Welfare Board for a decision to place A in public care under section 4-12 of the Child Welfare Act (see paragraph 43 below). The Board, composed of a chairperson qualified to act as a professional judge, two psychologists and two laypeople, held oral hearings for two days and heard testimony from eleven witnesses. The applicants were present and were represented by counsel.","18.On 20 May 2015 the Board decided that A should be placed in a foster home and that the applicants should not be informed of her whereabouts, in accordance with section 4-19 of the Child Welfare Act (see paragraph 43 below), due to concerns that they would try to find A, and even try to kidnap her. The Board decided not to deprive the applicants of their parental responsibilities in respect of A.","19.The Board found that the applicants, individually and together, had several traits which gave rise to concern as to their ability to provide adequate care for A. The first applicant had been diagnosed with post-traumatic stress disorder (PTSD) and attention-deficit disorder (ADHD) and had an extensive criminal history, including convictions for battery and for issuing threats. The second applicant had a long and extensive history of psychiatric illness and drug abuse. The police had been called to the applicants\u2019 house several times during 2013 and 2014 on account of domestic disputes. The second applicant had gone to a crisis centre twice during the pregnancy.","20.While the first applicant had two cousins and an aunt living nearby, the Board considered that this support network would not be sufficient to ensure that the child would receive adequate care. The Board held that assistance measures, for example counselling, would not be sufficient to ensure adequate conditions for the child. Neither of the applicants had, over time, taken advantage of offers to assist them with their mental-health issues or their substance abuse. The Board therefore held that it would be in the best interests of the child to be placed in a foster home.","21.As to the question of contact rights, the Board noted that no attachment had been established between A and the applicants, as she had been placed in public care shortly after birth. The placement in foster care would most likely be long-term. The purpose of visits with the applicants would therefore be for the applicants and A to get to know each other. While it would be important for A to have order and stability in the foster home, the Board found that it was not necessary to restrict the contact rights to the degree proposed by the child-welfare services \u2013 one hour, once a year. Instead it granted contact rights of one hour, four times a year. The child-welfare services would be allowed to supervise the visits.","2.City Court","22.The applicants challenged the County Social Welfare Board\u2019s decision before the City Court. They asked for the decision to place A in public care to be overturned or, if the City Court upheld the placement, for their contact rights to be increased. The applicants also requested a suspension of the Board\u2019s decision as far as the limited contact rights were concerned. The City Court refused the request for a suspension on 6July2015.","23.The City Court, composed of one professional judge, one lay person and one psychologist, heard testimony from the applicants and ten other witnesses, including a court\u2011appointed expert, also a psychologist, from 24to 26 November 2015.","24.In its judgment of 17 December 2015, the City Court upheld the decision to place A in public care, but increased the applicants\u2019 contact rights to two hours, six times a year. The City Court found that while the applicants were loving parents who wanted the best for A, the evidence had revealed numerous risk factors relating to their ability to provide adequate care.","25.The City Court noted that the first applicant had previously been convicted of serious violent crimes of an antisocial character (alvorlige voldsforbrytelser, av asosial karakter). He had been convicted of assault at least six times and had in total been sentenced to fifteen years\u2019 imprisonment. In 2005 a court of first instance had ordered his preventive detention (forvaring), but this had, upon appeal, been altered to a prison sentence. Most of his criminal acts had been carried out while he had been a member of a motorcycle club, partly as a result of his role as a debt collector for the club. Acting in this capacity he had, inter alia, administered beatings and issued threats. According to the police he had been listed 100 times in the register of criminal complaints (anmeldelsesregisteret). Some of the complaints against him were still pending. The second applicant\u2019s mother had for example reported him to the police for threatening her.","26.In the City Court\u2019s view, the first applicant\u2019s history showed that he had exhibited antisocial behaviour over a considerable period of time. Moreover, he appeared to have little confidence in, or patience with, the public authorities, including the child-welfare services. The manager of the municipal child-welfare service had obtained a restraining order against the first applicant due to the frightening or threatening messages he had posted on social media. In the City Court\u2019s opinion this demonstrated that the first applicant had a worrying inability to learn from his past actions, and it therefore questioned to what extent he would be able to change his behaviour in the future. During the court proceedings he had acted aggressively and impulsively towards the lawyer representing the child-welfare services and had been unable to control himself in a normal manner.","27.The City Court did take note of positive aspects of the first applicant\u2019s character that had been emphasised by his psychologist and by the court-appointed expert. However, the psychologist had also noted that the first applicant\u2019s state of health had been complex, as he had been diagnosed with ADHD and had showed symptoms of PTSD, and had expressed concern on account of the first applicant \u201cself-medicating\u201d with cannabis on a daily basis.","28.The expert had not found any indications that the second applicant had been suffering from any serious mental illness. The City Court also noted that it was positive that she had been able to refrain from using drugs for a longer period of time. However, it also considered that she was vulnerable. She had broken off contact with her family and appeared to be dependent on the first applicant and his network. Furthermore, the City Court considered her to have several unstable character traits which could affect her ability to provide adequate care, including, inter alia, her long history of psychiatric problems, her inability to finish the treatment that had been offered to her, and her impulsivity.","29.Several witnesses, including representatives from the police, had stated that they had suspected that the first applicant had physically mistreated the second applicant. The City Court found it difficult to establish whether the second applicant had in fact been subjected to violence or whether she had exaggerated her fear of the first applicant to friends and the authorities to gain sympathy and attention. It stated that the most plausible conclusion lay somewhere in between.","30.The City Court found that A was a normally functioning child, whose development was adequate for her age, but noted that she had already experienced two separations from her caregivers: the first when she was taken from her mother to the emergency care home; and a second time when she was moved to the foster home. The City Court held that while making her move again would come at a psychological cost, it would not be impossible to do so if her new caregivers could provide her with optimal care.","31.The City Court agreed with the applicants that there were grounds for criticising the child-welfare services\u2019 handling of the case in the period leading up to the emergency care decision. The child-welfare services should have gathered more information about the parents before concluding that a stay at the family centre was necessary. The City Court found that it was unclear whether the second applicant had in fact retracted her consent to stay at the centre. However, it held that it was understandable that the child-welfare services had found it necessary to take steps in response to the notifications of concern that they had received. The fact that there were grounds for criticising some of their decisions did not entail that it would be in the child\u2019s best interests to end her public care at the time of the City Court\u2019s decision.","32.The City Court concluded that the applicants, considered both individually and together, presented a number of risk factors which made it inadvisable to return A to them. The first applicant\u2019s daily drug use was a factor of great concern. Both the psychologist and the expert had noted that the process of stabilising and rehabilitating the first applicant would take several months and potentially more than a year. The applicants had been unable to make use of the assistance measures that had previously been offered to them to help them deal with their psychological issues and drug dependency. Their history of domestic disputes, which had continued throughout the pregnancy, also illustrated that their relationship was vulnerable. Between 2013 and 2014 the police had had to intervene at the couple\u2019s home seven times on account of domestic disturbances (husbr\u00e5k eller lignende).","33.The court-appointed expert and the second applicant\u2019s general practitioner had spoken in favour of returning A to the applicants. The City Court however considered that they had not taken sufficient account of the above-mentioned risk factors, particularly in the light of the decisive weight to be given to the best interests of the child.","34. The City Court found that assistance measures would not be adequate to create appropriate conditions for A if she were returned to the applicants, as the level of assistance that would be required would be too extensive to be practically feasible. Furthermore, the applicants\u2019 difficulties with cooperating with the authorities were a factor to be considered in this regard. The City Court observed, inter alia, that on account of the first applicant\u2019s behaviour the police had advised the child-welfare services not to visit the applicants\u2019 home without the police being present.","35.As to the question of contact rights, the City Court noted that an extensive (omfattende) contact scheme should only be implemented where the placement in public care was considered to be short-term, so as to facilitate an expedient return of the child. In the instant case the City Court considered that the placement would be long-term, and it would therefore not be in the child\u2019s best interests for the applicants to be given extensive contact rights. However, because the applicants\u2019 interactions with A during visits had been described in positive terms, it found that their contact rights should be increased to two hours, six times a year. The child-welfare services were allowed to supervise the visits.","3.Leave-to-appeal proceedings","36.The applicants appealed against the City Court\u2019s judgment. On 1March 2016 the High Court (lagmannsrett) refused leave to appeal, noting that the case had been thoroughly examined by the City Court and that the judgment had been adequately reasoned. No new evidence had been submitted which could merit a re-examination of the case.","37.The applicants appealed against the High Court\u2019s decision. On 4May 2016 the Supreme Court\u2019s Appeals Leave Committee (H\u00f8yesteretts ankeutvalg) refused the applicants leave to appeal, unanimously finding that their appeal had no prospects of success.","C.Subsequent developments","38.While their application to the Court was still pending, the applicants, with reference to section 4-21 of the Child Welfare Act (see paragraph 43 below), asked the County Social Welfare Board to lift the care order. The municipality supported the applicants\u2019 claim. On 16 February 2018 the Board declined the request.","39.The applicants appealed against the Board\u2019s decision to the City Court. The municipality upheld its assessment that A should be returned to her parents, particularly on account of the applicants having agreed to assistance measures. Both the applicants and the municipality consented to the City Court\u2019s deciding the matter without an oral hearing.","40.On 19 March 2018 the City Court allowed the joint claim to lift the care order. It noted that two expert witnesses who had appeared before the Board had evaluated the applicants\u2019 care capacity as being stable and good, and that the applicants had consented to the implementation of assistance measures. The City Court accordingly saw no reason to depart from the municipality\u2019s assessment that the care order should be lifted.","41.In his letter to the Court 1 June 2018, the applicants\u2019 representative stated that A had been returned to her parents in accordance with the City Court\u2019s judgment."],"152":["5.The applicant was born in 1936 and died on 12 January 2016. Until his death he lived in Odesa.","6.On the morning of 12September2002 the applicant was driving to work in a white Toyota car. As he was approaching a pedestrian crossing, a pedestrian, G., started to cross the street. As the applicant subsequently explained in the course of his trial, G. suddenly fell into the applicant\u2019s traffic lane \u2013 a short distance away from the applicant\u2019s car \u2013 after an oncoming red vehicle had gone past at very high speed. According to the applicant, G. could have been hit by that oncoming vehicle (which has never been identified), or he could have slipped while trying to avoid colliding with that vehicle, or he could have fallen for some other reason. The subsequent investigation and proceedings before the domestic courts, however, were to conclude that G. had been hit by the applicant\u2019s car.","7.Immediately after the incident, the applicant stopped his car and placed G. in the rear seat. It is not clear from the documents submitted whether the applicant or a passer-by called an ambulance. After the ambulance arrived and took G. to hospital, the applicant left without waiting for the police.","8.G. died in Illichivsk Hospital later the same day from a number of cerebral, chest and upper-limb injuries.","9.The applicant came to the hospital on that day to enquire about G.\u2019s health. A police officer, T., who was there for the investigation purposes, asked the applicant about the reason for his visit. As T. later stated, the applicant explained that he had accidentally hit G. with his car. According to the officer, the applicant agreed to show him the site of the accident and to explain how it had happened. According to the applicant\u2019s submissions during his subsequent trial, he came to the hospital because he had helped G., and he was therefore not indifferent to the latter\u2019s fate.","10.Immediately after, the police took the applicant to the site of the accident, where they drew up a scene inspection report. No traces of the accident were identified. Citing the absence of his signature on that report, the applicant later in the domestic proceedings submitted that he had neither shown the site to the police nor otherwise participated in that investigative measure.","11.On the same day, 12 September 2002, the applicant signed an \u201cexplanation\u201d addressed to the Illichivsk police, according to which G. had unexpectedly emerged from behind a nearby moving vehicle as the applicant had been slowly driving his car through the pedestrian crossing and had suddenly fallen onto the bonnet of the applicant\u2019s car. From there\u2013when the applicant had hit the brakes \u2013 G. had fallen onto the road. The \u201cexplanation\u201d contained a note to the effect that the applicant had been familiarised with the contents of Article 63 of the Constitution (providing the right not to incriminate oneself \u2013 see paragraph 44 below).","12.According to the applicant\u2019s submissions to the Court, he had not had his glasses with him and had signed the \u201cexplanation\u201d without reading it. He denied having stated what was written there. The applicant also denied that his right not to incriminate himself had been explained to him. He pointed out that the note regarding the constitutional provision was written in a different ink, which proved, according to him, that it had been added later.","13.On 20September 2002 the Illichivsk police instituted criminal proceedings against the applicant on suspicion of his having breached the traffic regulations, resulting in a fatal accident (see paragraph 45 below).","14.On an unspecified date K., a licensed advocate, was admitted to the proceedings as the applicant\u2019s defence lawyer.","15.On 11 December 2002 formal charges were brought against the applicant and his status changed from that of suspect to that of accused. As a preventive measure pending trial he was placed under an obligation not to leave the town.","16.According to the applicant, on 11 December 2002, during his questioning in the presence of his lawyer, he retracted the \u201cexplanation\u201d dated 12 September 2002 (see paragraph 11 above), stating that he had given it under psychological pressure.","17.On an unspecified date the case was sent for examination to the Illichivsk Town Court (\u201cthe Illichivsk Court\u201d).","18.On 31 July 2003 the Illichivsk Court remitted the case for additional pre-trial investigation.","19.On 15 October 2003 the case file was again sent to the Illichivsk Court.","20.The Illichivsk Court adjourned its hearings several times owing to the absence of certain witnesses.","21.On 19 April 2004 it ordered a comprehensive forensic medical examination and an expert technical examination, as well as a fresh reconstruction of the events in question.","22.On 24 February 2005 some of the above-mentioned examinations were carried out.","23.On 30 March 2005 the term of office of V. \u2013 the judge who was dealing with the case \u2013 expired.","24.On 29 November 2005 a new judge, B., started examining the case.","25.On 4 July 2006 B. ordered a fresh reconstruction of the events. Apparently, the previous judicial order to that effect, of 19 April 2004 (see paragraph 21 above) had not been implemented.","26.On 10 July 2006 the above-mentioned investigative measure was carried out.","27.During the trial, the applicant denied having breached the traffic regulations or having hit G. with his car. He maintained his account of the events, as outlined in paragraph 6 above. The applicant submitted that there was no expert evidence or other evidence in the case file proving that his car had come into contact with G.\u2019s body.","28.On 13December 2006 the Illichivsk Court convicted the applicant as charged. It sentenced him to four years\u2019 imprisonment and divested him of his driver\u2019s licence for two years. However, the court issued an amnesty under the Amnesty Act. Accordingly, the applicant did not have to serve his sentence.","29.In convicting the applicant, the Illichivsk Court relied, in particular, on the following evidence. The victim\u2019s widow stated that the applicant had paid her 1,000 Ukrainian hryvnias (UAH) after G.\u2019s death (which at the time was the equivalent of about 180 euros (EUR)) and that he had offered her UAH30,000 (about EUR 5,400) in return for her not pressing criminal charges against him. A witness, V., who had been three metres away from the site of the accident, stated that he had seen a foreign-made car hit a man crossing the street at the pedestrian crossing in question. V. stated that the driver, whom he identified as the applicant, had placed the victim in the rear seat of his car; an ambulance had subsequently arrived and taken the latter to hospital. Another witness, R., submitted that he had been walking near the site of accident when, having heard a noise, he had turned his head and had seen the applicant\u2019s car on a pedestrian crossing and G. in front of the car. The applicant had got out of his car and had remarked that he had been driving slowly. Another witness, Ga., stated that she had been crossing the street at the same time and at the same pedestrian crossing as G., but in the opposite direction. After G. had passed her by, she had heard a car braking. She had turned around and had seen G. falling. The applicant\u2019s car had been there. The applicant had placed G. on the rear seat of his car saying: \u201cI am sorry, I did not mean to\u201d. When Ga. had approached the applicant, he had said to her that he would take G. to hospital and that there was no point in calling the police. Ga. furthermore observed that, after the ambulance had taken G. away, the applicant had left the scene, even though the people present had told him that he should wait for the police.","30.The Illichivsk Court also examined the statements of two other witnesses, who had given a different version of the events in question. N. (whom the applicant\u2019s son had identified after having posted an appeal for witnesses in a local newspaper) was questioned for the first time before the court. He submitted that he had been driving in the direction of the intersection in question and had seen an oncoming red car driving at high speed. He had then seen a pedestrian falling and the applicant leaving his car and helping the victim. Furthermore, another witness, P., submitted that she had been about twenty metres away when she had seen G. falling without having been hit by any car. The applicant\u2019s car had approached and the applicant had started to help the victim. Given that the statements of the above-mentioned two witnesses ran contrary to all the other evidence, the Illichivsk Court did not consider them credible.","31.The court also referred to the statement of T., the police officer, who had submitted that on 12September2002 the applicant had approached him in the hospital and had volunteered a confession that he had hit G. with his car (see paragraph 9 above). The court held that \u201can explanation could not be regarded as a source of evidence\u201d and therefore excluded from the body of evidence the \u201cexplanation\u201d signed by the applicant in the police station (see paragraph 11 above). It found, however, T.\u2019s statement plausible having assessed it in the light of the assertions made by the applicant in the above-mentioned document and all the other available information. Two other police officers submitted that the applicant had participated in the scene inspection of 12 September 2002. They could not explain, however, the absence of his signature on that report (see paragraph10 above).","32.As regards the results of the various forensic examinations \u2013 in particular, the examinations of the victim\u2019s body and of the applicant\u2019s car \u2013 the reports of those examinations were not conclusive as to whether G. had indeed been hit by the applicant\u2019s car.","33.On 28 December 2006 K., the applicant\u2019s lawyer, appealed on the applicant\u2019s behalf. In accordance with the applicable rules of criminal procedure, he lodged that appeal through the Illichivsk Court. Referring to the contradictions in the witness evidence, he submitted that the verdict should be quashed and the case remitted for additional pre-trial investigation.","34.On 14 February 2007 the Illichivsk Court ruled that the lawyer\u2019s appeal should be rejected without examination. On 29 January 2008 the Odesa Regional Court of Appeal (\u201cthe Court of Appeal\u201d), however, quashed that ruling.","35.On 12 May 2008 the applicant modified the appeal lodged by his lawyer. He reiterated his plea of not guilty and submitted that his conviction had not been based on any conclusive evidence. The applicant argued, in particular, that nobody had actually witnessed the accident itself. As regards the statement of V. (see paragraph 29 above), the applicant observed that that witness had initially submitted that he had first heard a noise and had then seen G. falling. Accordingly, in the applicant\u2019s opinion, V.\u2019s statement in court that he had witnessed the accident had been untruthful. In so far as the submissions of G.\u2019s widow were concerned, the applicant observed that they had not been confirmed by any evidence. The applicant also denied having confessed to having hit G. with his car and having participated in the inspection of the scene (see paragraphs 9-12 above). The applicant submitted that the \u201cexplanation\u201d signed by him on 12September 2002 (see paragraph 11 above) had no legal standing and that its contents thus constituted inadmissible evidence, given that: firstly, he had signed it without reading it as he had left his glasses at home, and, secondly, the paragraph asserting that his rights under Article 63 of the Constitution had been explained to him had been added later (see paragraph 12 above). The applicant accordingly insisted that the above-mentioned document should not be taken to confirm the truthfulness of the police officer\u2019s statements. Lastly, the applicant asked the appellate court to disregard his lawyer\u2019s request for the case to be remitted for additional investigation. Instead, he argued that the charges against him should be dropped for lack of evidence.","36.On the same day, 12 May 2008, the applicant notified the Court of Appeal that he had lost contact with his advocate, K., and asked it to admit to the proceedings in his stead two other lawyers, I. and P., who did not, however, have an advocate license.","37.On 26August 2008 the Court of Appeal conducted a hearing at which the applicant reiterated his request for I. and P., who were present in the courtroom, to be admitted as his defence counsel. His request was refused.","38.On the same date the Court of Appeal upheld the judgment of the first-instance court, having found that it had assessed all the evidence in a correct and objective manner.","39.On 3September 2008 the applicant, I. and P. complained to the President of the Court of Appeal that the judicial panel that had examined the applicant\u2019s case had arbitrarily denied him the right to be legally represented during the appeal hearing.","40.On 11September 2008 the Deputy President of the Court of Appeal gave a written response to that complaint, noting that the panel had acted in accordance with Article44 of the Code of Criminal Procedure and with Resolution no. 8 of the Plenary Supreme Court of Ukraine of 24 October 2003 on the application of legislation aimed at ensuring the right to mount a defence in criminal proceedings (see the reference in paragraph 46 below). In particular, under that Resolution, legal practitioners who, like I. and P., had no advocate\u2019s licence could not at the material time be admitted as defence counsel in criminal proceedings, as no statute had yet been enacted setting out the relevant admission criteria.","41.On 26September 2008 the applicant lodged a cassation appeal reiterating his plea of not guilty and other previous arguments. In addition, he complained that by refusing to admit I. and P. to the proceedings as his defence counsel, the Court of Appeal had arbitrarily denied him his right to legal assistance.","42.On 5January 2009 the Supreme Court dismissed the applicant\u2019s cassation appeal. It noted that the arguments raised by him  were essentially the same as those properly dismissed by the Court of Appeal in the ordinary appeal proceedings.","43.On 22 December 2016 the Government informed the Court that the case file concerning the criminal proceedings against the applicant had been destroyed owing to the expiry of its statutory storage period. The Government specified that they only had in their possession the judgment of the Illichivsk Court of 13December 2006 (see paragraphs28\u201132 above) and the ruling of the Court of Appeal of 26August 2008 (see paragraph 38 above). They therefore noted that their observations were based on the documents produced by the applicant and the statement of facts prepared by the Court."],"153":["6.The applicant was born in 1968 and moved to Norway in 1988.In December 2009 she gave birth to X, a boy, following artificial insemination. X has no registered father and the applicant has sole parental responsibility for him. At birth the baby was described as dysmature.","7.From April 2010, when X was a little under four months old, child welfare services received a number of notifications of concern (bekymringsmeldinger) from health visitors at the municipal health clinic (helsestasjon) and the applicant\u2019s family, concerning, inter alia, lack of interaction between the applicant and X. Based on their enquiries, and after attempting a number of assistance and guidance measures, X was ultimately placed in an emergency foster home on 27 March 2012.","8.In a decision of 18 September 2012 by the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker), X was placed in foster care. The Board assumed that the placement would be long-term (plasseringen ... antas \u00e5 bli langvarig). This entailed to the Board that the purpose of contact sessions was for X to know his roots (ha kjennskap til sitt opphav), not to maintain an attachment to the applicant. In addition, X was particularly vulnerable and had had negative reactions to contact with the applicant. For essentially those reasons, the applicant\u2019s contact rights were set at two hours twice a year, under supervision.","9.The care order was unanimously confirmed by the City Court (tingrett) on 25 February 2013. The City Court found that there were pervasive and extensive deficiencies in the applicant\u2019s ability to provide care, and that for a long time X had been subjected to extensive and serious neglect in respect of both the physical and emotional care which he received. It stated that it agreed with the municipal child welfare services that one should aim for a long-term placement in care (det b\u00f8r tas sikte p\u00e5 en langvarig omsorgsovertakelse), but that it could not at that time say whether a full adoption would be better in the long-term. On the issue of contact rights, the City Court stated, inter alia, that regard had to be had to the long-term nature of the placement in care, including that return of X to the applicant\u2019s care was not an aim at the time (tilbakef\u00f8ring [er] per i dag ikke ... en m\u00e5lsetning). The purpose of contact would therefore be for X to maintain his knowledge of his biological mother (opprettholde sitt kjennskap til sin biologiske mor). In conclusion, the applicant was granted the right to have contact with X \u2013 under the supervision of the child welfare services \u2013 for one hour twice a year.","10.In the spring of 2014 the applicant demanded that the foster care placement be terminated, or, in the alternative, that she be granted extended contact rights.","11.On 5 November 2014 the County Social Welfare Board, composed of one lawyer qualified to act as a professional judge, one psychologist and one lay person, rejected the applicant\u2019s request, following an oral hearing held over two days where eleven witnesses were heard. The applicant was also refused contact rights, and it was decided that she should not be entitled to have information about X\u2019s whereabouts.","12.On 21 November 2014 the applicant brought a case before the City Court, which was composed of one professional judge, one expert (a psychologist) and one lay person. The court heard the case on 2 and 3March 2015. The applicant attended the hearing and gave testimony. Fourteen witnesses were heard, including the applicant\u2019s general practitioner (GP), her psychiatrist, a psychologist who had counselled her, and two psychologists whom she had engaged as private experts in the case. Prior to the hearing, on 30 January and 9 February 2015 respectively the City Court had decided that it was not necessary to appoint its own expert or facilitate the applicant\u2019s two privately engaged experts\u2019 observations of the applicant and X together. Both decisions were in line with the municipality\u2019s arguments.","13.In its judgment of 27 March 2015 the City Court found that the applicant would not be able to provide X with proper care either at that time or in the future, and it therefore declined her application for the foster care placement to be discontinued.","14.The court based its assessment on the grounds that X was a vulnerable child with special care needs. X had been two years and three months old when he had been placed in an emergency foster home. Up until then, he had been in his mother\u2019s care. When he had been taken into care in 2012, he had been described as having a low level of cognitive, motor and linguistic functioning; he had been emotionally flat, unable to express his own needs, and had had little expectation of interaction with others. He had developed a serious eating disorder, and had had patterns of compulsive behaviour and an abnormally great need for sleep. In a report from an outpatient clinic of 29 August 2012, it had been indicated that X\u2019s symptoms were consistent with pervasive developmental disorders. The symptoms had been partly on the autism spectrum. However, a later assessment at a hospital\u2019s child assessment unit in December 2012 had concluded that he did not have an ordinary autistic disorder. Since the boy had moved into the foster home in March 2013, there had been no suspicion that he was suffering from a developmental disorder.","15.The City Court also based its assessments on the foster mother\u2019s descriptions of the boy\u2019s development from the time when he had been placed in the foster home. His motor skills had developed well. He had gone from repeating what other people said in a low voice to uttering things himself. Whereas previously he could not accept praise, he was now able to accept it when someone said something positive about him and show that he was pleased with himself. He allowed himself to be comforted and accepted physical intimacy with certain people. He had also shown progress in relation to meals. When he had been placed in foster care, he had not shown when he was hungry. He had liked to be fed and preferred baby porridge. After a long period of adjustment he was now able to eat a more varied diet. He was also able to communicate that he was hungry or full. In stressful situations he still had difficulties swallowing. He had also become socialised. His compulsive behaviour symptoms had decreased, and he tolerated getting his hands and clothes dirty. He still tired easily and had shorter days in kindergarten than other children of his age. However, his need for sleep was normal. He displayed an enormous need for security; he needed to be prepared for events and was very concerned with having everyone in the foster family present. If there were irregularities in his everyday life, he became very restless. Examples of this included when the supervisor visited the foster home or when the family went to their cabin. In such situations, he started thinking that he was going to move.","16.X\u2019s development had been confirmed by the educational supervisor in his kindergarten. The foster home supervisor had also stated that he had had a steep learning curve from the time when he had been placed in the foster home.S., a psychologist at A. outpatient clinic, had testified that she saw the boy\u2019s development as linked to the fact that his care situation had changed. His needs were being met in the foster home, and his functioning at the time when he had been placed in emergency care could, in all likelihood, be ascribed to his mother\u2019s inadequate care during the first two years of his life. In S.\u2019s assessment, relational or developmental trauma had been inflicted on X while he had been in his mother\u2019s care. The court agreed with S.\u2019s assessment of the causal relationship.","17.S. had also testified that, given his trauma, X would be vulnerable for the rest of his life. He would be particularly vulnerable to changes and stress, and he would have a far greater need for predictability than other children. On the basis of the evidence presented regarding the boy\u2019s development and the challenges he still struggled with, the City Court also agreed with S.\u2019s assessment on this point.","18.Given X\u2019s vulnerability and needs, in the City Court\u2019s opinion he would need very sensitive caregivers who would be able to familiarise themselves with his needs and accommodate them.","19.The City Court did not doubt that the applicant was very involved with her son and that, to the best of her ability, she loved him very much. She had had a deep-rooted desire to become a mother and had gone as far as becoming pregnant by using an unknown donor at a clinic abroad. She had testified in court that this process had demanded a lot from her, and that she had focused strongly on this task both before and during her pregnancy. She had acquired knowledge of children from television shows, among other things, and was very concerned with expert advice.","20.In examining whether the circumstances had changed, the City Court observed that the care order in 2012 had been based on a professional assessment that the applicant\u2019s care was inadequate in all areas. In the report from the outpatient clinic of 29 August 2012 (see paragraph 14 above), the applicant had been described as having very little in the way of intuitive parenting skills. She was at a loss when situations involving the child arose, and incapable of leading the child or creating structure. She appeared to be insecure, without the ability to create meaning in situations or provide the child with developmental support. The City Court\u2019s judgment of 25February 2013 (confirming the care order) had also been based on the applicant\u2019s complete lack of general and intuitive competence to provide care (see paragraph 9 above).","21.The applicant had acknowledged in court that the care order in 2012 had been justified. She had stated that she realised that her interaction with X had been poor and that she had been unable to set limits for him, but had emphasised that the situation was different now. She had taken several courses, among other things, a parenting course \u2013 ICDP (International Child Development Programme) \u2013 and a course for kindergarten assistants for speakers of minority languages. She had also worked in a kindergarten for about six months, and had referred to her professional references from there. She had allowed herself to be assessed by S.C., a private psychiatrist, who had testified in court that he had not found her to be suffering from any mental health problems. She had also engaged E.S. and S.H.G., psychologists who were experts in the child welfare issues raised in the case.","22.The court questioned the applicant\u2019s declared acknowledgement regarding the neglect that had formed the basis for the care order in 2012. During her testimony, she had not acknowledged that X had shown signs of problems to any great extent. She had described him as a well-functioning and social child, and had instead questioned how his being taken into care had affected him. The court noted that the applicant had used a great deal of resources in preparing her claim for revocation of the care order in respect of X, and stated that it was positive that she had wanted to strengthen her competence through a parenting course and a work placement for kindergarten assistants. However, the court could not see that these measures had had much effect on her ability to provide care. Her challenge was that she had little intuitive parenting skills. She did not have the capacity to intuitively understand the child\u2019s needs. Although she had wanted to understand the boy\u2019s perspective, she had not been able to. It was not possible to acquire such basic parenting skills through courses and a work placement in a kindergarten. It was therefore difficult to see that the applicant\u2019s position as a carer for X was very different from what it had been at the time the care order had been issued.","23.The applicant had also testified in court that family members would support her if X were returned to her. She had stated that her father, who was eighty years old, would move to Norway and live with her in her flat. She had also pointed out that both her mother and sister lived in the same city as her. The court could not see that the applicant\u2019s family members were resourceful people who could compensate for her inadequacies as a caregiver to any great extent. Her mother and sister had been a part of her social network in the city all along, and as far as they were concerned, the situation was no different from what it had been at the time the care order had been issued.","24.The City Court went on to observe that there had been four contact sessions since the care order had been issued in 2012. The most recent contact session had taken place after the County Social Welfare Board\u2019s consideration of the case in November 2014. In the City Court\u2019s opinion, reports from the contact sessions also confirmed that the applicant\u2019s ability to provide care had not changed. She repeatedly corrected X\u2019s perception of who his mother was, despite the fact that he reacted by becoming insecure and confused. She behaved invasively and changed activities frequently, without X showing that he was following her. During the last contact session she had been very concerned with filming the boy, without caring about how this affected their interaction. The court gave consideration to the fact that a supervised contact situation could be a difficult arena in which to display natural caring skills. The applicant had also acted more calmly during one of the other contact sessions, in April 2014. However, viewing the four reports from the contact sessions in conjunction with each other, the court was nevertheless of the opinion that her behaviour showed that she still did not see the boy\u2019s perspectives and needs (ser guttens perspektiv og behov).","25.X had had strong reactions in connection with the four contact sessions. His foster mother had written down his reactions to all of the contact sessions. The educational supervisor at the kindergarten had noted several of the same reactions. The psychiatric outpatient clinic for children and young people (barne- og ungdomspsykiatrisk poliklinikk \u2013 BUP) and the foster home supervisor had also provided statements regarding X\u2019s reactions which the foster family had told them about. The court found that X had sought security after all four contact sessions. Among other things, he had followed his foster mother around the home and called for her. He had been restless before being put to bed, his sleep had been disturbed, and he had woken up several times during the night. He had been tired and worn out, had slept during the day and had needed more sleep at night. He had been fidgety and had changed his play activities frequently, had had heightened emotions, and had become very angry, very sad and very happy. His reactions after the last contact session in November 2014 had been particularly strong. After this session, X\u2019s functioning had deteriorated considerably. He had wet himself during the night and behaved like a baby. He had wanted to be bounced on people\u2019s laps (\u201cride ranke\u201d) and to put things in his mouth. He had been fidgety when playing, had had to be fed, and had retched while eating. These reactions had lasted two months. X\u2019s foster mother testified that after the last contact session the family had started to doubt whether they would ever again see the boy as he had been before the contact session.","26.The applicant had argued that X\u2019s reactions were an expression of how much he missed her. This view had been supported by her privately appointed psychologists, E.S. and S.H.G. (see paragraph 21 above). They had argued that the attachment that had formed between X and the applicant during the first two years of his life was strong, and that his reactions had to be interpreted as a sign that he missed his primary caregiver, the applicant. The court had a different interpretation of the reactions after the contact sessions. In its opinion, it was possible that the reactions were somewhat complex. However, its assessment was nevertheless that the reactions were mainly an expression of the boy\u2019s insecure attachment to the applicant and the fact that the contact sessions had had a retraumatising effect on him. His reactions indicated that there was a great risk that returning him to the applicant would seriously jeopardise his mental health, therefore such a return would be completely irresponsible.","27.In the court\u2019s opinion, assistance measures would not go far towards compensating for the applicant\u2019s inadequate ability to provide care appropriate to X\u2019s needs. This was precisely connected to the fact that her shortcomings were related to basic and intuitive parenting skills.","28.In the court\u2019s opinion, the attachment condition in the second sentence of the first paragraph of section 4-21 of the Child Welfare Act (see paragraph 38 below) had also been satisfied, for the following reasons.","29.X had lived in the foster home for about two years. This was a long time in the life of a five-year-old. He had developed greatly during this period. His foster mother had refrained from working outside the home in order to meet his needs, and on the basis of the evidence presented, the court found that X had a particular attachment to her. Reports from the contact sessions showed that X sought contact with his foster parents for confirmation of what he experienced in the context of the contact sessions. He called his foster parents mum and dad, and described his foster brother as his brother. The court found that X\u2019s development during the past two years had been due to the fact that he had established a secure attachment to people who were able to see his particular needs. The court had no doubt that the foster home was now X\u2019s primary care base. As a result of the relational and developmental trauma that had been inflicted on him as a small child, X was very vulnerable to changes. Moving him from a situation where he was currently functioning well would entail a great risk of serious harm to his mental health.","30.On this basis, as required by the above-mentioned section 4-21 of the Child Welfare Act, the court found that it had been clearly substantiated that X had become so attached to his foster parents and the environment where he was living that removing him might lead to serious problems for him.","31.On the question of contact rights, the City Court\u2019s judgment contained the following passages:","\u201cThe Court has concluded above that [X] has become so attached to his foster home that moving him will lead to serious problems for him. [X\u2019s] placement therefore has a long-term perspective. A contact arrangement is not intended to facilitate or prepare for [X\u2019s mother providing] care in the future [(\u201cfremtidig tilbakef\u00f8ring\u201d)]. The purpose of a contact arrangement shall be to ensure that [X] knows his biological mother.","In ... the City Court\u2019s hearing in the case in February 2013, contact was set at one hour twice a year, under supervision. This very limited contact arrangement was in effect until the most recent contact session in November 2014.","The Court has described the boy\u2019s reactions in connection with contact in its discussion of whether to revoke the care order. The Court considers that the boy\u2019s reactions are very serious. His reactions after contact are particularly worrying. The reactions after the last contact session lasted around two months. His reactions included regression to the baby stage, bed-wetting, and retching when eating.","It is not uncommon for children who have been placed in foster homes to experience reactions in connection with contact with their biological parents. Such reactions do not necessarily have to form a basis for terminating contact. In the longer term, it can be useful for a child to be in contact with his or her parents, and a contact arrangement must be seen from this perspective. This means that reactions must be accepted to a certain extent.","However, the Court is of the opinion that the reactions displayed by [X] are too extensive and serious to be acceptable. Considering that [X] will start school in autumn 2015, reactions in the form of long-term regression will be particularly harmful to his development, both socially and in relation to his education. It is very important to [X]\u2019s continued development that he is not placed in situations that could seriously harm his mental health.","On this basis, the Court has found that the risk that [X] will be harmed if contact continues is so great that the interests of the biological mother must yield. There are special factors in this case, and exceptional and strong reasons indicate that contact should be denied under the first sentence of the second paragraph of section 4-19 of the Child Welfare Act.\u201d","32.As to the question of whether the foster parents\u2019 address should be disclosed to the applicant, the City Court stated, inter alia:","\u201c[The applicant] has not reconciled herself with the fact that her son has been taken into care and, together with her extended family, she has shown a strong commitment to having him returned to her care. In connection with the contact sessions, the mother has been very interested in information about her son\u2019s whereabouts. Among other things, she has asked how long the drive to the foster home is. The City Court shares the County Social Welfare Board\u2019s view that it has not been substantiated that there is a risk of kidnapping if the address is disclosed. However, the Court finds that there is a preponderance of probability that the mother will contact [X] if she knows where he lives. Considering the boy\u2019s very strong reactions after contact sessions, the Court finds that such unannounced contact will have a disproportionately strong effect on [him]. He needs to be protected in his established environment. The mother not being entitled to know where the child lives is an obvious encroachment on her rights as the biological mother. However, the Court finds that [the applicant]\u2019s need to know where [X] lives must yield to the boy\u2019s interests. The Court has therefore concluded that the address of the foster parents must be withheld from [the applicant].\u201d","33.The applicant appealed against the City Court\u2019s judgment to the High Court, which on 22 May 2015 refused leave to appeal.","34.The High Court observed that after the main hearing the City Court had arrived at the same conclusion as the County Social Welfare Board. That hearing had lasted two days and fourteen witnesses had been called, including the applicant\u2019s regular general practitioner (GP), her psychiatrist, a psychologist who had counselled her, and two psychologists whom she had engaged (see also paragraph 12 above).","35.In the High Court\u2019s view, the City Court\u2019s judgment appeared to be thorough and well founded. The High Court did not see that not appointing an expert witness had been a procedural error. The question of the applicant\u2019s ability to provide care seemed to have been thoroughly elucidated through, among other things, assessments from A. and F. childcare centres (which had merged) in 2012, other written documentation, and numerous witness statements. In the High Court\u2019s opinion, it had not been necessary to have a psychologist observe the interaction between the applicant and X prior to the main hearing in order to arrive at a satisfactory factual basis for a decision. The report from the last contact session on 12November 2014 stated that the interaction had not been adequate (lite tilfredsstillende). The City Court had found that X\u2019s reactions after this contact session had been particularly strong (see also paragraph 25 above). Consideration for X\u2019s well-being therefore indicated that restraint should be shown with respect to involving him in an expert assessment. In the opinion of the High Court, no particular circumstances existed that gave any weighty indications in favour of granting leave to appeal.","36.On 3 July 2015 the Supreme Court\u2019s Committee on Leave to Appeal (H\u00f8yesteretts ankeutvalg) rejected an appeal by the applicant against the High Court\u2019s decision."],"154":["1. The applicant, Mr Khalid El Khalloufi, is a Moroccan national who was born in 1988 and lives in Amsterdam. He was represented before the Court by Mr W.H. Jebbink, a lawyer practising in Amsterdam.","A. The circumstances of the case","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","3. On the morning of 28 March 2015 two police officers in a marked police car spotted a car being driven in an erratic fashion. Suspecting that the driver was under the influence of alcohol or drugs, they followed it and tried to block its passage. Ignoring an order to stop, the driver drove off at speed. A witness saw the car knock down a pedestrian on a zebra crossing and continue on its way without reducing speed. It was found shortly afterwards in the street where the applicant lived, severely damaged and parked against a lorry and on top of a traffic sign and a bicycle, which had both been run over. The pedestrian victim suffered a broken leg and a fractured eye socket; she needed surgery and extensive physiotherapy.","4. The applicant was arrested in his home shortly afterwards and positively identified as the driver of the car by the two police officers who had tried to stop him. It was recorded that when he had arrived at the police station, his breath had smelt of drink, his speech had been slurred, he had had difficulty sitting up straight and he had admitted having drunk large quantities of alcohol the previous night.","5. The applicant was ordered to undergo a breathalyser test and to obey all instructions given for the purpose of the test. He was also informed that if he failed to cooperate, he would be penalised (see paragraphs 27 - 28 below). The applicant refused to obey the instructions and replied: \u201cI \u2019 m not budging. I want to talk to my lawyer.\u201d As it was impossible under these circumstances to complete the breathalyser test, the police officer giving the order took this attitude as a refusal to cooperate.","6. On 16 July 2015 the Amsterdam Regional Court ( rechtbank ) found the applicant guilty of causing a traffic accident while still a novice driver ( beginnend bestuurder ) and while under the influence of alcohol, the traffic accident having caused grievous bodily injury ( zwaar lichamelijk letsel); of refusing to undergo a breathalyser test; of leaving the scene of an accident in which a person had suffered serious injury; and of causing another accident and leaving the scene of the accident even though he knew that the accident had caused damage.","7. The applicant was sentenced to eight months \u2019 imprisonment. In addition, his driver \u2019 s licence was suspended for four years.","8. Both the applicant and the prosecution appealed to the Amsterdam Court of Appeal ( gerechtshof ).","9. The Court of Appeal gave judgment on 14 March 2016. It established the facts of the case afresh and handed down a new conviction, sentencing the applicant to ten months \u2019 imprisonment and suspending his driver \u2019 s licence for a total of four years and six months. Its reasoning included the following:","\u201cThe accused has, while under the influence of alcohol and after having been given a signal to stop by the police, driven a car in a most reckless and careless fashion and caused a traffic accident in which a pedestrian sustained grievous bodily injury. After the accident the accused drove off at high speed, caused another collision and left the scene of that accident also. He then refused to cooperate in a breathalyser test and thus prevented the degree to which he was under the influence of alcohol from being objectively established. This constituted a gross dereliction of his responsibility as a road user, with the apparent intention of evading the police. It shows that he places his own interests above the law and the orders given to him by the police within the framework of road safety. This is something the Court of Appeal considers to be a serious matter and one for which it places full blame on the accused. There is all the more occasion for this since \u2013 even at the appeal hearing \u2013 he was not willing to accept responsibility for what he had caused, let alone shown any sign of understanding the reprehensible nature of his acts.\u201d","10. The applicant lodged an appeal in cassation with the Supreme Court ( Hoge Raad ).","11. Before the Supreme Court, the applicant argued, inter alia, that the Court of Appeal \u2019 s judgment should be quashed as the existing domestic case-law equating a suspect \u2019 s demand for access to a lawyer before agreeing to undergo a breathalyser test with refusal to undergo such a test (see paragraph 29 below) was no longer considered good practice. He submitted that suspects should be provided promptly with information concerning the right of access to a lawyer and actual access to a lawyer without undue delay. In addition, the applicant referred to case-law of the European Court of Human Rights \u2013 specifically, Loboda v. Ukraine (no. 8865\/06, 17 November 2016), and Ibrahim and Others v. the United Kingdom ([GC], no. 50541\/08 and 3 others, \u00a7 255, ECHR 2016) \u2013 emphasising that the right of everyone charged with a criminal offence to be effectively defended by a lawyer was one of the fundamental features of the notion of a fair trial. In his submission, lawyers were easily reachable by mobile telephone, so that his wish to speak to a lawyer before undergoing a breathalyser test had been reasonable and ought not to have been construed as a refusal to undergo such a test.","12. The Procurator General did not submit an advisory opinion in writing.","13. On 28 March 2017, the Supreme Court declared the appeal inadmissible on summary reasoning, applying section 80a of the Judiciary (Organisation) Act ( Wet op de rechterlijke organisatie; see paragraph 21 below).","B. Relevant domestic law and practice","1. Code of Criminal Procedure","14. Article 432 of the Code of Criminal Procedure (\u201cthe CCP\u201d) provides that, except in certain circumstances not relevant to the present case, an appeal in cassation must be introduced within fourteen days of the delivery date of the final judgment.","15. Once the registry of the Supreme Court has received the case file, the Procurator General must notify the defence accordingly (Article 435 \u00a7 1).","16. Once the defence has been notified in accordance with Article 435 \u00a7 1, the President of the Supreme Court sets a hearing date ( rechtsdag ) for the public submission of the Procurator General \u2019 s advisory opinion. The defence must be notified of that date (Article 436 \u00a7\u00a7 1-2).","17. If the appeal in cassation has been lodged by the defence, the accused \u2019 s counsel must submit a written statement of grounds of appeal within two months, failing which the appeal will be declared inadmissible (Article 437 \u00a7 2).","18. On the date set for that purpose (Article 436 \u00a7 1 and paragraph 16 above), the Procurator General submits his advisory opinion in writing to the Supreme Court.","19. All cases must be heard ( in behandeling genomen ) at a public hearing for criminal cases before a single-judge chamber of the Supreme Court (the administrative session judge; Article 438 \u00a7 1). The administrative session judge will refer a case to a multi-judge chamber ( meervoudige kamer ) if, inter alia, counsel for the defence wishes to explain the grounds of appeal orally rather than merely by means of a written submission.","20. The Procurator General will submit an advisory opinion in writing (Article 439 \u00a7 1) unless no statement of grounds of appeal has been submitted on behalf of the accused (Article 439 \u00a7 2). A copy of the advisory opinion must be sent to the defence (Article 439 \u00a7 3). Counsel for the defence has two weeks to submit written comments \u2013 the \u201cBorgers letter\u201d (so called following the Court \u2019 s judgment in the case of Borgers v. Belgium, 30 October 1991, Series A no. 214 \u2011 B) \u2013 in response (Article 439 \u00a7 5).","2. The Judiciary (Organisation) Act","(a) Section 80a","21. Section 80a of the Judiciary (Organisation) Act entered into force on 1 July 2012. It provides as follows (references to other domestic legislation omitted):","\u201c1. The Supreme Court may, after having taken cognisance of the advisory opinion of the Procurator General ( gehoord de procureur-generaal ), declare an appeal in cassation inadmissible if the complaints raised do not justify an examination in cassation proceedings ( de aangevoerde klachten geen behandeling in cassatie rechtvaardigen ), because the appellant party obviously has insufficient interest in the cassation appeal ( klaarblijkelijk onvoldoende belang heeft bij het cassatieberoep ) or because the complaints obviously cannot succeed ( klaarblijkelijk niet tot cassatie kunnen leiden ).","2. The Supreme Court shall not take a decision as referred to in the first paragraph without first having taken cognisance of:","[in civil cases:] the summons or request [introducing the cassation appeal] ... and the memorandum in reply ( conclusie van antwoord ) or the statement of defence ( verweerschrift ), if submitted;","[in criminal cases:] the written statement of the grounds of the cassation appeal ( de schriftuur, houdende de middelen van cassatie ) ...; or, as the case may be,","[in tax cases:] the written statement introducing the cassation appeal ( het beroepschrift waarbij beroep in cassatie wordt ingesteld ) ... and the statement of defence, if submitted.","3. The cassation appeal shall be considered and decided by three members of a multi-judge Chamber ( meervoudige kamer ), one of whom shall act as president.","4. If the Supreme Court applies the first paragraph, it may, in stating the grounds for its decision, limit itself to that finding.\u201d","(b) Relevant case-law and practice","i. Case-law of the Supreme Court","22. In a series of judgments of 11 September 2012 (ECLI:NL:HR:2012:BX0146; ECLI:NL:HR:2012:BX0129; ECLI:NL:HR:2012: BX7004; ECLI:NL:HR:2012: BX0132 and ECLI:NL:HR:2012: BY912) the Supreme Court clarified its understanding of section 80a of the Judiciary (Organisation) Act as applicable in criminal cases. The following is an excerpt from ECLI:NL:HR:2012: BX7004:","\u201c2.1.2. The explanatory memorandum ( memorie van toelichting ) to the Bill that led to this Act (Parliamentary Documents, Lower House of Parliament ( Kamerstukken II ) 2010\/11, 32 576, no. 3) includes the following:","\u2018 1. Introduction","Aim pursued by the Bill","This Bill aims to strengthen the role of the cassation procedure ( versterking van de cassatierechtspraak ) by establishing different and new requirements for lawyers who act as representatives before the Supreme Court and by introducing the possibility for the Supreme Court to declare inadmissible a cassation appeal at the beginning of the procedure. The Bill is intended to enable the Supreme Court to concentrate on its core tasks as a court of cassation. The adequate execution of these core tasks is under pressure as a result of cassation appeals being lodged in cases that do not lend themselves to a review in cassation, and because certain issues about which it would be desirable for the Supreme Court itself to pronounce do not reach the Supreme Court in time or at all. The establishment of quality requirements for counsel is aimed at ensuring that cassation appeals are accompanied by statements of grounds of appeal that are of decent quality.","...","Accelerated inadmissibility","Another measure [in addition to establishing new quality requirements for legal representatives] is the introduction of a mechanism for disposing of cases that goes beyond that of the current section 81 of the Judiciary (Organisation) Act. Section 81 of the Judiciary (Organisation) Act enables the Supreme Court to limit the reasoning of the rejection of a cassation grievance to the finding that the complaint raised therein \u2018 does not constitute grounds for overturning the impugned judgment and does not give rise to the need to determine legal issues in the interests of legal uniformity and legal development \u2019.","Section 81 of the Judiciary (Organisation) Act has in recent years played an important part in keeping the workload of the Supreme Court manageable. The Supreme Court now applies this provision in approximately half of its cases. However, the limits of its application are discernible. Moreover, section 81 is applied only at the end of cassation proceedings and, (invariably, in civil and criminal cases) after an advisory opinion from the Procurator General. However, the possibility of rejecting cases that have no prospect of success at an earlier stage of the proceedings and in a simple manner would constitute a considerable alleviation for the parties to the proceedings and the Supreme Court alike. ...","Pursuant to Article 118 \u00a7 2 of the Constitution ( Grondwet ), the Supreme Court is charged, in the cases and within the limits prescribed by law, with overturning judicial decisions that are contrary to the law ( de cassatie van uitspraken wegens schending van het recht ). The Bill explicitly does not seek to change the Supreme Court \u2019 s task. Nor does [the Bill] involve a leave-to-appeal system in which a court has to give prior permission before a legal remedy can be used. The freedom of parties to lodge cassation appeals remains unimpaired. What is new is the latitude given to the Supreme Court to declare an appeal inadmissible on the (substantive) finding that the grounds of appeal submitted do not justify a detailed review in cassation proceedings ( geen nadere beoordeling in cassatie rechtvaardigen ). The appeal may, for instance, be manifestly ill-founded ( klaarblijkelijke ongegrondheid ), because the impugned ruling rests on two grounds, each of which is capable of supporting the decision by itself but only one of which is challenged, or there may be a lack of interest, for example because a ground for the appeal, although well-founded, cannot, after the overturning of the impugned ruling, lead to an outcome other than the one to which that ruling had led.","...","2.2.2. Section 80a of the Judiciary (Organisation) Act does, however, bring about a change in cases in which an omission hitherto necessitated the overturning of the impugned ruling, even though the person bringing the cassation appeal did not actually have a sufficient interest \u2212 deserving to be respected in law ( niet voldoende in rechte te respecteren belang ) \u2212 in such an overturning and a possible rehearing after remittal or referral of the case. In this context, it is to be noted that the mere possibility \u2013 regardless of the reason for which the appeal is considered well-founded \u2013 that in that situation a different, and possibly more advantageous, ruling could be given (for example, a reduction of sentence pursuant to the length of the proceedings before and after remittal or referral of the case, or in relation to changed personal circumstances) cannot be considered an interest that deserves to be upheld in law in cassation proceedings.","...","2.2.4. In this connection it is worth paying attention to the example mentioned on page 19 of the explanatory memorandum, that an appeal in cassation can henceforth be disposed of under section 80a of the Judiciary (Organisation) Act if it purports to complain only that as a result of the introduction of the appeal in cassation, the reasonable time requirement within the meaning of Article 6 \u00a7 1 of the Convention has been violated. In such a case, in which the person concerned appears not to have any complaints (on points of law) about the judgment appealed against, nor about the way the lower court has handled the case, and the accused has to a certain extent himself chosen to live under the threat of (further) prosecution for longer than is reasonable, reliance on the reasonable time requirement laid down in the aforementioned Convention provision is not a complaint that expresses a sufficient interest in the appeal in cassation. After all, it cannot be said that there has been an omission that has had a bearing on the impugned judgment. It does not make any difference if, in addition to the point of appeal concerning the reasonable time requirement, no other grounds of appeal are submitted than those that do not stand in the way of the application of section 80a of the Judiciary (Organisation) Act.\u201d","23. The judgment goes on to identify other specific types of cases in which section 80a of the Judiciary (Organisation) Act may be applied. It continues:","\u201cConsequences for the content of the statement of grounds of appeal in cassation and the \u2018 Borgers letter \u2019","2.6.1. Pursuant to the second paragraph of section 80a of the Judiciary (Organisation) Act, the Supreme Court shall not take a decision as referred to in the first paragraph without first having taken cognisance of the written statement of grounds of appeal in cassation ... If the \u2018 selection at the gate \u2019 ( selectie aan de poort ) which the legislature has introduced by way of section 80a of the Judiciary (Organisation) Act is to meet its intended aims, then the advocate acting as procedural representative, or the public prosecution service as the case may be, can reasonably be expected \u2013 in the words of the explanatory memorandum \u2013 to submit \u2018 statements of grounds of appeal ... that are of decent quality \u2019.","2.6.2. The first paragraph of section 80a of the Judiciary (Organisation) Act provides that the appeal in cassation can be declared inadmissible on the grounds that the appellant party obviously has insufficient interest in it. That being so, it is reasonable to expect from counsel and the public prosecution service, in cases in which [the] interest is not obvious, that the statement of grounds of appeal elaborates on the interest in the appeal in cassation lodged and therefore also on the interest deserving to be upheld and requiring the quashing of the impugned judgment and the rehearing of the case by the lower court. That too follows from the need, stressed in the explanatory memorandum, for an improvement of the quality of statements of grounds of appeal in cassation.","2.6.3. Section 80a of the Judiciary (Organisation) Act provides that in the cases referred to therein, the Supreme Court may declare the cassation appeal inadmissible after having taken cognisance of the advisory opinion of the Procurator General. It must be presumed that the Procurator General will express his point of view as to the applicability of section 80a of the Judiciary (Organisation) Act on a hearing day set by the administrative session judge ( rolraadsheer ). It must also be presumed that if the Procurator General is of the opinion that the case lends itself to the application of section 80a of the Judiciary (Organisation) Act, he will express this point of view in writing. In such event, counsel for the person by whom or on whose behalf the appeal has been lodged has two weeks to respond in writing to that point of view.\u201d","ii. Practice of the Procurator General; the Supreme Court \u2019 s judgment of 3 February 2015","24. It was formerly the practice of the Procurator General to provide a brief statement confirming that it was appropriate to apply section 80a to the case and proffer reasons for that view. However, in an advisory opinion of 16 December 2014 (ECLI:NL:PHR:2014:2304), the Procurator General informed the Supreme Court and the public that he would henceforth adopt the following understanding of the expression \u201c having taken cognisance of the advisory opinion of the Procurator General \u201d contained in section 80a \u00a7 1 (see paragraph 21 above) :","\u201c5. Section 80a of the Judiciary (Organisation) Act provides that the Supreme Court can declare the appeal in cassation inadmissible \u2018 having taken cognisance of the advisory opinion of the Procurator General \u2019. The explanatory memorandum ( memorie van toelichting ) to the Bill that led to this Act (Parliamentary Documents, Lower House of Parliament ( Kamerstukken II ) 2010\/11, 32 576, no. 3), states as follows :","\u2018 It is important that the Procurator General is provided with the opportunity to give his statement on the case or the applicability of section 80a of the Judiciary (Organisation) Act. This is the purport of the phrase \u201chaving taken cognisance of the advisory opinion of the Procurator General\u201d. Note that this phrase also entails that the Procurator General can decide not to take a position; there is no obligation to do so. \u2019","6. In addition, in response to a question from the Christian Democratic Alliance group in parliament regarding the way in which the Public Prosecution Service \u2019 s right to be heard (!) ( het hoorrecht van het openbaar ministerie (!) ) would be treated when section 80a of the Judiciary (Organisation) Act was applied, the memorandum in reply ( memorie van antwoord ) to the Upper House [Parliamentary Documents, Upper House of Parliament ( Kamerstukken ) 2010\/11, 32 576 C], explained this right to be heard in the following terms:","\u2018 The right to be heard means that the Procurator General will be given the opportunity to be heard. This entails bringing his point of view to the attention of the Supreme Court in writing. This right to be heard means that the Supreme Court cannot decide not to involve the Procurator General in the appeal.","This does not alter the fact that when the Procurator General decides not to use his right to be heard and the Supreme Court feels that an advisory opinion is needed from the Procurator General, the Supreme Court can ask him to submit such an advisory opinion. It is expected that the Procurator General will always honour such requests. \u2019 \u201d","25. As apparent from the above quote, the Procurator General concluded that there was no obligation under section 80a of the Judiciary (Organisation) Act to advise on the applicability of that section. Prior to the advisory opinion of 16 December 2014, it had been the Procurator General \u2019 s practice to advise in every single case. However, as the criteria for applying section 80a were well enough known, the Office ( parket ) of the Procurator General concluded that this was no longer necessary. For that reason, he had decided to discontinue the practice of taking a position on the application of section 80a of the Act at issue. The Procurator General stated:","\u201c14. I wish to emphasise that not taking a position in writing does not imply a disguised advisory opinion in a case. Therefore, in my opinion, if no position is taken [on the applicability of section 80a of the Judiciary (Organisation) Act] the so-called \u2018 Borgers letter \u2019, in which counsel can react to the Procurator General \u2019 s advisory opinion, will no longer be a possibility. There will after all be no position to react to. ...\u201d","26. In its judgment of 3 February 2015 (ECLI:NL:HR:2015:96) the Supreme Court responded as follows:","\u201c2.1. The Supreme Court has taken cognisance of the view stated in the advisory opinion of the Procurator General concerning the change proposed by the Office of the Procurator General in the practice of taking a position \u2013 in writing \u2013 in relation to the application of section 80a of the Judiciary (Organisation) Act. The gist of this change is that although offered the opportunity to do so, the Office of the Procurator General will in due course refrain from expressing a view on the application of section 80a of the Judiciary (Organisation) Act.","2.2. Neither the wording nor the purport of section 80a of the Judiciary (Organisation) Act prevents the Office of the Procurator General from refraining from expressing a view on the application of that provision. The prescription in Article 439 \u00a7 1 of the Code of Criminal Procedure that the Procurator General must submit an advisory opinion in writing does not preclude this either, because that provision is aimed at other cases than those referred to in section 80a of the Judiciary (Organisation) Act.","2.3.1. In its judgments of 11 September 2012 the Supreme Court held (in paragraph 2.6.3) that, where the Procurator General makes his position known on a hearing date set by the administrative session judge ( rolraadsheer ) and confirms in writing that it is appropriate to apply section 80a of the Judiciary (Organisation) Act, counsel for the person by whom, or on whose behalf, the appeal in cassation has been lodged has two weeks to react to that position in writing.","2.3.2. If the Procurator General refrains from taking a position on the application of section 80a of the Judiciary (Organisation) Act or takes the position orally, on the hearing date set for that purpose, that it is appropriate to apply section 80a of the Judiciary (Organisation) Act \u2013 and accordingly does not submit an advisory opinion in writing, a copy of which is to be sent to counsel pursuant to Article 439 \u00a7 3 of the Code of Criminal Procedure \u2013 then there is no occasion to react in writing to the advisory opinion as referred to in Article 439 \u00a7 5 of the Code of Criminal Procedure. Should the Supreme Court be of the view that the case is not one in which it is appropriate to apply section 80a of the Judiciary (Organisation) Act, then the Procurator General will submit an advisory opinion in writing on a hearing date set for that purpose, and counsel for the accused, or for the injured party as the case may be, will be in a position to submit a written response to the Supreme Court.\u201d","In its judgment of 7 June 2016 (ECLI:NL:HR:2016:1005), the Supreme Court reiterated this interpretation of section 80a of the Judiciary (Organisation) Act and Article 439 of the CCP (point 2.2 (a) of that judgment).","3. The obligation to take a breathalyser test","(a) The Road Traffic Act 1994","27. Section 8(2) of the Road Traffic Act 1994 ( Wegenverkeerswet 1994 ) makes it a crime to operate a vehicle after consuming alcohol such that a test reveals the proportion of alcohol in the breath to be in excess of 220 micrograms per litre of exhaled air or the proportion of alcohol in the blood to be in excess of 0.5 milligrams of alcohol per millilitre of blood. Section 8(3) provides that if the vehicle in issue is a motor vehicle for which a driver \u2019 s licence is required and the driver has held such a licence for less than five years, or less than seven years if the licence was issued to the driver before he or she reached the age of eighteen, then the maximum permissible proportion of alcohol in the breath is 88 micrograms per litre of exhaled air or 0.2 micrograms per millilitre of blood.","28. Section 163(1) of the Act provides that if an operator of a vehicle is suspected of having contravened section 8 of that Act, a civil servant vested with investigative powers ( opsporingsambtenaar ) may order such operator to undergo a breathalyser test. Section 163(2) provides that the vehicle operator is obliged to blow into a device intended for that purpose and obey all instructions given for the purpose of the test. Section 163(5) provides that if the vehicle operator does not consent to the test, he or she may be ordered to undergo a blood test. Section 175(3) provides that if the vehicle operator refuses to undergo a breathalyser test, he may incur a more severe penalty.","(b) Relevant case-law","29. In a judgment of 9 September 1986, ECLI:NL:HR:1986:AC1011, the Supreme Court dismissed on summary reasoning an appeal in cassation lodged by a defendant. Even though a doctor had identified no medical reason for him to refuse to undergo a blood alcohol test, he had persisted in his refusal to do so unless he was first permitted to consult his cardiologist. The advisory opinion of the Procurator General included the following (domestic-law references omitted):","\u201cUntil now the Supreme Court has equated conditional permission for a blood alcohol test provided for [in the Road Traffic Act] with a formal refusal. Anyone who states his willingness to cooperate but only after having consulted his lawyer will be considered to have refused ... The same applies to someone who permits the blood alcohol test, but only if it is taken from a part of the body chosen by himself ... And: if a person refuses, he is held to his word. He is not given another chance to undergo a blood alcohol test ...","It is important to maintain this line of case-law, because a lack of clarity about the suspect \u2019 s refusal \u2013 which is a constitutive element of the indictable offence [of refusing to undergo the blood alcohol test] \u2013 opens the door to misunderstanding, including concerning the investigative authority ( strafvorderlijke bevoegdheid ) of the civil servant vested with investigative powers and the quality of the collection of evidence, which is directly linked thereto.\u201d","30. In a judgment of 27 November 2012, ECLI:NL:HR:2012:BY1220, the Supreme Court held as follows:","\u201c2.4. If an arrested suspect has not, or not within reasonable limits, been offered an opportunity by the police to consult a lawyer before the first police interview, then that will in principle constitute a procedural violation ( vormverzuim ) within the meaning of Article 359a of the Code of Criminal Procedure. After a defence to that effect has been proffered, this should as a rule \u2013 except in the event that the suspect expressly or implicitly, but in any case unambiguously, has waived that right, or if cogent reasons exist to limit that right \u2013 lead to the exclusion as evidence of the suspect \u2019 s statements made before he or she could consult a lawyer (compare the Supreme Court \u2019 s judgment of 30 June 2009, [ECLI:NL:HR:2009:BH3079], NJ 2009\/349).","2.5. The ground of appeal is based on the view that the above applies also where a suspect is ordered to undergo a blood test as referred to in section 163(5) of the 1994 Road Traffic Act. That view is however incorrect because such an order cannot be equated with an interview.\u201d"],"155":["4.The applicant was born in 1966 and lives in Komsomolskoye.","5.The applicant is the widower of Ms Malika Vanayeva, who was born in 1975 and the brother of Mr Shamkhan Banzhayev, who was born in 1969.","6.The circumstances of the case, as submitted by the applicant and uncontested by the Government, may be summarised as follows.","Killing of the applicant\u2019s wife and abduction of his brother","(a) Bombing of Gezenchu on 25 August 2001","7.In 2001, during the active phase of the military counter-terrorist operation of the Russian federal forces in the Chechen Republic, the applicant, his wife Ms Malika Vanayeva and their four minor children were living in the village of Gezenchu (also spelt as Gezinchu) in the Vedeno district. The village\u2019s population comprised fewer than a dozen families.","8.In August 2001 the village was subjected to shelling by the Russian artillery on several occasions.","9.On 25 August 2001 (in the documents submitted the date was also cited as 25 August 2005) the applicant and his wife were at home. At about 3 or 4p.m. they heard sounds of explosions coming from the nearby forest in the vicinity of the village of Shirdi-Mokkh. The applicant\u2019s wife told him that their children were playing with their nephews in the nearby house of the applicant\u2019s brother, Mr Shirvani Banzhayev.","10.Immediately afterwards a bomb exploded in the courtyard of MrShirvani Banzhayev\u2019s house and then a few more close by. The applicant\u2019s children ran home scared. The applicant asked his wife to hide them in the basement and ran to his brother\u2019s house to offer help in case anyone had been wounded. The shelling stopped for a few minutes.","11.On the way to his brother\u2019s house, the applicant heard a gunshot \u2212 which had been fired from the direction of Engenoy (also spelt as Enginoy) village \u2212 and fell to the ground, as the bullet had hit his left leg. Shortly afterwards a bomb exploded next to him and he saw his sister and sister\u2011in\u2011law on the ground, both bleeding heavily. The applicant\u2019s brother Mr Islam Banzhayev and their relative Mr R.G. were close to the applicant\u2019s house, along with several other relatives trying to hide from the resumed bombing.","12.As a result of the second round of shelling, the applicant\u2019s wife and his relative R.G. were killed on the spot by a bomb which had become caught in a tree next to the house and had then exploded, while his youngest son Turpal-Ali and his relative Sh.G. suffered shrapnel wounds.","13.The applicant and his wounded relatives were immediately taken to Sayasan Hospital in the Nozhay-Yurt district, in the vicinity of Engenoy, and provided with medical help.","14.According to death certificate no.52 issued by the local administration and dated 6 December 2005, Ms Malika Vanayeva died on 25August 2001 from multiple shrapnel wounds to the head and chest. Her death was officially registered on 22 October 2001.","15.In the applicant\u2019s submission, following his emergency treatment in Sayasan, he had been transferred to Hospital no. 2 in Gudermes and subsequently to a hospital in Argun. He stated that, during the weeks he was hospitalised, some uniformed representatives of the authorities had questioned his wounded relatives about the shelling of Gezenchu.","16.In 2002, due to frequent shelling, all of the residents left Gezenchu village and the settlement became abandoned.","(b) Complaints about the bombing and the official investigation into the events","17.On 4 September 2001 and again on 7 September 2001 the applicant\u2019s brother, Mr Shamkhan Banzhayev \u2013 who was the head of the village administration at the time \u2013 lodged an official complaint about the shelling with the head of the Chechnya administration, the Chechnya military prosecutor, the Chechnya military commander and the Chechnya prosecutor. He stated that their village had been subjected to unprovoked shelling by the military unit stationed next to Engenoy in the Nozhay-Yurt district. As a result of the deliberate actions of the military servicemen who had launched around twelve to fifteen bombs, four families and their houses had been destroyed, six people had been wounded and two had been killed. He argued that, since only seven families had been living in the village at the time, the federal forces could readily have ascertained that, due to its size, the village would have been unable to harbour illegal armed groups without the authorities\u2019 knowledge. He provided information about the people who had been killed and wounded during the shelling and stated that on 24August 2001 he and a number of other representatives of the local community had gone to the military base in Engenoy and spoken with them in an effort to prevent any bombing. The military officers had told them that their orders were usually given to them by the Khankala headquarters, but had promised to keep their request in mind. On 25 August 2001 the village had nonetheless been shelled. Mr Shamkhan Banzhayev requested that the military servicemen responsible be identified and prosecuted.","18.On 19 September 2001 Mr Shamkhan Banzhayev again complained about the shelling, this time to the Vedeno prosecutor and the head of the Vedeno district administration, reiterating his previous complaints (see paragraph 17 above). He described in detail the circumstances of the shelling and its casualties. He requested that the incident be investigated with the participation of military prosecutors, and that the perpetrators amongst the Russian federal forces be prosecuted. He explained that on 24August 2001 he and a number of representatives of the local community, including several teachers, had gone to the military unit stationed next to Engenoy village to tell them that there was no reason to shell Gezenchu. The military servicemen had responded by saying that they received their orders from the Khankala headquarters but that they would not bomb Gezenchu. However, the following day they had subjected the village to bombing, disregarding the fact that it was populated by civilians. The applicant\u2019s brother enclosed a number of medical certificates with the complaint confirming the injuries sustained by the Gezenchu residents.","19.On 24 November 2001 the interim Chechnya military commander informed Mr Shamkhan Banzhayev that:","\u201c ... concerning the complaint about the shelling on 25 August 2001 of Gezenchu resulting in local residents being injured, the Vedeno prosecutor\u2019s office is carrying out an inquiry to decide whether to open a criminal case against the perpetrators ...\u201d","20.From the documents submitted it appears that between 2001 and 2002 the applicant\u2019s brother Mr Shamkhan Banzhayev, in his capacity as head of the Gezenchu administration, called on various authorities with a view to having the perpetrators of the shelling identified and prosecuted.","21.According to the applicant, on 15 November 2002 Mr Shamkhan Banzhayev was abducted, allegedly by military servicemen (see below).","22.After his brother\u2019s disappearance, the applicant and his family were concerned for their personal safety. It is unclear whether they continued to push for an investigation into the shelling. However, at some point in early 2007 the applicant complained that there had been no investigation into the shelling, prompting the authorities to initiate one.","23.On 23 July 2007 the Vedeno prosecutor\u2019s office (\u201cthe investigators\u201d) opened criminal case no. 23031. The decision stated:","\u201c ... on 25 August 2001 unidentified servicemen subjected the village of Gezenchu in the Vedeno district to artillery shelling, from the direction of Engenoy village in the Nozhay-Yurt district. As a result, M. Vanayeva and R.G. were killed ...","The actions of the unidentified servicemen provide sufficient grounds for them to be classified as a crime punishable under [paragraph] 3 of Article 109 [causing death to two or more persons by negligence] ...\u201d","24.On 2 August 2007 the investigators granted the applicant victim status in the criminal case and questioned him. The applicant\u2019s description of the shelling was similar to that given in his submissions to the Court. In addition, he stated that his brother, Mr Shamkhan Banzhayev, as head of the Gezenchu administration, had negotiated with the military unit stationed next to Engenoy that they would not shell Gezenchu, but to no avail. The shelling had been carried out by the military unit from its location next to Engenoy the day after his visit. In addition, the applicant stated that MrShamkhan Banzhayev had been abducted and had gone missing in November 2002.","25.On 23 September 2007 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators. It is unclear whether the applicant was informed of this suspension.","26.On 30 October 2007 the deputy head of the Shali district investigative committee (\u201cthe investigators\u2019 supervisor\u201d) overruled the suspension as premature and unsubstantiated and ordered a number of steps to be taken.","27.On 1 December 2007 the investigators again suspended the proceedings. From the documents submitted it does not appear that the steps ordered on 30October 2007 were ever taken. It appears that the applicant was not informed of the suspension.","28.From the documents submitted it appears that the investigation is still ongoing.","(c) The applicant\u2019s complaint against the investigators","29.On 17 November 2008 the applicant complained to the Shali District Court that the investigation into the shelling and the killing of his wife had been ineffective and requested, inter alia, that the court instruct the investigators to resume the investigation. In particular, he argued that the investigators had not taken any effective steps to solve the crime and claimed that they had even tried to cover it up. The applicant pointed out that it would not be very difficult to establish what type of weapons had been used for the shelling or identify the military unit which had had such ammunition.","30.On 19 December 2008 the Shali District Court allowed the complaint in part, stating that the applicant had failed to specify which exact steps the investigation would need to take. The court ordered the investigators to grant the applicant\u2019s requests and allow him access to the criminal case file to the extent permitted by the relevant domestic regulations.","(a) Abduction of the applicant\u2019s brother","31.According to the applicant, at about 3 p.m. on 15November 2002 his brother was abducted by armed servicemen close to the Vedeno military commander\u2019s office on Tsentralnya Street and has been missing ever since. The abductors approached him at the entrance checkpoint as he was leaving the military commander\u2019s office, forced him into a UAZ-type minibus (tabletka) and drove off.","32.The applicant did not witness the abduction, but the documents submitted indicate that his version of events corresponds with the material in the criminal case file.","33.According to the applicant, his brother\u2019s abduction was perpetrated by military servicemen who wanted to stop him requesting the prosecution of the servicemen responsible for the shelling of Gezenchu on 25August 2001.","(b) Official investigation into the events","34.On 26 November 2002 the applicant complained of his brother\u2019s abduction to the Vedeno district prosecutor\u2019s office and requested that the incident be investigated:","\u201c... at about 4 p.m. on 15 November 2002 my brother Shamkhan Banzhayev, the head of the Gezenchu village administration, was arrested when exiting the checkpoint at the entrance to the military commander\u2019s office by men in military uniforms and balaclavas. No explanations were given and no charges were brought against him.","My brother has been missing ever since his arrest and there has been no news concerning his whereabouts ...\u201d","35.No reply was given to this complaint.","36.On 23 June 2003 the applicant again complained of his brother\u2019s abduction, this time to the Vedeno district police department, and requested that an investigation be initiated. His complaint was officially registered as number 62 and on 2 July 2003 the police opened a search file. It appears that the applicant was informed of the opening of the search file.","37.On 22 June 2005 the acting Vedeno district prosecutor decided to initiate a criminal investigation (case no. 53028) into the abduction of MrShamkhan Banzhayev, stating that:","\u201c ... during an inspection of [the Vedeno district] police station and its registration logs, it was discovered that a case [a search file] had been opened in response to MrR. Banzhayev\u2019s complaint. However, neither a decision [nor a refusal] to open the criminal case ... had been given. Therefore, ... it has been decided that a criminal case will be opened now ...\u201d","38.It appears that the applicant was provided with a copy of that decision on 19 April 2007.","39.On 10 August 2005 the applicant was granted victim status and questioned on 11 August 2005. He gave the same version of events as that later submitted to the Court and stated that Mr B.L., his brother\u2019s bodyguard, and Mr V.K., a friend, had been with his brother at the time of his abduction.","40.On the same day Mr B.L. was questioned. He stated that he had seen a group of armed men accompany Mr Shamkhan Banzhayev to an UAZ\u2011type minibus, which had had no registration number, and then drive off. No force had been used against him. The driver of the minibus had told him that they were going to the military commander\u2019s office in Dyshne\u2011Vedeno and would be back in an hour.","41.On 13 August 2005 Mr V.K. was questioned. He stated that he had seen ten to fifteen armed men in camouflage and masks surround MrShamkhan Banzhayev, force him into an UAZ-type minibus and then drive off.","42.On 22 August 2005 the investigation was suspended. That decision was overruled by the investigators\u2019 superior on 9 January 2006. On 9February 2006 the investigation was suspended again. The applicant was not informed of that decision.","43.On 23 September 2006 the investigators\u2019 superior overruled the decision to suspend the investigation. The applicant was informed of that decision.","44.In September and October 2006 the supervising prosecutors instructed the investigators to take a number of investigative steps, including questioning the applicant\u2019s relatives and the men who had been with his brother at the time of his abduction, as well as the military personnel of the Vedeno military commander\u2019s office.","45.On 26 September 2006 the head of the Vedeno district administration, Mr D.Kh., was questioned. No new information was obtained.","46.On an unspecified date in 2006 the applicant was questioned again and confirmed his previous statement.","47.On 20 October 2006 the investigators examined the crime scene, the premises of the Vedeno military commander\u2019s office on Tsentralnaya Street. No evidence was collected.","48.On the same day Mr B.L. was questioned again. He stated that MrShamkhan Banzhayev had always carried his service pistol with him, including on the day of the incident.","49.On 21 October 2006 Mr T.K., at whose home Mr Shamkhan Banzhayev had stayed several times, was questioned. He stated that at the material time a group of armed men under the command of the Yamadayev brothers had been stationed in Vedeno.","50.On 21 and 22 October 2006 Mr M.Kh. and Mr U.M., former bodyguards of Mr Shamkhan Banzhayev, were questioned, but provided no new information.","51.On 23 November 2006 the investigators suspended the proceedings. The applicant was informed of that decision.","52.On 21 September 2017 the investigators\u2019 superior overruled the decision to suspend the proceedings and informed the applicant.","53.On 25 October 2017 the investigation was suspended again, before being resumed again on 28 September 2018.","54.From the documents submitted it appears that the investigation is still ongoing.","55.For a summary of the relevant domestic law, see Abuyeva and Others v.Russia (no. 27065\/05, \u00a7\u00a7 165-68, 2 December 2010), and Aslakhanova and Others v. Russia (nos. 2944\/06 and 4 others, \u00a7\u00a7 43-84, 18December 2012)."],"156":["7.The applicant was born in 1963 and is detained in Paola.","8.The police initiated their investigations in respect of the applicant on the basis of a statement made by a certain G.R.E, who had been, together with his partner S.M., stopped and searched at the Malta International Airport on their arrival on 11 August 2003. In one of their bags, the police found almost three kilograms of cocaine and 7,151 ecstasy pills.","9.On 11 or 12 August 2003 G.R.E. was questioned by the police without the assistance of a lawyer. In his statement, G.R.E. stated that he was afraid to name the person who had instructed him to carry the drugs to Malta. However, he indicated that such person was of Russian nationality.","10.On 12 August 2003 G.R.E. gave a second statement to the police, without the assistance of a lawyer, where he indicated that the drugs were delivered to him by a person who he knew as \u201cMark Stephens\u201d. He also stated that \u201cMark Stephens\u201d was Maltese and had a mother and two brothers who lived in Malta; one of his brothers ran a private school. G.R.E. also said that, prior to August 2003, on the instructions of \u201cMark Stephens\u201d, he came to Malta to collect a substantial amount of money which he had to deliver to \u201cMark Stephens\u201d in Spain. G.R.E. said that on that occasion he had met V.S., who told him that he had known \u201cMark Stephens\u201d for a very long time and that, together, they were entering into a partnership to purchase a club in Spain.","11.On 13 August 2003 G.R.E. confirmed his second statement on oath before the inquiring magistrate (during the inquiry relating to the in genere as known in Maltese law). The applicant claimed that G.R.E. had not been assisted by a lawyer on that occasion, while the Government gave contradictory versions on this point.","12.On 30 November 2004, consequent to an arrest warrant issued by the Maltese authorities, the applicant was arrested and detained in Spain on suspicion of having conspired in the trafficking of cocaine, ecstasy and cannabis. On 9 September 2005 the applicant was extradited to Malta to stand trial on charges of drug trafficking.","13.On 10 September 2005 the applicant gave a statement to the police. No lawyer was present during the interrogation. A further statement was given on the following day. The applicant stated that he had a sister and a brother who ran a private school and that they, as well as his mother, lived in Malta. He confirmed that he knew G.R.E., who used to drink in his bar which he was leasing in Zaragoza, Spain, called \u201cMountain Side Inn\u201d. He also declared that it was A.W. who supplied G.R.E. with the drugs.","14.On the same day the applicant was charged before the Court of Magistrates as a Court of Criminal Inquiry with having conspired in dealing in prohibited substances in breach of the Dangerous Drugs Ordinance and the Medical and Kindred Professions Ordinance, Chapters 101 and 31 of the Laws of Malta respectively.","15.During the committal proceedings before the Court of Magistrates, on 20September 2005, G.R.E. testified that the \u201cMark Stephens\u201d he knew, and who had given him instructions, owned a restaurant in Spain called \u201cMountain Side\u201d but was not present in the courtroom. G.R.E. claimed that what he had told the police had been fabricated because the inspector told him that he was facing thirty years imprisonment if he did not cooperate.","16.On 23 September 2005, V.S. also gave evidence during the committal proceedings and confirmed that he had once been asked by his friend Mark Stephens \u2013 whom he identified as the person charged [the applicant] \u2013 to pick up G.R.E. from the airport and to take care of him. He also confirmed that he and the applicant were going to take a business together in Spain with another English person, and that he actually handed a sum of money to G.R.E. to pass on to the applicant.","17.On 17 April 2006, a bill of indictment was issued and the applicant was put on trial by jury before the Criminal Court.","18.During the trial G.R.E. changed his version. He denied that the applicant was \u201cMark Stephens\u201d and said that a certain A.W. used the name of \u201cMark Stephens\u201d. In this connection, in his summing up to the jury, the judge stated, interalia, as follows: \u201cThe prosecution is asking you to consider that [the pre-trial] statement confirmed on oath as true. It is also asking you to find the accused\u2019s guilt on the basis of that statement confirmed on oath before Magistrate X. Legally he is perfectly entitled to do so, whether you do so or not that is a question of fact which is up to you to decide, but when the prosecution tells you irrespective of what he said here, irrespective of what he said before the magistrate in the compilation of evidence, if you decide to believe his first statement confirmed on oath before Magistrate X and you accept that as the truth then on the basis of that statement you can convict the accused. Legally he is correct, factually it depends on you whether you are prepared to accept that first statement on oath.\u201d","19.In his statement of defence the applicant raised the issue of the admissibility of the statements made by G.R.E. before the trial. The defence also maintained that G.R.E. was a liar and that his credibility was at issue.","20.On 28 June 2007 the Criminal Court observed that it was not in a position to address those pleas in a specific and concrete way, but that it could only limit itself to stating that it would be guided, in deciding whether or not to admit any such evidence, by the relevant provisions of law and principles accepted by the Maltese courts, such as ensuring that an accused was given a fair hearing and that due process, as interpreted by the Constitutional Court and the European Court of Human Rights, was observed.","21.From the records of 3 November 2008 it appears that the applicant did not object to the distribution to the jurors of his own statement, nor did he object to the distribution to the jurors of the statement which G.R.E. gave on oath before the inquiring magistrate (see paragraph 11 above). G.R.E. also gave evidence on oath (see paragraph 18 above) and the applicant cross\u2011examined him. V.S. and the inspector also gave evidence on oath and a confrontation between G.R.E. and both witnesses ensued. The applicant cross\u2011examined V.S. who had stated that the applicant had introduced him to G.R.E. A number of other witnesses were also heard.","22.By a judgment of 5 November 2008 the Criminal Court found the applicant guilty of having conspired for the purpose of committing an offence in breach of the provisions of the Ordinances cited above, and specifically of dealing illegally in cocaine and ecstasy pills and of having promoted, constituted, organised and financed such conspiracy. It sentenced the applicant to twenty\u2011five years\u2019 imprisonment and to a fine of 60,000euros (EUR) and ordered him to pay costs.","23.On 21 November 2008 the applicant appealed against that judgment before the Court of Criminal Appeal, requesting the latter to revoke the first\u2011instance judgment. In so far as relevant, his grievances may be briefly summed up as follows: there was a wrong interpretation and application of the law regarding the difference between impeaching the witness and believing him in whole or in part, or not at all; the first court\u2019s direction to the jury \u201cthat the statement [of G.R.E.] could be used to convict was a misdirection to the absolute detriment of the appellant\u201d; there was a procedural defect in the summing up which constituted a violation of the law and had a bearing on the verdict; and there was an irregularity in the proceedings regarding the law of evidence which was detrimental to the accused.","24.By a judgment of 24 June 2010 the Court of Criminal Appeal confirmed the applicant\u2019s guilt and sentence rejecting his grounds of appeal one by one.","25.In particular, the Court of Criminal Appeal took account of G.R.E.\u2019s second statement to the police and his sworn statement before the inquiring magistrate. In both statements, he had indicated that the drugs were delivered to him by a person who he knew as \u201cMark Stephens\u201d. The court also noted that, subsequent to those statements, during the committal proceedings before the Court of Magistrates, and during the trial by jury, G.R.E. had stated and indicated that the applicant was not the \u201cMark Stephens\u201d that the same G.R.E. had mentioned in his sworn statement previously.","26.The Court of Criminal Appeal also noted that although in his testimony of 20 September 2005 G.R.E. had stated that the \u201cMark Stephens\u201d he knew was not in the courtroom, the applicant had indicated in his statement to the police of 11 September 2005 that he knew G.R.E. Further, in the same testimony of G.R.E of 20 September 2005, he had indicated that the \u201cMark Stephens\u201d he knew owned a restaurant in Spain called \u201cMountain Side\u201d and the applicant had, on 11 September 2005, stated that he was indeed leasing a bar in Zaragoza, Spain, called \u201cMountain Side Inn\u201d.","27.The Court of Criminal Appeal referred to other factors upon which the jurors could have relied to conclude beyond reasonable doubt that the applicant was the \u201cMark Stephens\u201d to whom G.R.E. had referred to in his second statement, as well as to conclude that the applicant was guilty of the offence with which he was accused: Firstly, in his second statement G.R.E. stated that \u201cMark Stephens\u201d was Maltese and had a mother and two brothers who lived in Malta, one of the brothers ran a private school. Indeed, albeit his other sibling was a female, the applicant had admitted that he had a brother who ran a private school and that they, as well as his mother, lived in Malta. Secondly, V.S., to whom G.R.E. had referred in his second statement, gave evidence on 23 September 2005 and confirmed that he had once been asked by his friend \u201cMark Stephens\u201d \u2013 whom he identified as the applicant \u2013 to pick up G.R.E. from the airport and take care of him.V.S. had also confirmed that the applicant and himself were going to enter into business together, and with another person in Spain and that he had handed a sum of money to G.R.E. to deliver it to the applicant.","28.In the Court of Criminal Appeal\u2019s view the facts of the case were relatively simple: \u201cOn 11 August 2003 the police stopped and searched G.R.E. and S.M. on their arrival from London. In one of their luggage three packets containing a total of 2,988.2 grams of cocaine of around 70% purity were found, and two packets containing a total of 7,151 pills containing MDMA (ecstasy) were also found. G.R.E. made two statements to the police. In his first statement he said that he was afraid to mention the person who had instructed him to carry the drugs to Malta, saying that he was Russian. In his second statement he said that it was Mark Stephens who, it has been established, was the applicant. He confirmed his second statement on oath before the duty magistrate\u201d and concluded that in terms of Section30A of Chapter 101 of the Laws of Malta such statement was admissible provided that it was given voluntarily (see relevant domestic law).","29.In view of the above considerations, the Court of Criminal Appeal held that the existence of an agreement for the importation of drugs to Malta was beyond doubt. This was clearly evidenced from G.R.E.\u2019s sworn statement and from the evidence subsequently given, namely that ofV.S. The mode of action for the importation and delivery of drugs was also spelt out and described by G.R.E. (in his second statement to the police on 12August 2003 and the sworn statement on 13 August 2003), namely, that the drugs were delivered to him by a person he knew as \u201cMark Stephens\u201d. Consequently, the jury\u2019s verdict was both legal and reasonable.","30.On 9 May 2012, the applicant filed an application before the Civil Court (First Hall) in its constitutional competence, alleging inter alia, violations of Article 6 \u00a7\u00a7 1 and 3 (c) on account of (himself) not having been assisted by a lawyer prior to the police interrogation and on account of the use of statements during his trial, which had been made in the absence of a lawyer, by G.R.E. (while the latter was experiencing drug withdrawal symptoms). He also complained that the judge hearing the criminal trial was utterly biased when he failed to direct the jurors to treat the evidence tendered by G.R.E. with caution on the basis of Article 639(3) of the Criminal Code. In his view the same judge directed the jury into accepting G.R.E.\u2019s statement, which was later confirmed on oath, rather than merely interpreting and directing the jury as to the relevant law on the admissibility of the statements of G.R.E.","31.On 20 September 2012 G.R.E. testified in these proceedings and claimed that when he gave his statement to the police he had been sick and needed drugs and alcohol. He wanted to get out of the depots at all costs.","32.His evidence was rebutted by that of two police officers. One of the police officers testified that G.R.E. appeared lucid and was not suffering from withdrawal symptoms, and that it was G.R.E. who had opened up telling the facts and that it had barely been necessary to put questions to him.","33.By a judgment of 29 April 2013 his claims were rejected.","34.The court noted that the applicant was questioned by the police on 10September 2005. It had transpired that prior to his extradition to Malta the applicant had had the opportunity to consult a lawyer. He also consulted his lawyer in connection with constitutional redress proceedings which he undertook in 2004 in respect of his extradition. Moreover, the applicant spoke to his lawyer the day before he was questioned by the police. Thus, it was evident that while in police custody, the applicant had had access to his lawyer prior to questioning. The content of such exchanges was irrelevant, what mattered was the fact that the applicant had been given the opportunity to consult a lawyer and could therefore have sought legal advice. Although the applicant had been duly cautioned, he chose to reply to the questions put to him by the police. Furthermore, the applicant gave testimony during his trial and confirmed his statement to the police. Moreover, the applicant had not admitted to any wrongdoing during the interrogation.","35.On the applicant\u2019s second complaint, the court held that the applicant had no right to have G.R.E.\u2019s (a third person) statements excluded from his own trial on the basis of the judgment in Salduz v. Turkey ([GC], no.36391\/02, ECHR 2008). That right belonged to G.R.E. and not to the applicant. Moreover, there had been no allegation that G.R.E. had given the statements under duress or ill\u2011treatment. G.R.E. himself had filed constitutional redress proceedings contesting his two statements solely on the basis that he did not have legal assistance prior to the police interrogation. However, by a judgment of 27 June 2012, (which became final in the absence of an appeal) the court had dismissed his complaint (see paragraph 48 below).","36.As to the applicant\u2019s allegation that G.R.E. had been experiencing drug withdrawal symptoms when he gave his statements to the police, thus shedding doubt on the veracity of G.R.E.\u2019s statements, the court held that the applicant had ample opportunity to raise this grievance during the criminal proceedings. However, he had failed to do so. Moreover, there was no evidence that G.R.E. had not been mentally fit to participate in the police interrogation and to give evidence on oath before the duty magistrate. It was true that the forensic psychologist declared that inmates, who made use of drugs, experienced drug withdrawal symptoms which produced psychological problems and that under certain circumstances an inmate could become more vulnerable. However, the applicant had failed to submit information with regard to G.R.E.\u2019s condition and as to whether the latter had been mentally fit, or not, to give evidence before the inquiring magistrate.","37.The court held that G.R.E. gave evidence during the trial by jury and that the applicant had ample opportunity to cross\u2011examine him on the contents of the two statements since these were filed in the court file. Further, during the trial, a copy of G.R.E.\u2019s statement released before the inquiring magistrate was distributed to the jurors and the applicant\u2019s defence counsel had not objected to this, despite being free to question G.R.E. about such statement.","38.Whilst it was true that after his declaration on oath before the inquiring magistrate, G.R.E. had sought to exculpate the applicant, this did not mean that the jurors had to believe the subsequent version of the facts. Having read G.R.E.\u2019s testimony, the court found that the jurors were fully justified in not believing what he had said when he gave evidence during the subsequent committal proceedings, and eventually during the trial by jury, opting instead to believe G.R.E.\u2019s previous versions.","39.As to his last complaint, it considered that it was not for the constitutional jurisdictions to decide on the application or not of Article639(3) of the Criminal Code. Having read the judge\u2019s address, the court considered the applicant\u2019s assertion to be untrue as the presiding judge had simply explained what the law provided.","40.On an unspecified date the applicant appealed mainly in so far as the complaint related to the use of G.R.E.\u2019s statements.","41.By a judgment of 9 December 2013, the Constitutional Court rejected the applicant\u2019s appeal and confirmed the first\u2011instance judgment.","42.The Constitutional Court considered that it was not for it to re\u2011assess the evidence and that the applicant had ample opportunity to cross\u2011examine the witness \u2013 who was present and gave testimony also at trial \u2013 in front of the jurors, which he did. Further, he had not objected to the distribution to the jurors of the statements by G.R.E.","43.According to the Constitutional Court, the right to legal assistance during the pre\u2011trial stage safeguarded the individual being questioned and not any third party subject to criminal proceedings.","44.Further, the fact that G.R.E. confirmed his second statement on oath before the inquiring magistrate weakened the applicant\u2019s claim that G.R.E. had released the statement under pressure or duress. The presence of a magistrate or a judicial officer \u2013 who was independent from the Police \u2013 sufficed for the statement to be considered as having been given freely and voluntarily and to show that it had not been extorted or obtained by means of threats or intimidation, or of any promise or suggestion of favour.","45.The above considerations also weakened the applicant\u2019s allegation concerning the effect of withdrawal symptoms. Moreover, the allegation concerning G.R.E.\u2019s state was a question of fact that had to be decided upon in criminal proceedings and not in constitutional redress proceedings. The evidence tendered by the forensic psychologist was of a generic nature and did not specifically relate to G.R.E.\u2019s mental state at the time of questioning. As to the police officer\u2019s evidence to the effect that G.R.E. had been hospitalised immediately after he had given the statements, the Constitutional Court considered that the evidence of this officer could have been brought before the Criminal Court as there was no legal impediment, yet the applicant had failed to do so. Moreover, no evidence was adduced about G.R.E.\u2019s mental health on admission to hospital, thus there was no evidence that he had been suffering from withdrawal symptoms.","46.In relation to the applicant\u2019s argument that the jury had been misdirected by the judge in relation to the statements of G.R.E. the Constitutional Court considered that the trial judge had explained the law to the jurors and that he had stated in clear terms that the prosecution\u2019s request to find guilt on the basis of G.R.E.\u2019s sworn statement was legally correct whilst factually it depended on whether the jurors accepted that statement as the truth. In its view the judge had been careful not to influence the jurors. In any event these were matters to be dealt with during the criminal appeal proceedings, and in fact the Court of Appeal had already rejected the applicant\u2019s grievance.","47.On an unspecified date G.R.E. instituted constitutional redress proceedings complaining that he had not had legal assistance at pre\u2011trial stage.","48.At first\u2011instance, on 27 June 2012 the Civil Court (First Hall) in its constitutional competence held that G.R.E.\u2019s guilt was not found solely by reference to his statements to the police. He was caught at the Malta International Airport with a substantial amount of drugs in his possession. Apart from his first and second statements to the police, G.R.E. had also made a sworn statement before the Court of Magistrates. G.R.E. persisted in his statement of admission of guilt notwithstanding the fact that the Criminal Court had warned him of the legal consequences of such statements and allowed him a short time to retract it. G.R.E. had also not appealed against the finding of guilt but had limited his appeal to other dispositions of the Criminal Court\u2019s judgment.","49.The judgment became final in the absence of an appeal.","50.By Act III of 2002 the Maltese Parliament introduced the right to legal assistance at the pre-trial stage. However, the law only came into force in 2010 by means of Legal Notice 35 of 2010. Prior to this Legal Notice Maltese law did not provide for legal assistance during the pre\u2011trial investigation and specifically during questioning, whether by the police or by a magistrate in his investigative role. Before questioning, however, suspects would be cautioned, that is, informed of their right to remain silent and that anything they said could be taken down and produced as evidence. At the time no inferences could be drawn by the trial courts from the silence of the accused at this stage.","51.Statements taken by the police could be confirmed on oath before the Court of Magistrates, in which case the person was entitled to be assisted by a lawyer.","52.Article 661 of the Criminal Code (Chapter 9 of the Laws of Malta) on confessions not to prejudice third parties provides that:","\u201cA confession shall not be evidence except against the person making the same, and shall not operate to the prejudice of any other evidence.\u201d","53.Article 639(3) of the Criminal Code reads as follows:","\u201cWhere the only witness against the accused for any offence in any trial by jury is an accomplice, the Court shall give a direction to the jury to approach the evidence of the witness with caution before relying on it in order to convict the accused.\u201d","54.Section 30A of the Dangerous Drugs Ordinance (Chapter 101 of the Laws of Malta), on statements that may be admitted as evidence provides that:","\u201cNotwithstanding the provisions of article 661 of the Criminal Code, where a person is involved in any offence against this Ordinance, any statement made by such person and confirmed on oath before a magistrate and any evidence given by such person before any court may be received in evidence against any other person charged with an offence against the said Ordinance, provided it appears that such statement or evidence was made or given voluntarily, and not extorted or obtained by means of threats or intimidation, or of any promise or suggestion of favour.\u201d"],"157":["6.The first applicant was born in 1996 and lives in Kaunas. The second applicant was born in 1995 and lives in Panev\u0117\u017eys.","7.At the time that the application was lodged with the Court, the first applicant was a secondary-school student at the Kaunas School of Applied Arts. He graduated from that school in June 2017. He is an openly gay man in a same-sex relationship with the second applicant.","At the time of the lodging of the application with the Court, the second applicant was a theology student at the Vytautas Magnus University in Kaunas. In August 2015 he discontinued his theology studies and instead began studying psychology at the same university.","Both applicants are members of the LGL Association.","8.As can be seen from the material provided and relied on by the Government \u2013 namely, copies of public posts on the Facebook pages of the first and the second applicants \u2013 on 31December 2013 the second applicant publicly posted on Facebook that on that day he had \u201cmet for the first time\u201d the first applicant. On 26March 2014 the first applicant publicly posted on his Facebook account, asking: \u201cDo I have any homophobic \u2018friends\u2019 who are against LGBT people?\u201d On 17 May 2014 the first applicant publicly posted a summary of the main arguments cited by homophobic commenters (such as the assertion that homosexuality was a disease and a perversion that was against the laws of nature). On 30 May 2014 the first applicant stated in a public post that he had excluded homophobic persons from his Facebook \u201cfriends\u201d. On 4 July 2014 the first applicant announced in a public post that he was \u201cin a relationship\u201d with the second applicant.","1.The photograph in question, and the comments and reaction that followed","9.On 8December 2014 the first applicant posted a photograph on his Facebook page depicting a same-sex kiss between him and the second applicant. The picture was accessible not only to his Facebook \u201cfriends\u201d, but also to the general public.","As stated by the applicants in their application to the Court, the intention of posting the picture publicly was to announce the beginning of the applicants\u2019 relationship.","10.According to the applicants, \u201cthe picture went viral online and it received more than 2,400 \u2018likes\u2019 and more than 800 comments\u201d. They also submitted that the majority of online comments had been aimed at inciting hatred and violence against LGBT people in general, while numerous comments had directly threatened the applicants personally. The posted comments, of which the Lithuanian law-enforcement authorities were notified afterwards, included the following (the Lithuanian has not been corrected):","\u201cI\u2019m going to throw up \u2013 they should be castrated or burnt; cure yourselves, jackasses \u2013 just saying\u201d (Vimtelsiu, kastruot ar degint tokius, pasigydykit asilai, tik sakau)","\u201cIf you were born perverts and have this disorder, then go and hide in basements and do whatever you like there, faggots. But you will not ruin our beautiful society, which was brought up by my mum and dad, where men kiss women and do not prick their skewers together. I genuinely hope that while you are walking down the street, one of you will get your head smashed in and your brain shaken up\u201d (Jei jau gimet isgamom ir turit liga, eikit pasislepe rusiuose ka norit ir darykit pyderastai. Bet musu grazios visuomenes, kuria uzaugino mama ir tetis ir vyrai buciuoja moteris, o ne badosi spagom tarpusavyje \u2013 nesugadinsit. As labai nuosirdziai tikiuosi kad kazkuriam is jusu einant gatve atitrenks galva kazkas ir atpurtys smegeneles)","\u201cThese faggots fucked up my lunch; if I was allowed to, I would shoot every single one of them\u201d (Supisti pietai per siuos pyderastus, leistu visus iki vieno issaudyciau)","\u201cScum!!!!!! Into the gas chamber with the pair of them\u201d (Urodai!!!!!! I duju kameras abu)","\u201cHey fags \u2013 I\u2019ll buy you a free honeymoon trip to the crematorium.\u201d (Ei pyderai medaus menesio kelione nupirksiu nasaram y krematoriuma)","\u201cFucking faggots \u2013 burn in hell, garbage\u201d (Kurwa pydarai blt, dekit pragare siuksles)","\u201cInto the bonfire with those faggots ...\u201d (Pydarastus and lauzo ...)","\u201cFor fuck\u2019s sake ... You fucking gays \u2013 you should be exterminated FU\u201d (Eik tu nahui... G\u0117jai j\u016bs supisti, jus naikint nx)","\u201cBecause you\u2019re faggots, and children can see photos such as these, it\u2019s not only the Jews that Hitler should have burned\u201d (Tuom kad jus pydarasai esat ir vaikai mato tokias ft issigimeli, gal\u0117jo Hitleris netik \u017eydus deginti)","\u201cBurn the faggots, damn it\u201d (Sudeginti piderastus ku*va)","\u201cFags! Into the bonfire those bitches!\u201d (Gaid\u017eiai! Ant lau\u017eo kurvas!)","\u201cFuck you \u2013 damn it, kill yourselves, faggots\u201d (Eik to nahui krw nusizudykit piderai)","\u201cSatan, please allow me to smash their heads into a wall\u201d (\u0160etone pra\u0161au duok man leidim\u0105 dau\u017eys tokiem galvas \u012f sienas)","\u201cOh for fuck\u2019s sake \u2013 get the fuck out of Lithuania and don\u2019t shame us, you fucking capon; we should put your head under a car and into the noose, you fucking faggot\u201d (Oj kurwa pidaras pusk is lt nedares gedos wisgaidy tu krw jabanas galwa po masina pakist ir sniurais suka tu kwr jabanas)","\u201cKill ...\u201d (Zudyt ...)","11.On 9December 2014 the photograph was reposted by LGBT-friendly Vilnius (an organisation upholding the rights of LGBT people) on its public Facebook page with the following comment:","\u201cTwo young men, who live in Kaunas \u2013 Pijus and Mangirdas \u2013 today caused a big commotion on Lithuanian Facebook pages, provoking a huge number of \u2018likes\u2019, \u2018shares\u2019; and hateful comments ... Why? The reason is simple: a kiss. Nothing more, nothing less.","We asked them what prompted their choice to make this nice photograph public.","Here is Pijus\u2019s wise reply: \u2018We hope that maybe some lonely person, who is being condemned by others, will see this photograph and will no longer feel lonely. Maybe, [standing] on the roof of some house, or on the edge of a window sill or balcony, he or she will move to a safer spot, where nothing will threaten him or her and his or her life will not be just a statistic.\u2019","Thank you Pijus, and thank you, Mangirdas! Your courage inspires and gives hope.","Let\u2019s express our support by sharing [the link to the post carrying the photograph] and expressing our opinion.\u201d","12.On 10December 2014 the LGL Association shared the photograph on its Facebook page and publicly posted the following:","\u201cWe are happy about the bravery of these young men. Now they need support \u2013 more than ever \u2013 here on Facebook, and also in their everyday life. So, is it just a kiss? What is the reaction of Lithuanians who avoid being labelled as homophobes? Please pay attention to their opinions expressed in the comments.\u201d","13.Subsequently, on 12December 2014, the LGL Association stated in a public post on its Facebook page:","\u201cHomophobia seeps through not only anonymous comments on Internet portals but also on Facebook, where people post under their true names. We did as we said we would: the meanest comments and their authors have already been denounced to the law-enforcement institutions. Do express your opinion respectfully and responsibly ...","There are thousands of comments and thousands of people making them. You cannot catch them all, but this is not our purpose. It is more important to show society that [making such hateful comments] is against the law and that hatred cannot be tolerated.\u201d","14.In that context, the Government also provided a screenshot of the first applicant\u2019s Facebook page from December 2016, where he had written \u201cTwo years ago we were causing a commotion\u201d and provided a link to the photograph in question.","15.In June 2016 LGBT-friendly Vilnius shared on its Facebook page both applicants\u2019 impressions of the Baltic Pride event. The applicants expressed their satisfaction that the parade had gone well and had passed off without incidents such as the throwing of eggs or disruptions staged by \u201csupporters of traditional values\u201d. The two applicants had marched at the forefront of the parade, carrying the Lithuanian flag.","2.The attempts to have criminal proceedings opened","16.On 10December 2014 both applicants lodged a written request with the LGL Association, of which they were both members (see paragraph7 above), asking it to notify, in its own name, the Prosecutor General\u2019s Office of the hateful comments left under the photograph posted on the first applicant\u2019s Facebook page. They submitted that the comments were not only degrading, detrimental to their dignity and incited discrimination, but also \u201cincited violence and physically violent treatment\u201d. The comments were therefore frightening both to homosexual people in general and to the applicants in particular. The applicants considered that such actions were criminal and merited pre-trial investigation. They reasoned in their request that their wish for the LGL Association, as a non-governmental organisation that defended the public interest, to act on their behalf was based on the applicants\u2019 view that the Lithuanian legal system did not provide any additional procedural guarantees for alleged victims of homophobic hate crimes. The applicants also wrote that they feared retaliation by the authors of the online comments should they personally lodge such a complaint with the prosecutor. They also believed that were they to lodge a personal complaint it would not be treated seriously by law-enforcement officials.","17.On 12 December 2014 the LGL Association lodged a complaint with the Prosecutor General\u2019s Office, asking that criminal proceedings be initiated regarding thirty-onecomments posted on the first applicant\u2019s public Facebook page (see paragraph 10 above). The complaint was lodged on the basis of Article 170 \u00a7\u00a7 2 and 3 of the Criminal Code (\u201cIncitement against any national, racial, ethnic, religious or other group of people\u201d \u2013 see paragraph30 below)and Article19 \u00a71(3) of the Law on the Provision of Information to the Public, which prohibits publishing in the media information that incites hatred or violence against a group of people because of their sexual orientation (see paragraph33 below). It was indicated in the complaint that the comments in question had ridiculed and expressed contempt for individuals of homosexual orientation, and incited discrimination, hatred and violence against them. The LGL Association also added a hard copy of the photograph in question and the comments posted below it.","18.On 30December 2014 a prosecutor at the Klaip\u0117da district prosecutor\u2019s office took the decision not to initiate a pre-trial investigation regarding the LGLAssociation\u2019s complaint. Having examined the thirty-one comments referred to by the LGL Association, the prosecutor noted that of those thirty-one comments, twenty-seven people had written one comment each, and two people had written two comments each. For the prosecutor, this was easy to establish, since the commenters had placed those comments under their personal profiles. The prosecutor held that in order to assess whether the comments in question were of a criminal nature, it was necessary to take into account not only the comments as such, but also the context in which those comments had been written. Given that the comments had been written by different people, each comment had to be assessed individually, and not collectively. It was also essential to establish whether those comments constituted an active attempt (aktyvus siekis) to incite other people to disseminate degrading comments and to incite them to commit violence. The prosecutor then considered that active attempts required \u201csystematic action\u201d. In the applicants\u2019 case, however, that criterion had not been met because various individuals had written only one or two comments, which was not enough to be considered as constituting a systematic attempt to incite hatred or violence against people distinguishable by their sexual orientation. From this it followed that the objective element of a crime, as established under Article 170 \u00a7\u00a7 2 and 3 of the Criminal Code, was absent. Furthermore, the fact that the \u201cexpression of opinion\u201d in question had been non-systematic and isolated meant that there had been no subjective element \u2013 namely, that of direct intent \u2013 in the crime in question, because by posting the comments the authors thereof had merely been \u201cexpressing their opinion\u201d, instead of seeking to incite hatred or violence against individuals who were distinguishable by their sexual orientation. Even though the authors of the comments had reacted \u201cunethically\u201d in respect of the image portrayed in the photograph of the two applicants, such \u201cimmoral behaviour\u201d did not constitute an element of a crime under Article 170 \u00a7\u00a7 2 and 3 of the Criminal Code. The prosecutor lastly considered that the Supreme Court was of a similar view, in view of the fact that by a ruling of 18 December 2012 in case no.2K-677\/2012 it had acquitted a person who had posted a comment stating that gay people were \u201cperverts\u201d and \u201cbelonged in a psychiatric hospital\u201d. In that case the Supreme Court had considered that such a comment, even though unethical, had not actively incited hatred or discrimination against homosexual people (for a more detailed description see paragraphs 39-41 below). The prosecutor thus found that his conclusion was in line with the Supreme Court\u2019s practice in such cases \u2013 that is to say, that comments of such a tenor were unethical but not criminal.","19.On 9January 2015 the LGL Association lodged an appeal against the prosecutor\u2019s decision with the Klaip\u0117da City District Court. The LGL Association pointed out that the prosecutor had taken the decision not to prosecute on two grounds: firstly, that the actions of the people who had commented on the above-mentioned Facebook post had not been systematic in nature, and secondly, that in respect of cases concerning similar situations (that is to say, comments of a similar nature) the authorities routinely considered that no crime had been committed. The LGL Association noted that in more than 90% of cases in Lithuania, hatred was promoted through the electronic sphere \u2013 for example, by the creation of hatred-promoting groups on the Facebook social network or on Internet forums. The LGL Association also relied on Lithuanian court decisions of 2014 at district court (that is to say, first-instance) level which had found that a single comment had been sufficient to find the author thereof guilty of a crime under Article170 \u00a72 of the Criminal Code (see paragraphs 50-51 below). The LGL Association thus disputed the prosecutor\u2019s conclusion that such actions had to be systematic in nature in order for criminal liability to arise. The LGL Association argued that the question of whether or not comments could be deemed to be systematic in nature could be taken into account when assessing the gravity of a crime and imposing a punishment on the author of such comments, but it did not amount to a constitutive element of that crime. As to the applicants\u2019 case in particular, it also argued, inter alia, that several terms contained in the comments had promoted the infliction of physical harm and even the killing of members of the group in question (for example, advocating burning and extermination), which had indicated their authors\u2019 \u201cparticular attitude\u201d (ypating\u0105 nusiteikim\u0105) towards people of non-traditional sexual orientation and had clearly intentionally articulated a call for violence. On this point the LGL Association relied on the Court\u2019s judgment in Vejdeland v. Sweden (no.1813\/07, \u00a7\u00a7 54-55, 9February 2012), in which it had held that Sweden had not breached the rights of the applicants in that case by prosecuting them, even if their statements had not called for violence. Lastly, the LGL Association argued that if the comments under the photograph of the applicants on Facebook had been only \u201cexpressing [the authors\u2019] opinion\u201d, it was totally unclear what could be considered to constitute \u201cpublicly ridiculing, expressing contempt, urging hatred or inciting discrimination\u201d within the meaning of Article170\u00a72 of the Criminal Code. That norm of criminal law was destined to become a \u201cdead letter\u201d, which the law-enforcement authorities chose not to apply \u201cby giving unjustified preference to freedom of expression, or perhaps owing to other motives which, although not related to law, had an influence on law\u201d.","20.By a ruling of 23January 2015, the Klaip\u0117da City District Court dismissed the LGL Association\u2019s appeal. The court shared the prosecutor\u2019s view that the authors of the impugned comments \u201chad chosen improper words\u201d (pavartojo netinkamus \u017eod\u017eius) to express their disapproval of homosexual people. Even so, the \u201cmere use of obscenities\u201d (tik necenz\u016brini\u0173 \u017eod\u017ei\u0173 pavartojimas) was not enough to incur criminal liability under Article170\u00a72 of the Criminal Code. The court considered that in making such comments their authors had not been inciting others to discriminate against or hate homosexuals.","21.The District Court also pointed out that the first applicant\u2019s Facebook page, where the picture of the two men kissing had been posted, had been public, visible and accessible not only to his acquaintances and friends, but also to individuals who were completely unknown to him. Therefore, a person who posted in the public sphere (vie\u0161oje erdv\u0117je) a picture \u201cof two men kissing\u201d should and must have foreseen that such \u201ceccentric behaviour really did not contribute to the social cohesion of those who had different views or to the promotion of tolerance\u201d (ekscentri\u0161kas elgesys tikrai neprisideda prie visuomen\u0117je kitokias pa\u017ei\u016bras turin\u010di\u0173 asmen\u0173 tarpusavio supratimo bei tolerancijos ugdymo). The owner of a social network profile on which such an image was posted, by exercising his freedom to express his convictions and freedom to promote tolerance, had to take into account the fact that that freedom was inseparable from the obligation to respect the views and traditions of others. According to the court, \u201cthe majority of Lithuanian society very much appreciate[d] traditional family values\u201d (itin vertina tradicin\u0117s \u0161eimos vertybes). Indeed, that view was enshrined in Article 38 of the Constitution, which read that the family should be the basis of society and the State, and that marriage should be undertaken on the basis of the free mutual consent of a man and a woman. The District Court also referred to a passage from the Constitutional Court\u2019s ruling of 28September 2011 (see paragraph34 below), and from that ruling inferred that \u201cthe family, as a constitutional value, is a union between a man and a woman\u201d. Lastly, the court stated that criminal proceedings were an ultima ratio measure and that they should therefore be initiated only when serious grounds and all the elements of a crime existed. This was not the situation in the case at hand. In its view, the decision not to prosecute the authors of the comments had been reasonable.","22.The LGL Association lodged an appeal on 29January 2015. It pleaded that certain comments had been clearly meant to incite violence, thus directly constituting an objective element of a crime under Article 170 \u00a7\u00a7 2 and 3 of the Criminal Code. The LGL Association noted that even milder public comments, although concerning racial or ethnic discrimination, had been considered by the Lithuanian courts to constitute a crime. The LGL Association also argued that the subjective element of a crime, that is to say direct intent, should be assessed only after the identification of the alleged perpetrators and during subsequent criminal proceedings, not at the time that a procedural decision was taken regarding whether to start a pre-trial investigation or not. Responding to the District Court\u2019s statement that the majority of Lithuanian society very much appreciated \u201ctraditional family values\u201d, the LGL Association underlined that a criminal offence could not be justified by the views and traditions of either an individual or the majority of society. In that connection the LGL Association also relied on the Court\u2019s case-law, which held that freedom of expression was applicable not only to \u201cinformation\u201d or \u201cideas\u201d that were favourably received or regarded as inoffensive or as a matter of indifference, but also those that offended, shocked or disturbed. The LGL Association lastly referred to the Court\u2019s judgment in Balsyt\u0117-Lideikien\u0117 v.Lithuania (no.72596\/01, \u00a782, 4November 2008) to the effect that one right, such as the freedom of speech of the authors of the comments, could be restricted if such a restriction was necessary because that speech was offensive.","23.By a final ruling of 18 February 2015 the Klaip\u0117da Regional Court dismissed the LGL Association\u2019s appeal, upholding the prosecutor\u2019s and the District Court\u2019s reasoning, including that court\u2019s arguments regarding the applicants\u2019 \u201ceccentric behaviour\u201d. The Regional Court also underlined the fact that the first applicant had posted the photograph in question publicly and had not restricted it to his friends or \u201clike-minded people\u201d (bendramin\u010diams), even though the Facebook social network allowed such a possibility. Such an action could therefore be interpreted as constituting \u201can attempt to deliberately tease or shock individuals with different views or to encourage the posting of negative comments\u201d. The court also considered that, in the absence of objective and subjective elements of a crime under Article 170 of the Criminal Code, it would constitute a \u201cwaste of time and resources\u201d, or even an unlawful restriction of the rights of others [that is to say, Internet commenters\u2019] to open criminal proceedings. Lastly, criminal proceedings constituted an ultima ratio measure, and not all actions merited them.","3.Subsequent developments, as presented by the parties","24.In their application to the Court the applicants stated that the proceedings before the domestic courts had generated a lot of interest in both the local and international media. As a result, they had experienced an increased level of attention and hostility both in the private and in the public spheres. The first applicant had been summoned by his secondary-school headmaster, who had requested him \u201cnot to disseminate his ideas\u201d. The second applicant had been summoned by the dean of the university theology faculty, who had requested him to change his course of study because his \u201clifestyle did not correspond with the faculty\u2019s values\u201d. On several occasions the applicants had been verbally harassed in public places. They had also received a number of threatening private messages in their social network mailboxes. None of those incidents had been reported to the police, because the applicants had been steadily losing their faith in the effectiveness of the law-enforcement system in Lithuania in the light of their unsuccessful attempts to launch a pre-trial investigation in connection with the initial hateful comments.","25.For their part, the Government referred to a number of educational programmes at the first applicant\u2019s secondary school aimed at raising children\u2019s understanding of such issues as respect, solidarity and non-discrimination. They also could not speculate on the reasons for the second applicant changing his course of study. The Government lastly pointed out that the applicants themselves had never attempted to persuade the domestic authorities to initiate any kind of pre-trial investigation regarding any alleged subsequent discriminatory acts.","A.Report by the European Commission against Racism and Intolerance","56.The European Commission against Racism and Intolerance (ECRI) on 7June 2016 published a report on Lithuania. The report noted that in addition to incidents of racist hate speech and violence, which were mainly directed at historical minorities, Lithuania was experiencing a problem involving the widespread incitement of homophobic\/transphobic hatred and acts of violence against LGBT people. The growing level of intolerance against sexual minorities had remained largely unchecked. Furthermore, discrimination against LGBT people persisted in many areas of social life.","57.As to homophobic\/transphobic hate speech, including that posted on the Internet, the ECRI report specifically noted:","Homo-\/transphobic hate speech","\u201c22.In 2012, out of the 263 recorded incidents of hate speech, 47 were of a homo-\/transphobic nature. In 2011, there had been 208 such incidents. According to human rights organisations met by ECRI\u2019s delegation, homo- and transphobic hate speech, verbal harassment and inappropriate comments are common amongst the general public, as well as in the media and political discourse, resulting in LGBT persons feeling constantly discriminated against and excluded in day-to-day life. LGBT NGOs report a general atmosphere of intimidation, which results in LGBT persons not feeling confident to be open about their identity. Homo-\/transphobic hate speech has also been described by civil society organisations as creating an atmosphere in which violence against LGBT persons becomes increasingly accepted. ...\u201d","Hate speech on the Internet","\u201c25.In Lithuania, hatred is often incited in cyberspace through online comments, blogs, social networks and other fora. Some 90% of reported hate speech cases ... are occurring in this sphere. Human rights activists monitoring hate speech in Lithuania noticed a trend towards creating web-pages hosted on US servers to post hate speech and attempt to circumvent Lithuanian anti-hate speech legislation. The sites are usually not restricted or shut down and remain available to be viewed also by Lithuanian Internet users.","26.Homo- and transphobic hate speech is widespread on the Internet, in particular in online fora and in comments sections of news portals, rather than the articles themselves. Online hate speech goes largely unchecked and unpunished...","27.The Internet is also used to make threats of violence. There have been several cases of threats against members of minorities, such as Poles and Jews. On numerous occasions, threats of violence were also made against LGBT persons or groups, especially through social networks\u201d.","58.As to measures taken by the Lithuanian authorities, the ECRI report noted:","\u201cMeasures taken by the authorities","\u201c28.ECRI considers hate speech particularly worrying because it is often a first step in the process towards actual violence. Appropriate responses to hate speech include law enforcement channels (criminal and administrative law sanctions, civil law remedies) but also other mechanisms to counter its harmful effects, such as self-regulation, prevention and counter speech. The Lithuanian authorities have taken various measures to combat hate speech, but more needs to be done.","- Criminal law, administrative law and civil law responses","29.The Prosecutor General\u2019s Office reported that out of the thirty six pre-trial investigations under Article170 of the Criminal Code on incitement against a national, racial, religious or other group carried out in 2010, 23cases were transferred to the courts. 13 persons were found guilty and sentenced. In 2014, out of 106 cases reported to the law enforcement authorities, 43 resulted in prosecution.","...","31.... The woman, who in 2009 had posted homophobic comments on a news website ... was convicted by the Kaunas District Court on 9 March 2012 of incitement to hatred under Article170 \u00a72 of the Criminal Code. However, on 18December 2012, the Supreme Court overturned the verdict and found that her words had been merely inappropriate, but did not constitute incitement to hatred. The Supreme Court was also of the opinion that the woman\u2019s homophobic comments were provoked by the nature of the pro-LGBT event in front of the Seimas and the \u201ceccentric conduct\u201d of the protesters which violated the constitutionally protected traditional family values. Moreover, the Supreme Court emphasised that, in its view, criminal prosecution of homophobic hate speech should only be a measure of last resort [see paragraphs 39-43 above]. In spite of the Supreme Court judgement mentioned above, a Vilnius district court, in January 2013, found a person guilty of encouraging mockery, defiance, discrimination and physical violence against a group of people because of their sexual orientation and ordered him to pay a fine ... for having posted on Facebook: \u201cWhat we need is another Hitler to exterminate those fags because there\u2019s just too many of them multiplying.\u201d","32.ECRI would like to point out to the Lithuanian authorities that in a general climate of homo-\/transphobia, firm, proportionate and appropriate actions, including criminal prosecutions, need to be taken to combat hate speech.","33.A number of threats of violent attacks have been investigated by the prosecutorial authorities, but human rights defenders met by ECRI\u2019s delegation criticise that some cases were dismissed by the courts on the basis that the threats did not appear sufficiently likely to be carried out.","...","Training of law enforcement officials and members of the judiciary","35.In 2012, 37 judges and 15 prosecutors were trained on legal and social aspects in the fight against discrimination. Furthermore, the Lithuanian authorities trained a total of 350 police officers on the fight against racism and on promoting tolerance in general, but have not yet carried out planned trainings for them on relevant provisions of the Criminal Code, notably [Article 170], which had been part of one of ECRI\u2019s priority recommendations ... However, the authorities informed ECRI that an agreement between the Ministry of Interior and the Office for Democratic Institutions and Human Rights (ODIHR) of the OSCE to provide assistance for such trainings, was concluded.","36.ECRI recommends that the authorities fully investigate racist and\/or homo-\/transphobic threats and ensure that a lack of probability does not constitute an obstacle for convicting a perpetrator. Furthermore, the training programme for police officers on the fight against racism and promotion of tolerance should be expanded and the planned training sessions on relevant provisions of the Criminal Code be conducted. ECRI also recommends that the authorities carry out an evaluation of the impact the trainings had with a view to ensuring that further elements necessary to enable law enforcement officials and members of the judiciary to fight racist and homo-\/transphobic hate speech, including threats, more effectively are identified and included in future training programmes.","Monitoring and combatting online hate speech","37.The previously existing Special Investigation Division within the Prosecutor General\u2019s Office, which also dealt with hate crime, was dissolved in 2010, mainly due to lack of finance. The functions of this division have been allocated to two specialised prosecutors in the Prosecutor General\u2019s Office and some 20 prosecutors at district level. The authorities also informed ECRI\u2019s delegation that cybercrime investigation units have been established at 10 district police headquarters. These units are tasked to investigate criminal offences committed on the Internet, including racist and homophobic hate speech. Furthermore, the Cybercrime Law came into effect on 1January 2015 and is the new legal basis for being able to close websites and Internet fora in cases where criminal content is discovered.","38.Lithuania also participated in the EU programme Safer Internet, under which the Inspector for Journalist Ethics monitors online content. In 2014, 102 texts were reviewed and in 48 cases, expert advice was sought. Most of the investigated texts were not found in the news sections themselves, but in the readers\u2019 comments sections. The largest group concerned racist hate speech, followed by anti-LGBT hate speech. The Inspector also organised eight training sessions for journalists in 2014.\u201d","59.The ECRI report then specifically tackled the issue of homophobic\/transphobic violence:","\u201cHomo-\/transphobic violence","53.All LGBT and human rights activists met by the ECRI delegation agreed that homo- and transphobic violence is a growing problem in Lithuania. There is, however, no full official data on such acts. According to LGBT representatives, this is mainly due to a fear of revealing one\u2019s LGBT identity and lack of trust in the willingness of the police to investigate such crimes. According to the 2013 EU LGBT Survey, 39% of the 821 respondents in Lithuania said they were physically\/sexually attacked or threatened with violence, but only 16% reported incidents of hate-motivated violence to the police. A monitoring report prepared by a local NGO reveals nine instances of violence against LGBT persons that occurred between January and November 2013, including one case of extreme physical violence, four cases of assault, and four cases of damage against property. The authorities, on the other hand, did not record any cases for 2013.","54.The scale of the problem is also underestimated because of lack of awareness among police officers of the importance to register homo-\/transphobic motivations as such. An example is the case of a young man who was beaten up in a bar in Vilnius, after having been approached by the perpetrator with the words \u2018Are you gay?\u2019 When he reported the case, the police were unwilling to record it as a homophobic attack and in the course of collecting testimony from the victim an investigator allegedly implied that he had been attacked because he provoked the perpetrator with unwanted advances of a sexual nature.","55.Fear of living openly with one\u2019s LGBT identity increases further as a result of violent attacks against public figures who do so, in particular if the bias-motivation is not formally acknowledged and the perpetrators are not apprehended and convicted. On 24July 2014, for example, an explosive device was thrown at the openly homosexual singer R.K. during a concert in the village of Linksmakalnis. This was not the first attack against the singer. In February 2013, eggs were thrown at him during a concert, hitting him in the face [see also paragraph 54 in fine above]. In early July 2014, the partner of a transsexual artist was severely beaten by two attackers who also burned his face. They used homophobic insults prior to the attack.\u201d","60.As to measures taken by the Lithuanian authorities to combat hate crimes, the ECRI report specifically noted:","\u201cMeasures taken by the authorities","56.According to the OSCE\/ODHIR hate crime statistics, two cases were prosecuted per year in 2011, 2012 and 2013. These six court cases, with five convictions achieved, cover 40% of the 15 cases recorded by the police during this period.","57.The authorities report that within the framework of the Inter-Institutional Action Plan on the Promotion of Anti-discrimination for 2012-2014, training courses were organised for police officers, prosecutors and judges on racist and homo-\/transphobic violence. Although an evaluation of these trainings is not available, there seems to be a growing trend to investigate incidents of racist violence more effectively, including attacks against property. In a case of vandalism against a synagogue, for example, the perpetrator was speedily identified, prosecuted and sentenced to payment of a fine. The same cannot be said, however, for homo-\/transphobic acts of violence ...","58.The police service has an internal complaints mechanism, which also deals with complaints made by persons alleging to be victims of acts of racist and\/or homo-\/transphobic violence by police officers. There is, however, no independent specialised police complaints mechanism, which could be approached by individuals whose lack of trust in the police service prevents them from lodging a complaint.","59.ECRI recommends further training for police officers, prosecutors and judges on how to deal with racist, and in particular homo-\/transphobic acts of violence. This should include improved procedures for recognising bias-motivations, as well as confidence-building measures between the police and minority representatives and LGBT groups. ECRI also recommends the creation of an independent police complaints service that will be tasked to investigate, inter alia, allegations of racist and\/or homo-\/transphobic violence committed by law enforcement officials.\u201d","61.As to other topics specific to Lithuania, including legislation on the protection of minors against harmful impact and the position taken by the Inspector, the ECRI report also noted:","\u201cLegislation: Restrictions of public information and awareness-raising","90.Current legislation limits some types of public activities of LGBT persons. [The] Law on the Protection of Minors against the Detrimental Effect of Public Information ... bans \u2018public defiance of family values\u2019, which includes public information which \u2018expresses contempt for family values, (or) encourages the concept of entry into a marriage and creation of a family other than that stipulated in the Constitution of the Republic of Lithuania and the Civil Code of the Republic of Lithuania\u2019, which defines marriage as between a man and a woman.","91.This law has been applied on several occasions recently. In May 2014, following complaints from the Lithuanian Parents\u2019 Forum and a group of conservative MPs to the Ministry of Culture and the Lithuanian University of Educational Sciences (LEU), the children\u2019s book Gintarin\u0117 \u0161irdis (Amber Heart) by author [N.D.], which had been published six months previously by the LEU, was withdrawn from bookshops. The book contains fairy tales featuring members of socially vulnerable groups, such as same-sex couples, Roma, and disabled people, and aims at promoting tolerance and respect for diversity among children. Following the complaints, the LEU explained the withdrawal of the book by suddenly describing it as \u2018harmful, primitive and biased homosexual propaganda\u2019. Furthermore, the Office of the Inspector of Journalistic Ethics concluded that two fairy tales that promote tolerance for same-sex couples are harmful to minors. The Inspectorate\u2019s experts deemed the stories in violation of the Law on the Protection of Minors because they encourage \u2018the concept of entry into a marriage and creation of a family other than stipulated in the Constitution of the Republic of Lithuania and the Civil Code of the Republic of Lithuania\u2019. The experts also considered the stories to be \u2018harmful, invasive, direct and manipulative\u2019.","92.In September 2014, fearing a potential violation of the Law on Protection of Minors, Lithuanian TV stations refused to broadcast a TV spot promoting tolerance towards LGBT people which had been prepared by an NGO for the campaign Change It. Subsequently, this decision was confirmed by the Inspector of Journalistic Ethics on the grounds that the TV spot seemed to portray a same-sex family model in a positive light, which the Inspectorate considered to have a negative impact on minors and to be in violation of the law.\u201d","62.Most recently, on 6June 2019 ECRI published conclusions on the implementation of its recommendations in respect of Lithuania, subject to interim follow-up:","\u201c2.In its report on Lithuania (fifth monitoring cycle), ECRI recommended that the Lithuanian authorities, as part of the Inter-Institutional Action Plan for 2015-2020 on Non-Discrimination, set up an inter-institutional working group to develop a comprehensive strategy to tackle effectively the problem of racist and homo-\/transphobic hate speech. This group should include the relevant authorities, as well as civil society organisations, including, amongst others, representatives of the LGBT community.","In November 2016, the Lithuanian Ministry of Interior created a working group on hate crime monitoring, analysis and evaluation. ECRI has been informed by the authorities that this working group consists of experts from the Ministry of Interior, including the Ministry\u2019s Information Technology and Communications Department, the Police Department, the Criminal Police Bureau, the Prosecutor\u2019s Office, the Government Department for National Minorities, the Law Institute and civil society organisations, including the Human Rights Monitoring Institute, the Lithuanian Centre for Human Rights and representatives of the Jewish community and the LGBT community. The group met twice in 2016 and 2017. No meetings took place in 2018 and uncertainties remain as to the agreed tasks of the working group. Some activities, however, continued. On 8March 2018, a seminar took place organised by the OSCE\/ODIHR and the EU-FRA, jointly with the Ministry of Interior, for civil society members of the working group on improving monitoring of hate crime and the collection of related data in Lithuania in line with international standards.","ECRI was also informed that the Prosecutor\u2019s Office, the Office of the Inspector for Journalist Ethics and the Ministry of Interior started the implementation of a joint 20-months project entitled \u2018Strengthening responses to hate crimes and hate speech in Lithuania\u2019. The project aims to ensure effective investigations, prosecutions and adequate sentencing in hate crime cases; raise awareness among national authorities about the impact of hate crime and hate speech; understand the needs of vulnerable communities; address the problem of under-reporting and intensify efforts to counter on-line hate speech.","Furthermore, in 2017, 12police officers took part in the OSCE\/ODIHR\u2019s \u2018Training against Hate Crimes for Law Enforcement (TAHCLE)\u2019 programme and in 2018 the Police Commissioner General ordered the training of some 200 law enforcement officers on hate crime issues at the Lithuanian Police School and its partner institutions. Such training for police officers is implementing measures foreseen in the Action Plan for the Promotion of Non-discrimination (2017-2019). While ECRI recognises the positive intentions contained in the Action Plan, its overall level of coordination does not appear to be well developed, which is also highlighted by the fact that the Action Plan was adopted by only one Ministry, namely the Ministry of Social Security and Labour, and shows no evidence of being based on an integrated interagency strategy.","In spite of some useful steps taken by the authorities, ECRI concludes that the various measures do not yet constitute a comprehensive strategic approach to effectively tackle the problem of racist and homo-\/transphobic hate speech. The inter-institutional working group has also not arrived at developing such a strategy. ECRI encourages the Lithuanian authorities to continue and scale up its efforts to prevent and combat hate speech and hate crime and to overcome fragmentation by making effective use of the existing working group.","ECRI considers that this recommendation has been partially implemented.\u201d","B.Surveys by the European Union Agency for Fundamental Rights and the Eurobarometer","63.On 2 April 2012 the European Union Agency for Fundamental Rights launched, online, a study entitled the \u201cEuropean Union survey of discrimination and victimisation of lesbian, gay, bisexual and transgender persons\u201d. The results showed that in Lithuania 61% of Lithuanian LGBT respondents had felt discriminated against or harassed on the grounds of their sexual orientation within the previous twelve months \u2013 the highest proportion in the European Union (EU), where the overall average stood at 47%. Furthermore, 27% of Lithuanian respondents had felt discriminated against while at work within the previous twelve months \u2013 the second highest number in the EU, where the overall average stood at 19%. The average number of violent incidents against LGBT people in Lithuania was 525 per 1,000 respondents \u2013 again, the highest proportion in the EU.","64.On 1October 2015 the European Commission published the results of the Eurobarometer survey \u201cDiscrimination in the EU in 2015\u201d. 27,718 respondents from the EU (including 1,004 respondents from Lithuania) took part in the survey that was conducted from 30May to 8June 2015. Lithuanian respondents indicated that the most widespread forms of discrimination were on the grounds of sexual orientation (57%), age (50%), and gender identity (46%).","50% of all Lithuanian respondents stated that gay, lesbian and bisexual people should not necessarily have the same rights as heterosexual people (the EU average was 23%). 71% of Lithuanians who participated in the study would not support same-sex marriages being legalised throughout Europe (the EU average was 33%). 59% would feel uncomfortable about having an LGB person in the highest elected political position (the EU average was 21%); 44% of Lithuanians would feel uncomfortable about having an LGB person as one of their colleagues at work (the EU average was 13%); 66% disapproved of sexual relationships between two persons of the same sex (the EU average was 27%); 47% of Lithuanians did not agree that school lessons and material should include information about diversity in terms of sexual orientation (the EU average was 27%).","C.The case-law of the Court of Justice of the European Union","65.On 7November 2013, in Joined Cases C\u2011199\/12 to C\u2011201\/12, the Court of Justice of the European Union (CJEU), when interpreting Directive 2004\/83EC in connection with questions concerning minimum standards relating to the conditions for the granting of refugee status or subsidiary protection status, including membership of a particular social group, held:","\u201cWhen assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.\u201d","66.On 5June 2018, in Case C-673\/16, the Grand Chamber of the CJEU delivered a preliminary ruling, holding that in a situation in which an EU citizen had made use of his freedom of movement by moving to and taking up genuine residence in a member State other than that of which he was a national, and, while there, had created or strengthened a family life with a third-country national of the same sex to whom he was joined by a marriage lawfully concluded in the host member State, Article 21 \u00a7 1 of the Treaty on the Functioning of the European Union, which provided for EU citizens\u2019 right to move and reside freely within the territory of the member States, had to be interpreted as precluding the competent authorities of the member State of which the EU citizen was a national from refusing to grant that third-country national a right of residence in its territory on the ground that its law did not recognise marriage between persons of the same sex."],"158":["5.The applicants were born in 1975 and 1972, respectively. At the material time they were living together in \u0136ekava parish. The first applicant, a businessman, has several previous convictions. On 18 March 1999 he was convicted of intentional destruction of property and sentenced to three years\u2019 imprisonment, suspended for two years. On 5March 2008 he was convicted of tax evasion and money laundering and sentenced to community service. A restriction on carrying out unspecified business activities for a period of three years was also imposed on him.","6.The parties disagree as to the background of criminal proceedings against A.P. and I.V., two officers of the Finance Police Department of the State Revenue Service (Valsts ie\u0146\u0113mumu dienesta Finan\u0161u policijas p\u0101rvalde \u2013 the \u201cVIDFPP\u201d), an authority specifically tasked with preventing and investigating criminal offences in the field of taxation. It can be seen from the material in the case file that on 10September 2008 the first applicant, having obtained information from another individual, met those officers with a view to receiving their \u201chelp\u201d in covering up a fictitious tax evasion and money-laundering scheme. That scheme had allegedly been intended to discover corrupt officers. On an unspecified date, the Bureau for the Prevention and Combating of Corruption (Korupcijas nov\u0113r\u0161anas un apkaro\u0161anas birojs \u2013 \u201cthe KNAB\u201d) started an operational investigation and gave guidance to the first applicant in that respect.","7.On 13 November 2008 the first applicant took part in an undercover operation (operat\u012bvais eksperiments) that had been organised by the KNAB and had been approved by the prosecutor\u2019s office. The KNAB provided the first applicant with marked banknotes in the amount of 6,800Latvian lati (LVL \u2013 approximately 9,685 euros (EUR)) for the purpose of that operation; the first applicant handed over the marked banknotes to both officers as \u201cpayment\u201d for their \u201cservices\u201d.","8.As a result, A.P. and I.V. were arrested on the spot and criminal proceedings were opened against them for corruption and tax\u2011evasion\u2011related offences. The first applicant gave testimony to the KNAB about the fictitious tax evasion and money-laundering scheme, in the covering up of which those officers had allegedly been involved.","9.On 6 May 2009 the criminal case was referred to the prosecution and on 18May 2009 charges were brought against A.P. and I.V. On 8 June 2010 the criminal case was sent to the first-instance court.","10.On 16 June 2009 the first applicant, after the search at his home (see paragraph 23 below) and after having been taken to the premises of the VID FPP, retracted his testimony against A.P. and I.V. in a complaint addressed to the Prosecutor General, which he drafted in the presence of several VID FPP officers (see paragraph 33-35 below). That complaint was forwarded to two prosecution departments. One department was dealing with the criminal case against the two police officers (see paragraph 54 et seq. below) and the other was responsible for examining complaints about operational activities (see paragraph 42 below).","11.On 28 June 2009 the first applicant informed the Prosecutor General that the VID FPP officers had compelled him to retract his testimony on 16June 2009 (see paragraph 39 below). He maintained his initial testimony against A.P. and I.V. (see paragraph 8 above). It appears that at some point the criminal case against A.P. and I.V. was split into two cases.","12.There is no information about the case against I.V., but the first applicant gave testimony before the first-instance court against A.P. The first-instance and the appellate courts examined the circumstances surrounding the retraction of his testimony on 16 June 2009, questioned witnesses and examined a certain audio recording in that regard (see paragraph 35 below). The domestic courts found that the first applicant\u2019s initial testimony (see paragraph 8 above) was credible; it was used to convict A.P.","13.On 20April 2017 the Supreme Court, by a final decision, convicted A.P. of bribery and sentenced him to three years\u2019 imprisonment.","14.At the same time, the Supreme Court sent the criminal case against A.P. on tax-evasion related charges back to the appellate court for fresh examination. Those proceedings are currently pending.","15.On 4 June 2009 an investigator of the VID FPP, I.S., instituted criminal proceedings concerning tax evasion and money laundering. Allegedly, an organised group of twenty-five individuals \u2013 involved in a large tax evasion and money-laundering scheme using more than two hundred fictitious companies \u2013 had been discovered. It was suspected that the first applicant was a member of that group (see, for more details, paragraphs 20-21 below).","16.According to the Government, those criminal proceedings were instituted on the basis of information obtained during an operational investigation that had been ongoing since 1 June 2007.","17.The applicants firmly denied those allegations and insisted that the first applicant had had no connection with the companies involved. The first applicant asserted that his name had been added without any justification to a list of suspects in an ongoing criminal investigation with which he had had no connection.","18.On 15 June 2009 several judges of the Riga City Zieme\u013cu District Court (R\u012bgas pils\u0113tas Zieme\u013cu rajona tiesa) examined requests for the issuance of search warrants in respect of nineteen different premises in connection with the above-mentioned criminal proceedings. A search warrant for the applicants\u2019 home was issued. In that search warrant, a reference was made to the nature of the alleged offences (see paragraph 15 above), as described by the VID FPP investigator in her request for the warrant. More than six dozen companies were specifically listed: four companies central to the suspected tax evasion and money-laundering scheme and sixty-two other companies. An investigating judge examined the criminal case material, which had been submitted to him, and ruled that there were sufficient grounds to consider that specific documents and items, which related to the listed companies (accounting documents, powers of attorney, bank cards, digital passwords, and company stamps), as well as \u201cother documents and items that may serve as relevant evidence in the case\u201d might be located in the applicants\u2019 home. He ordered the search and seizure.","19.On 16 June 2009 the applicants\u2019 home was searched, and the first applicant was taken into police custody and taken to the premises of the VID FPP (see paragraphs 23-32 and 33-36 below). The first applicant alleged that he had been \u201cinfluenced and forced\u201d to retract the testimony he had given in the criminal proceedings against A.P. and I.V. The Government denied that allegation.","20.On 18 June 2009 the first applicant was officially declared a suspect in connection with the criminal proceedings which had been instituted on 4June 2009. It was suspected that the first applicant had organised the impugned scheme and that in 2008 and 2009 more than LVL 5,000,000 (approximately EUR 7,000,000) in proceeds had been laundered using bank accounts of four companies. The first applicant was remanded in custody. On 27 November 2009 he was released on bail. Several restrictive measures were imposed on him (a prohibition on leaving the country without prior authorisation, and a prohibition on approaching certain individuals).","21.On 7 July 2009 a prosecutor supervising the criminal proceedings concerning tax evasion and money laundering, on instructions issued by a superior prosecutor, reviewed the actions taken by the VID FPP. He found that the criminal proceedings had been instituted in accordance with the law. More than six dozen companies had been involved in the scheme under investigation, which had been set up for the purposes of tax evasion and money laundering on a large scale. Individuals involved in that scheme had been drawing up taxable business documents for transactions that had not actually taken place, without paying taxes, and had been receiving payments in respect of such transactions. In order to change ownership of those funds and to receive them, fictitious agreements, including loans, had been concluded. The scheme had been operated by three inter-related criminal groups comprising twenty-five individuals. On the basis of judicial warrants, nineteen searches had been carried out (two with the assistance of a special police anti-terrorism unit called Omega, owing to the potential dangerousness of those criminal groups) and, as a result, accounting documents, digital passwords and the stamps of more than two hundred fictitious companies had been seized. Eight persons had been officially declared suspects and two of them (including the first applicant) had been remanded in custody, while others had been released. The supervising prosecutor found no signs of unlawfulness in the investigative actions taken by the VID FPP officers.","22.On 12July 2011 all restrictive measures, which had been imposed on the first applicant in the course of the criminal proceedings against him, were revoked on the grounds that the time-limit for completing the pre-trial investigation had been exceeded. Those proceedings are currently pending before the VID at the pre-trial investigation stage. The Court has been provided with no further information in this regard.","23.On 16 June 2009 at 7 a.m. the Omega anti-terrorism unit, which consisted of at least four armed men, without prior warning entered the applicants\u2019 home through windows situated on the first and second floors. They located four people on the premises \u2013 both applicants and their friend, A.G., on the first floor and the second applicant\u2019s teenage daughter on the second floor.","24.Subsequently, five officers of the VID FPP entered the applicants\u2019 home, showed a search warrant to the applicants (after which they both signed it), and started a search at 7.30 a.m. The officers of the special police unit then left the applicants\u2019 home. The search was completed four and a half hours later, at noon. Both applicants and A.G. signed the search record in the capacity of persons who had been present, and made no remarks or comments in the relevant field of that search record. The search record also bore the first applicant\u2019s signature below a pre-typed text: \u201cI have received a copy of this record\u201d.","25.The second applicant\u2019s teenage daughter was pulled out of her bed by two officers of the special police unit; they immediately took her down to the first floor, without allowing her to dress.","26.All those present in the applicants\u2019 home, including the second applicant and her daughter, were placed on the ground with their faces against the floor. The first applicant\u2019s hands were tied behind his back. Somebody pushed the second applicant\u2019s head against the floor with his boot and put a firearm to it.","27.An officer of the VID FPP, S.S., subsequently took the first applicant aside into a bedroom and told him that this was a revenge for his testimony against A.P. and I.V. The first applicant was \u201cinfluenced and forced\u201d to retract the testimony he had given in the criminal proceedings against A.P. and I.V.","28.Nothing that related to the companies listed in the search warrant was seized during the search at the applicants\u2019 home. The first applicant had no connection whatsoever with the companies listed in the search warrant.","29.On 16 June 2009 the VID FPP requested assistance by the Omega anti-terrorism unit in carrying out searches in connection with the criminal proceedings concerning tax evasion and money laundering on a large scale. It had had reason to believe that it would face armed resistance and that important evidence (documents, digital passwords, electronic evidence and data carriers) might be destroyed. The Government stated that out of nineteen searches carried out in connection with those criminal proceedings, only two \u2013 including the search of applicants\u2019 home \u2013 had been carried out with the assistance of the special police unit.","30.On the first floor, two officers of the special police unit located both applicants and A.G. The officers instructed all three of them to lie down on the floor in the living room and tied the hands of the first applicant and A.G. behind their backs. No physical force was used. The first applicant\u2019s hands were untied so that he could sign the search warrant.","31.On the second floor, two officers of the special police unit located the second applicant\u2019s daughter. She was allowed to dress and was taken to the living room on the second floor. She was sat down on a sofa. No physical force was used.","32.During the home search many items were seized, namely, several plastic folders with legal and accounting documents including correspondence with banks, digital passwords, several laptops and hard drives, CDs and USB flash drives, eighteen stamps belonging to different companies, several cell phones and SIM cards, paper notebooks, postal receipts, and several applications to the relevant domestic register concerning the registration of new companies. Those items were listed in the search record, which was signed by all those present. No complaints or remarks were made. The second applicant was issued with a copy of that record (contrast with the document mentioned in paragraph 24 above).","33.After the search, the first applicant was taken to the premises of the VID FPP in Riga. The first applicant was arrested and a record of his arrest was drawn up by a VID FPP investigator, who had not participated in the search.","34.The first applicant alleged that he had been \u201cinfluenced and forced\u201d to retract the testimony that he had given (also again in the premises of the VID FPP) in the criminal proceedings against A.P. and I.V. The Government denied that allegation.","35.The first applicant alleged that the VID FPP officers had told him \u201cwhat to write\u201d in his complaint to the Prosecutor General with a view to his retracting his previous testimony. The Government disagreed. They submitted an audio recording and a transcript of a conversation between the applicant and several officers of the VID FPP. The parties disagree on the significance and interpretation of that recording for the purposes of the present case.","36.In the record made in respect of the first applicant\u2019s arrest, the following statement, made by the first applicant in the presence of his lawyer, was recorded:","\u201cI consider my arrest to be unjustified because items seized during the search do not belong to me. I was not given the possibility to explain the situation before I was arrested.\u201d","37.On 12February2010 the President of the Riga City Zieme\u013cu District Court examined the first applicant\u2019s complaint in respect of the search warrant of 15 June 2009. The first applicant alleged that there had been no legal grounds or justification to implicate him in those criminal proceedings and that the search had been unjustified. He had had no connection with the companies listed in the search warrant. The main suspects in those criminal proceedings had been unknown to him. He expressed doubts as to whether the investigating judge had verified all the criminal case material that had been submitted to him. The first applicant also criticised what he described as the cynical, rude and violent manner in which the VID FPP officers had carried out the search.","38.The President of the Riga City Zieme\u013cu District Court upheld the lawfulness of the search warrant and dismissed all complaints as follows:","\u201cHaving examined the complaint lodged by [the first applicant] and the [case] material in its entirety ... the President of [the Riga City Zieme\u013cu District Court] considers that the search warrant of 15 June 2009 by the investigating judge is justified and should be upheld for the following reasons.","...","It appears from the request by [investigator I.S.] and the accompanying documents, that the search and seizure of the documents and items that were listed in that request will facilitate the establishment of facts that are relevant for the criminal proceedings.","As can be seen from the search warrant, the investigating judge has not breached any provisions of the Criminal Procedure Law. His conclusion that there were grounds to carry out the search at [the applicants\u2019] home was justified. Accordingly, the President of [the Riga City Zieme\u013cu District Court] considers that [the first applicant\u2019s] complaint is unsubstantiated and must be dismissed.","[The first applicant] in his complaint alleges that the human rights and other procedural rights of those present during the search have been disregarded. The President of [the Riga City Zieme\u013cu District Court] considers that that fact cannot serve as grounds to consider that the search warrant of 15 June 2009 was unjustified.","Any complaints about allegedly unlawful actions taken by the [VID] FPP officers during the search must, under 337(2) of the Criminal Procedure Law, be submitted to the relevant investigating authority.","...","This decision is final and no appeal lies against it.\u201d","(a) Complaints by the first applicant","39.On 28 June 2009 the first applicant, while being held in custody, lodged a complaint with the Prosecutor General about allegedly unlawful actions on the part of the VID FPP officers. He alleged that all action taken by the VID FPP against him had been motivated by revenge, since he had helped to discover corrupt VID FPP officers and had cooperated with the KNAB. During the search of 16 June 2009, Officer S.S. had issued threats and passed on \u201cgreetings\u201d from the arrested VID FPP officers. He had also received further threats in the VID FPP premises. He had been forced to retract the testimony he had given against the two officers; Officer S.S. had dictated its content and had issued threats against him and his family. In his complaint he specified that he did not wish to retract the testimony that he had given against the two officers.","40.His complaint was forwarded to the Internal Security Bureau of the State police authorities (Valsts policijas Iek\u0161\u0113j\u0101s dro\u0161\u012bbas birojs), the body responsible for examining complaints against the State police authorities. However, as the first applicant\u2019s complaint had related to Officer S.S. of the VID FPP, they could not examine that complaint and forwarded it to the VID FPP.","41.On 21 July 2009 a director of the VID FPP issued the following reply, which was sent to the first applicant\u2019s home address and which the first applicant received only after his release from custody:","\u201cOn 15 July 2009 the Finance Police Department of the State Revenue Service received your 28 June 2009 complaint, which was addressed to the Prosecutor General. The information provided by you has been examined. The facts complained of have not been confirmed and no breaches have been found in the actions of the VID FPP officers during your arrest.\u201d","42.On 7 August 2009, in response to the first applicant\u2019s complaint of 16 June 2009 (see paragraphs 10 and 35 above), a prosecutor found no breaches of the Law on Operational Activities (Operat\u012bv\u0101s darb\u012bbas likums) in the actions of the KNAB officers.","43.On 23 November 2009 and 4 January and 9 February 2010 prosecutors at various levels examined complaints lodged by the applicants\u2019 lawyer that raised various issues pertaining to access to the criminal case material (the search warrant and search record), and the lawfulness and legality of the first applicant\u2019s arrest and of the reply by the VID FPP to the first applicant\u2019s complaint of 28 June 2009. Those complaints were dismissed. It was noted that (i) the search had been authorised by an investigating judge; (ii) the involvement of the special police unit had been justified (a prosecutor referred to sections 54 and 55 of the State Administration Structure Law (Valsts p\u0101rvaldes iek\u0101rtas likums) and to internal police regulations); and (iii) both applicants and A.G. had been present, and they had signed the search record and had made no objections. The first applicant had been issued a copy of the search record. The actions by the VID FPP officers had been justified and lawful. The prosecutors found no breaches of the Criminal Procedure Law (Krimin\u0101lprocesa likums). They concluded that the search had been lawful and justified.","44.On 5 March 2010 another prosecutor, upon a complaint by the first applicant, found no breaches of domestic law as concerns the search of 16June 2009; a reference was also made to the replies provided to his lawyer in that regard (see paragraph 43 above). The first applicant\u2019s allegation that the actions of the VID FPP had been motivated by revenge was dismissed as unfounded. No evidence that S.S. had physically or morally influenced the first applicant by issuing him oral threats had been discovered.","(b) Complaints by the second applicant as regards the search of 16 June 2009","45.On 29 June 2009 the second applicant lodged a complaint with the prosecutor\u2019s office regarding allegedly unlawful actions on the part of the VID FPP and the Omega officers. She also alleged that the first applicant\u2019s safety was under threat. The supervising prosecutor requested information from the State police authorities and the VID FPP in that regard. In particular, the State police authorities were asked to explain (i) whether the special police unit\u2019s assistance had been organised in a manner in accordance with law, and (ii) which legislative act had authorised its assistance. The VID FPP was further asked to explain whether the involvement of the Omega anti-terrorism unit had been necessary and justified, whether the VID FPP officers had carried out the search in accordance with law and whether Officer S.S. had participated in the search.","46.On 10 August 2009 the State police authorities provided their reply. According to the information at their disposal, the VID FPP had had reasons to suspect that the suspects might resist and obstruct investigative activities, including authorised searches. In order to avoid that, the special police unit\u2019s assistance had been necessary and it had authority to provide such assistance under its internal regulations. Taking into account sections 54 and55 of the State Administration Structure Law, which set out the general principles of cooperation between State authorities, it had been decided to assist the VID FPP.","47.On 12August 2009 the VID FPP provided its reply. According to the information at its disposal, the first applicant had had prior convictions dating back to 1999 and 2008. In 2007 the prosecution had placed him on a list of wanted persons. In total, the VID FPP had forwarded three criminal cases against him to the prosecution (for charges to be brought). Prior to the search, a preliminary observation of the applicants\u2019 home had indicated that: (i) it had been located in a remote area; (ii) it had only one road approaching the property; (iii) it had been surrounded by a two-metre-high fence (thus necessitating fast action in conducting the search); (iv) it had been guarded by two dogs; (v) several men had been present and they might have been armed; (vi) it had been planned to make an arrest; and (vi) it had been possible that those present might offer armed resistance. Taking into account (i) the first applicant\u2019s personality, (ii) the possibility that important evidence could be found, (iii) the fact that its destruction was not permissible, and (iv) the results of the preliminary observation, it was decided to seek the assistance of the Omega anti-terrorism unit in entering the applicants\u2019 home. Officer S.S. had participated in the search. No complaints had been made by those present during the search.","48.On 24 August 2009 and, 22 January and 25 February 2010 prosecutors at various levels examined complaints lodged by the second applicant. She raised various issues pertaining to access to the criminal case material (the search warrant and search record) and the lawfulness and legality of the search of 16 June 2009. Those complaints were dismissed. The prosecutors noted that (i) the search had been authorised by an investigating judge; (ii) the involvement of the special police unit had been justified; (iii) both applicants and A.G. had been present and they had signed the search record and had made no objections. The first applicant had been issued a copy of the search record. The actions by the VID FPP and the Omega officers had been justified and lawful. The prosecutors found no breaches of the Criminal Procedure Law. They concluded that the search had been lawful and justified. In the last reply, dated 25 February 2010, a note was included to the effect that that reply constituted a final decision as concerns the issues determined therein.","49.On 19 March 2010 another prosecutor, upon a request by a superior prosecutor, examined the second applicant\u2019s complaint about the actions of the officers of the special police unit during the search. Prior to providing his response, he received an internal report, dated 12 March 2010, which he had ordered from the relevant department of the State police authorities. That report can be summarised as follows. According to the internal regulations of the Omega anti-terrorism unit, its officers were to provide assistance to law-enforcement authorities, if those authorities faced difficulties in: (i) solving \u201cserious\u201d and \u201cvery serious\u201d criminal offences, (ii)arresting suspects and (iii) finding and seizing material evidence. The special unit had provided assistance to the VID FPP in carrying out the search in the applicants\u2019 home in order to: (i) avoid the destruction of evidence, and (ii) arrest suspects, because an initial operational investigation had revealed that one suspect held several registered firearms at his home (see paragraph 88 below) and was armed and there was a guard dog on the premises. Moreover, the personality of one of the suspects indicated that he might offer armed resistance and destroy evidence. In his reply to the second applicant, the prosecutor found that the Omega officers had acted in accordance with internal regulations and taking into account the circumstances. They had not breached the domestic law. The reply was open to further review by a superior prosecutor; no such further review took place.","(c) Complaints by the second applicant as regards her personal belongings","50.On 10 December 2009 the second applicant lodged a request that several items (one item of stationary and one portable computer, three mobile phones, two hard drives, a laser printer, a black photo camera and a memory card) which belonged to her, but which had been seized during the search, be returned to her.","51.On 3 February 2010 the VID FPP investigator refused that request because at that stage of the pre-trial investigation \u201cit was not established that those items were unnecessary as evidence.\u201d The second applicant was informed of that decision and of the fact that that decision was open to review by a supervising prosecutor at any stage of the pre-trial investigation.","52.On 3 February 2012 the second applicant lodged a complaint with a supervising prosecutor, requesting that several items (see paragraph 50 above as well as a portable computer bag and a men\u2019s briefcase), which belonged to her, but which had been seized during the search, be returned to her and that the refusal of 3 February 2010 be quashed.","53.On 9 March 2012 the supervising prosecutor dismissed that complaint stating that the refusal was lawful. There were no grounds to quash that refusal and to return those items to the second applicant. The second applicant was informed that she could request once again that those items be returned to her. In view of the fact that a search had been carried out at the first applicant\u2019s home and that the case material contained indications that those items might belong to another individual (see paragraph 36 above), she had to substantiate that those items belonged to her and it was not sufficient to merely list those items as being hers. That reply was open to further review by a higher-ranking prosecutor. No such further review was undertaken.","54.From December 2009 until April 2010 the prosecutor responsible for the criminal proceedings against the two police officers carried out numerous investigative activities related to the first applicant\u2019s complaints about the events of 16 June 2009. She questioned the applicants, A.G. and various officers of the VID FPP (including those who had participated in the search), and requested information from the VID FPP. A cross-examination between the first applicant and Officer S.S. was carried out. Both of them agreed to undergo a polygraph test, the results of which indicated that neither of them had lied.","55.On 7 May 2010 the prosecutor separated the material relating to the criminal case against the two police officers and opened new criminal proceedings in respect of the events of 16 June 2009 in so far as the first applicant\u2019s allegations were concerned.","56.On 15 February 2011 the first applicant was declared a victim in connection with those criminal proceedings.","57.On 28 March 2011 a prosecutor examined two audio files that had been recorded by an unidentified VID FPP official on 16 June 2009 (see paragraph 35 above), and the transcripts thereof.","58.According to the Government, the proceedings in respect of the events of 16 June 2009 are currently pending before the prosecution authorities at the pre-trial investigation stage. According to the applicants, these proceedings have been terminated owing to the expiry of statute of limitations, which was ten years.","59.On 14 September 2006 the Council of Europe Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL) adopted the Third Round Detailed Assessment Report on Latvia, following a visit to Latvia from 8 until 24 March 2006 by a team of assessors from the International Monetary Fund. The report contained the following observations:","\u201cGeneral Situation of Money Laundering and Financing of Terrorism","48.Latvia is vulnerable to being used for money laundering purposes due to number of factors including its geographical location. It is a major transit point for trade between Western Europe and the CIS countries using its ports on the Baltic Sea and the land borders with other Baltic States, Russia and Belarus ...","49. Financial transactions relating to proceeds of crime have been identified passing through the Latvian financial system. The high volume of transactions creates a challenge for financial institutions in confirming the true purpose of the financial transactions. The main difficulty is that by the time the money arrives in Latvia it is difficult to identify it as the proceeds of crime ...","...","51. In general, the recorded crime rate in Latvia is relatively low ... The major criminal activities identified by the authorities as predicate offences for money laundering are drug trafficking, trafficking in human beings, tax evasion and VAT fraud ... There are ongoing allegations of corruption in the public sector, including some highly-publicised cases ...\u201d","60.On 5 July 2012 MONEYVAL adopted the Fourth Round Mutual Evaluation Report on Latvia, following a visit by experts from MONEYVAL and the Financial Action Task Force from 9 until 13 May 2011. The report contained the following observations:","\u201c1.2. General Situation of Money Laundering and Financing of Terrorism","8. Latvia\u2019s geographical location, with its ports on the Baltic Sea and the land borders with other Baltic States, makes it a major transit point. The current risks and vulnerabilities in relation to ML and FT that are faced in Latvia are considered to be connected with the \u201cshadow economy\u201d and phishing schemes abroad. ML in Latvia is related mainly to illegal proceeds generated by:","61.More recently, on 4 July 2018, MONEYVAL adopted the Fifth Round Mutual Evaluation Report on Latvia, following a visit by an assessment team from 30 October until 10November 2017. They made the following observations (footnotes omitted):","\u201cML\/TF Risks and Scoping of Higher-Risk Issues","Overview of ML\/TF Risks","ML Threats","4. The national risk assessment (NRA) identifies illicit economic activities \u2011 particularly corruption and bribery (including embezzlement of public funds), fraud (including through fictitious companies), and tax evasion \u2013 as Latvia\u2019s primary money laundering (ML) threats ...","5. The NRA identifies illegal economic activities as another major ML threat. White collar crime has exceeded other more conventional proceeds-generating offences, such as drug trafficking, in terms of threat. Indeed, the top three predicate offences in the period under review were tax evasion, fraud (including fictitious companies), as well as corruption and bribery (including embezzlement of public funds).","6. Organised crime is also a factor with a substantial impact on the overall ML risk situation in Latvia. According to the NRA, ML threats that arise from international organised criminal groups (OCGs) are rated as high. The proximity and strong financial ties of Latvia with members of the Commonwealth of Independent States (CIS) facilitates the access of regional OCGs to the financial system of Latvia and the international one subsequently. OCGs from CIS are known to exercise influence on the domestic ones. In fact, Latvia hosts approximately 80 OCGs ..., out of which only 10-12 groups are active in the area of severe and organised crime with an international dimension. OCG activities in Latvia are connected with publicly known criminal offences (CO) types: i.e. smuggling of narcotic\/psychotropic substances; weapons\/ammunition and products subject to excise duty; human trafficking, blackmail and collection of debts that is often covered behind legal commercial activity; as well as fraud and cybercrimes characteristic to Latvia.","7. The growing presence of organised crime in Latvia has also been reinforced by the high corruption levels within the state services, as well as by the shadow economy ...\u201d","62.Sections 179 to 185 of the Criminal Procedure Law (Krimin\u0101lprocesa likums) set out the general terms governing searches. A search at premises can be carried out if there are sufficient grounds (pietiekams pamats) to consider that the object at issue might be located in those premises (section 179(1)). A search must be aimed at finding items and documents that are relevant to the criminal case (section 179(2)). Under the ordinary procedure for issuing a search warrant, the investigating judge or court authorises the search upon an application by the relevant investigating authority (procesa virz\u012bt\u0101js), having examined the case material filed in support of that application (section 180(1)). A search warrant must indicate what items and documents must be searched and seized by which domestic authority, where, at whose home, and in connection with which proceedings (section 180(2)). A search must be carried out in the presence of a person whose home is being searched, or an adult member of his or her family (section 181(1)).","63.Section 182 of that law lays down the procedure for carrying out a search. A person must be made acquainted with the contents of a search warrant, and he or she must sign that search warrant to indicate that it has been done (section 182(2)). Following amendments effective as of 4February 2010, a copy of that search warrant must also be issued to a person at whose premises the search is being carried out. The items and documents listed in a search warrant, as well as other items and documents that may be relevant to the case, must be seized (section 182(6)). The items and documents seized must be described in an official record, and, if possible, put in a bag and sealed (section 182(8)).","64.Section 185 of that law provides that a copy of a search record must be issued to a person at whose premises the search is being carried out or to his or her adult family member.","65.Section 337 of that law lays down the procedure for examining a complaint. A complaint must be addressed to and lodged with a competent authority; it may also be submitted to the official whose action or decision is being contested (paragraph 1). A complaint about an action or decision by an investigator or his or her direct manager must be examined by a supervising prosecutor, whose action or decision must be examined by a higher-ranking prosecutor. A complaint about an action undertaken or decision given by an investigating judge must be examined by the president of the court to which the investigating judge is attached (paragraph2). When examining a complaint, the president of the court has to decide on the merits; his or her decision is final (paragraph 4).","66.The relevant sections of the State Administration Structure Law (Valsts p\u0101rvaldes iek\u0101rtas likums) read as follows:","Section 54 \u2013 Basic Provisions for Co-operation","\u201c(1) Institutions shall co-operate in order to perform their functions and tasks.","(2) An institution that has received a co-operation request from another institution may refuse co-operation only if the reasons for refusal provided for in section 56 of this Law exist.","(3) Institutional co-operation shall be free of charge, unless laid down otherwise in external laws and regulations.","(4) Institutions may co-operate both in individual cases and continuously. When co-operating continuously, institutions may enter into interdepartmental agreements (sections 58 \u2013 60).","(5) When co-operating, public persons may enter into co-operation contracts (section 61).","(6) When co-operating institutions shall provide the necessary information in electronic form unless laid down otherwise in an external regulatory enactment and the provision of information is not in contradiction with the provisions for provision of information laid down in laws and regulations. The procedures by which exchange of such information shall take place, as well as the way of ensuring and certifying the veracity of such information shall be determined by the Cabinet [of Ministers].\u201d","Section 55 \u2013 Subject-matter of Institutional Co-operation","\u201c(1) An institution may propose that another institution ensure the participation of individual administrative officials in the performance of particular administrative tasks.","(2) An institution, observing the restrictions laid down in laws and regulations, may request that another institution provide the information that is at its disposal.","(3) An institution may request that another institution provide it with an opinion on a matter that is in the competence of the institution that provides the opinion.","(4) Upon mutual agreement and without overstepping their competence institutions may determine another subject-matter of co-operation.\u201d"],"159":["THE CIRCUMSTANCES OF THE CASE","5.The applicant was born in 1993 and lives in Tolyatti, in the Samara region.","6.On 1 June 2008 the applicant was the victim of an accident at a construction site near his school in Tolyatti. He fell through a hole from the third to the second floor of an unfinished building onto a heap of broken bricks, thereby sustaining, among other damage, a serious craniocerebral injury resulting in a disability that will continue to require treatment.","7.On 11 June 2008 an investigator of the police department of the Avtozavodskoy district of Tolyatti declined to institute criminal proceedings into the accident, relying on a request lodged by the applicant\u2019s mother on 9June 2008 for an inquiry into the accident to be discontinued. She stated that the accident had happened because of her son\u2019s own negligence, that she did not wish to have her son examined by forensic medical experts, and that she did not wish to lodge any claim. The investigator held that no crime had been committed against the applicant who had received injuries because of his own carelessness.","8.According to the applicant, it was only after he had undergone head and brain surgery and rehabilitation treatment and his mother\u2019s recovery from an illness that she herself had been suffering that his mother was able to appeal, with the help of a lawyer, against the decision of 11 June 2008.","9.On 7 October 2008 a deputy prosecutor of the Avtozavodskoy district of Tolyatti annulled the decision of 11 June 2008.","10.In the course of a pre-investigation inquiry an investigator of the Avtozavodskoy district police department established that the construction site had not been entirely closed off and had been freely accessible from the side of the local school. The construction work \u2013 which had been commissioned by the Tolyatti town mayor\u2019s office \u2013 had been on hold for lack of funding. The investigating authority found that there had been no elements of a crime in the actions of any officials from the mayor\u2019s office and other organisations, and that the accident had happened as a result of the victim\u2019s own negligence. It therefore declined, on 20October 2008, to institute criminal proceedings in respect of the accident for absence of the occurrence of a crime.","11.The applicant\u2019s mother lodged complaints about the refusal to institute criminal proceedings with various authorities, including the Samara regional prosecutor\u2019s office, the Prosecutor General\u2019s office of the Russian Federation and the Avtozavodskoy District Court of Tolyatti. She argued that the building had not been guarded and closed off, and that the mayor\u2019s office had breached regulations for the \u201cconservation\u201d of unfinished buildings. At a hearing before the District Court prosecutor K. submitted that her complaint should be upheld. On 13April 2009 the District Court upheld her complaint and declared the refusal of 20October 2008 unlawful because it had not been established which organisation and specific officials had been responsible for the \u201cconservation\u201d of the unfinished building and why the elements of a crime had been missing in their actions. On 11 May 2009 the Avtozavodskoy district prosecutor\u2019s office annulled the refusal of 20October 2008 to institute criminal proceedings and ordered an additional pre\u2011investigation inquiry. On 6 July 2009 an investigator from the investigative committee of Tolyatti attached to the Samara regional prosecutor\u2019s office issued a similar refusal to institute criminal proceedings, stating that there was no cause\u2011and-effect connection between (i) the actions (or failure to act) on the part of officials from the mayor\u2019s office and other organisations and (ii) damage to the applicant\u2019s health arising from his own negligence and imprudence. Therefore an obligatory element of the crime under Article 293 of the Criminal Code of the Russian Federation (official negligence) was missing.","12.The applicant\u2019s mother lodged a further complaint about the refusal to institute criminal proceedings, but to no avail. Initially lodged with the Civic Chamber of the Russian Federation, it was forwarded to the Children\u2019s Rights Ombudsman at the President of the Russian Federation, who forwarded it to the Children\u2019s Rights Ombudsman in the Samara region, who in turn forwarded it to the Samara regional prosecutor\u2019s office, which informed her that the complaint would be examined by the Tolyatti prosecutor\u2019s office (according to official letters to the applicant\u2019s mother of 1 June, 8 June, 25June and 7 July 2010, respectively). An article concerning the accident and the authorities\u2019 refusal to institute criminal proceedings in respect of it was published in the local newspaper, Ploshchad Svobody.","13.The applicant, represented by his mother, brought a civil action for damages, seeking 1,000,000 roubles (RUB) by way of compensation for the non\u2011pecuniary damage sustained by him. He argued that the unfinished building, which was situated near the school, in a residential area, had not been guarded and had been freely accessible.","14.On 14 October 2010 the Tsentralniy District Court of Tolyatti granted his action in part. It established that the accident had happened in an unfinished school building that had been the municipal property of the Tolyatti mayor\u2019s office since 1997. The right of economic control (\u043f\u0440\u0430\u0432\u043e \u0445\u043e\u0437\u044f\u0439\u0441\u0442\u0432\u0435\u043d\u043d\u043e\u0433\u043e \u0432\u0435\u0434\u0435\u043d\u0438\u044f) of that building had been transferred to a municipal enterprise, Invest-Proyekt, in 2007 for the purposes of the completion of the construction work. No construction work had been carried out since the transfer of the unfinished building \u2013 the state of completion of which was assessed at 54% \u2013 to Invest-Proyekt. Nor had any construction work been undertaken earlier, from the time of the transfer of the unfinished building to the municipal property in 1997. The Tolyatti mayor\u2019s office had denied any responsibility for the building and had argued at a hearing before the District Court that in the absence of ongoing construction work there had been no need for any protective measures. The District Court rejected those arguments, concluding that \u2013 under the Town Planning Code of the Russian Federation \u2013 during the period that the construction work had been on hold it had been the mayor\u2019s office, as owner of the unfinished building, that had been responsible for taking all measures necessary to exclude threats to people\u2019s life and health. However, as had been established by the wording of the decision of 6 July 2009 not to institute criminal proceedings, the construction site had not been entirely closed off and had been freely accessible from one side of the school. The building had had no windows or doors. The Tolyatti mayor\u2019s office had failed to undertake, in line with the relevant regulations, any protection measures in respect of the unfinished building.","15.The Tsentralniy District Court of Tolyatti noted that the investigating authority\u2019s finding regarding the lack of a cause\u2011and\u2011effect connection between (i) the actions or (failure to act) on the part of officials from the mayor\u2019s office and other organisations and (ii) the damage to the applicant\u2019s health was relevant to its conclusion about the absence of the occurrence of a crime, but did not exclude civil-law responsibility. The District Court held that there had been a cause-and-effect connection between the failure of the mayor\u2019s office\u2019s to act \u2013 notably its failure to undertake measures to restrict access to the unfinished building \u2013 and the damage to the applicant\u2019s health.While Invest-Proyekt had also been responsible for the accident in so far as it had failed to obtain the necessary permits for construction work, it had been the responsibility of the mayor\u2019s office to exercise control over it, which it had not done. In so far as the mayor\u2019s office blamed the previous owner (from which it had received the unfinished building in the state in which it had been at the time of the accident), the mayor\u2019s office had been free to demand that the previous owner undertake protection measures for the \u201cconservation\u201d of the unfinished building, or to refuse to receive it without such measures being first put in place.","16.The court heard witnesses and established that after the accident the applicant had spent seventy days in a coma, with doctors estimating his chances of survival at 50%. He had been declared disabled and had been repeatedly hospitalised afterwards, and ongoing treatment and rehabilitation had been recommended. The court also took into account (i) the applicant\u2019s own negligence \u2013 that is to say his entering a dangerous place and not exercising caution despite a warning from a friend about the hole in the floor, and (ii) the applicant\u2019s mother\u2019s failure to exercise parental responsibility \u2013 given that she should have exercised more control over her minor son\u2019s activities, his visits to the construction site (of which she had been aware before the accident) and given her failure to prevent his visit to the construction site on the day of the accident (which had occurred at the weekend). The applicant argued that immediately before his fall he had been listening to music on headphones and had therefore not heard his friend\u2019s warning about the hole in the floor.","17.The court also heard prosecutor F. who considered that the applicant\u2019s claim should be granted in part. The court granted the applicant\u2019s claim partially and ordered the Tolyatti mayor\u2019s office, which it ruled bore the primary responsibility for the accident, to pay the applicant RUB25,000 and Invest-Proyekt to pay him RUB15,000 in respect of non\u2011pecuniary damage.","18.The applicant\u2019s mother appealed against that judgment, arguing that the amount of the compensation was inadequate. The mayor\u2019s office also appealed against the judgment, which it considered unlawful. Prosecutor N. stated at a hearing before the Samara Regional Court that the judgment should be upheld. On 9December 2010 the Samara Regional Court upheld the judgment on appeal. It agreed with the first-instance court that those responsible for providing compensation in respect of non\u2011pecuniary damage were the mayor\u2019s office, as the owner of an unfinished building that was a source of increased danger (\u0438\u0441\u0442\u043e\u0447\u043d\u0438\u043a \u043f\u043e\u0432\u044b\u0448\u0435\u043d\u043d\u043e\u0439 \u043e\u043f\u0430\u0441\u043d\u043e\u0441\u0442\u0438), and Invest-Proyekt, which had the right of economic control over the building. Their failure to act had led to the applicant suffering serious bodily harm and disability. The first-instance court had rightly ordered the mayor\u2019s office, which had been responsible for exercising control over its property, to pay the larger part of the compensation. From the time of the transfer of the unfinished building to the municipal property in 1997 no construction work had been undertaken. Nevertheless, protection measures for the \u201cconservation\u201d of the unfinished building, such as fencing and guarding the unfinished building, had not been undertaken. Despite its close proximity to a school, the unfinished building had been freely accessible from the side of the school.","19.The judgment was enforced in the part concerning the payment by the mayor\u2019s office. The remaining part has not been enforced owing to the fact that the municipal enterprise had gone into liquidation after the delivery of the judgment.","20.The applicant lodged an application for supervisory review of the judgments in the case. On 28 April 2011 a judge of the Supreme Court of the Russian Federation rejected his application, finding no grounds for supervisory review of the case by the Supreme Court."],"160":["5.The applicant was born in 1973 and lives in Van.","6.On 23 July 1999 the applicant was arrested on suspicion of membership of a terrorist organisation, namely the PKK (Workers\u2019 Party of Kurdistan).","7.On 26 July 1999 the applicant was questioned by the police and gave statements without a lawyer present. The applicant first gave an account of how he had joined the illegal organisation and then provided details about the following three acts: so-called \u201ctaxation activities\u201d, meaning collection of money on behalf of the illegal organisation through coercion; opening fire on a police armoured vehicle during a demonstration organised in the aftermath of Abdullah \u00d6calan\u2019s arrest; and the killing of M.Y.","8.As to the \u201ctaxation activities\u201d, the applicant stated that he had threatened a person named M.K., the owner of a furniture store located in the Esenyurt district of Istanbul, with a view to taking 1,000 German marks (DEM) from him. When M.K. had been able to hand over only DEM 25, the applicant had told him that he would come back for the remainder. Subsequently, the applicant had handed that money over to another member of the PKK. The applicant had also gone to a bakery with a gun and asked for money on behalf of the terrorist organisation. The bakery owner\u2019s son had given him DEM 2,500, which he had then delivered to another member of the organisation. Likewise, the applicant had also threatened A.K., who had been involved in the construction business, and collected 1,500United States dollars from him. He had also attempted to collect money from three other people, but they had not given him anything. Together with those, the applicant gave detailed explanations about a total of six incidents of extortion.","9.As regards opening fire on the police vehicle, the applicant stated that he had participated in the demonstration to protest against Abdullah \u00d6calan\u2019s arrest together with R.B. (who was the applicant in Ru\u015fen Bayar v.Turkey, no. 25253\/08, 19 February 2019) and Ma.Y., who had opened fire on a police armoured vehicle.","10.Lastly, in relation to the murder of M.Y., the applicant maintained that certain other members of the organisation had abducted M.Y. with a view to questioning him after having heard that he had tried to collect money on behalf of the organisation without their permission. Another member, Ma.Y., had told the applicant that they should go to the house where M.Y. was being held to act as lookouts. The applicant had gone to that house but he had later been sent to A.Y.\u2019s shop to wait for R.B., who had not come. The next day at around 11 a.m. the applicant had once again gone to the house where M.Y. was being held, but he had again been sent to A.Y.\u2019s shop to wait for R.B., who had not come. Later on, R.B. had gone to the house with another member of the organisation with the code name \u201cEzgi-Ay\u015fe\u201d and had continued questioning M.Y. When \u201cEzgi-Ay\u015fe\u201d had told R.B. that the house had been discovered, they had decided to move M.Y. to another house, in the course of which M.Y. had tried to run away. As a result, he had been killed by R.B. or Ma.Y. The applicant maintained that this had been told to him by Ma.Y., but that he had not asked them who had killed M.Y. The applicant also stated that after this incident he had become estranged from the organisation and had decided to leave it.","11.On 26 July 1999 the applicant participated in a reconstruction of the events (yer g\u00f6sterme). According to the record drafted by police officers and signed by the applicant, the latter showed the workplace of co-defendant Ma.Y. to the police officers. During a search of Ma.Y.\u2019s workplace, three unlicensed guns of 7.65 mm calibre and corresponding ammunition were found.","12.On 30 July 1999 the applicant took part in an identification parade and three of the four complainants identified him as the person who had asked for money from them on behalf of the terrorist organisation.","13.On the same day M.K. gave statements to the police in his capacity as a complainant, stating that the applicant had come to his workplace together with another person approximately one and a half months before and had asked for money from him on behalf of the terrorist organisation by threatening him.","14.On 31 July 1999 the applicant participated in an identification parade and identified \u015e.A., M.H., Ma.Y. and F.A. as people who had carried out activities on behalf of the terrorist organisation. The other suspects, namely \u015e.A., M.A., M.H. and A.K. identified the applicant as a member of the organisation.","15.On 1 August 1999 the applicant was brought before the public prosecutor, to whom he made statements without a lawyer present. The applicant told the public prosecutor that most of his statements to the police had not been correct, alleging that the police had made him sign whatever they had written, as he was illiterate. However, the applicant admitted that he had threatened certain individuals in order to collect money on behalf of the terrorist organisation and acknowledged three incidents of extortion. He also denied the allegation that he had been involved in an armed attack. The applicant further stated that he did not know how M.Y. had been killed and denied having taken part as a lookout, arguing that he had learned of the killing from newspapers.","16.On the same day the applicant was questioned by the investigating judge at the Istanbul State Security Court without a lawyer present, when he accepted the content of his statements to the public prosecutor. When asked whether he accepted his statements to the police, the applicant denied them, stating that he was illiterate and that the police had not read out the content of his statements. He also told the court that he had been beaten at the police headquarters. At the end of the questioning, the judge ordered his pre\u2011trial detention.","17.On 10 August 1999 the public prosecutor at the Istanbul State Security Court lodged a bill of indictment with that court against the applicant and four other persons, charging the applicant with membership of an illegal organisation, attempted extortion (3 counts) and extortion (3counts) under Articles 61, 495 \u00a7 1 and 168 \u00a7 2 of the former Criminal Code. The acts attributed to the applicant were, inter alia, as follows:collection of money on behalf of the illegal organisation through coercion, opening fire on a police armoured vehicle during a demonstration organised in the aftermath of Abdullah \u00d6calan\u2019s arrest, and the killing of M.Y.","18.At a hearing held on 22 November 1999, the applicant gave evidence in person and without a lawyer present. He denied all the charges against him and pleaded not guilty. He also denied all his previous statements.","19.As of the hearing held on 31 July 2000, the lawyer M.E. represented the applicant. He applied for the applicant\u2019s release, stating that he had not committed any other illegal act apart from collecting money on behalf of the terrorist organisation. At the end of the hearing, the trial court rejected the request for release.","20.At a hearing held on 7 May 2001 the applicant\u2019s lawyer asked the court to hear evidence from the complainants who had identified the applicant. The trial court subsequently heard them in person at different hearings.","21.At a hearing held on 18 June 2003, the public prosecutor read out his observations on the merits of the case, stating that the applicant should be convicted and sentenced as indicted. At the same hearing, the applicant\u2019s lawyer and some of the lawyers of the other co-defendants applied for time to prepare their defence submissions in reply to the public prosecutor\u2019s observations on the merits of the case. The trial court adjourned and granted them further time.","22.Another hearing was held on 23 February 2004, which the applicant did not attend. The trial court noted that the applicant had sent a written application dated 28 October 2003 in which he had expressed his wish to benefit from the provisions of the Reintegration of Offenders into Society Act (Law no. 4959).","23.At a hearing held on 6 April 2004, the applicant accepted the content of his \u201cearlier statements\u201d. He also asked to be granted a certain period of time with a view to submitting written submissions to provide more information on his activities and those of the other accused persons within the organisation.","24.At a hearing held on 12 May 2004, the applicant submitted a two-page-long document in which he essentially reiterated, inter alia, the information he had given to the police concerning the killing of M.Y., stating that the latter had been interrogated as he had collected money on behalf of the organisation without its approval. The applicant also described how other co-accused, namely Ma.Y., F.A. and M.H., had been involved in the killing and stated that he had been to the house where M.Y. was being held twice and that he had stayed there for fifteen and twenty to thirty minutes respectively. The applicant maintained that he had only been involved in two instances of extortion and denied his involvement in the killing.","25.At the same hearing the court decided to send a letter to the General Security Directorate to seek its opinion on the question of whether the applicant was eligible to benefit from the provisions of the Reintegration of Offenders into Society Act.","26.At a hearing held on 22 November 2004 the trial court received the response of the General Security Directorate, to which the applicant\u2019s lawyer responded that he had no comment to make. However, considering the response of the General Security Directorate to be unclear, the trial court decided to ask for its opinion on the same issue for a second time. At the end of the hearing, the trial court ordered the release of the applicant.","27.At a hearing held on 5 June 2006, the trial court received the new response of the General Security Directorate, according to which there was information indicating that the applicant had taken part in violent activities on behalf of the organisation. At the same hearing, the public prosecutor read out his observations on the merits and requested that the applicant be sentenced under Article 125 of the former Criminal Code.","28.At a hearing held on 12 March 2007 the applicant\u2019s lawyer submitted a three-page-long defence submission where he stated, inter alia, that his client had had nothing to do with M.Y.\u2019s killing and that even if his police statements were regarded as genuine, he had only been a sympathiser of the organisation at that time and he had not known that M.Y. would be killed. Moreover, the victims from whom the applicant had allegedly asked for money on behalf of the organisation had not been able to identify the applicant. Accordingly, his client had to be acquitted and if the trial court considered otherwise, he could only be convicted of membership of an illegal organisation under Article 314 \u00a7 2 of the Criminal Code.","29.On 13 February 2009 the Twelfth Chamber of the Istanbul Assize Court requalified the offences and convicted him under Article 125 of the former Criminal Code of breaking up the unity of the State and seeking to remove part of the national territory from the State\u2019s control, and sentenced him to life imprisonment. The trial court listed, among other pieces of evidence, \u201cthe statements of the accused throughout the proceedings\u201d in the \u201cevidence\u201d part of its judgment. In the part entitled \u201cassessment of evidence and reasons\u201d, the trial court noted that the applicant had sent a letter to the court on 12 May 2004 in which he had stated that M.Y. had been abducted and killed by Ma.Y., F.A. and M.H. The trial court concluded that those statements were corroborated by the autopsy report, a crime scene report and a police report establishing that the gun that had been used to kill M.Y. was the same one that had been used at the demonstration. It went on to hold that the defendants\u2019 denial of their guilt during the trial should be dismissed in the light of that evidence.","30.In view of that evidence and the statements of the witnesses and the victims, and the invoices of the illegal organisation that had been found, the trial court also found it established that the applicant had attempted to and had collected money on behalf of the illegal organisation through coercion. It found that the applicant had been involved in six different acts of extortion. It went on to hold that the applicant had taken part in the killing of M.Y. as a lookout with a view to preventing M.Y. from running away. Taking into account the participation of the applicant and Ma.Y. in the demonstration of 20 February 1999, and their positions within the illegal organisation, the trial court considered that the killing of M.Y. and the completed acts of extortion should be accepted as being \u201cserious enough\u201d, which was the material element of the offence set out in Article 125 of the former Criminal Code.","31.Lastly, in the \u201cconviction\u201d part of its judgment, the trial court held that the applicant had been a member of the illegal organisation, had collected money on behalf of the illegal organisation through coercion and had participated in the killing of M.Y. It also refused the applicant\u2019s application to benefit from the Reintegration of Offenders into Society Act, holding that the applicant did not fulfil the requirements laid down therein. The trial court did not assess any evidence in that part of its judgment.","32.On an unspecified date the applicant lodged an appeal against the trial court\u2019s judgment. In the appeal, dated 14 May 2009, the applicant\u2019s lawyer argued, inter alia, that the use of the applicant\u2019s statements to the police, which had been taken under duress and which he had later retracted, had been unlawful.","33.On 27 April 2010 the Court of Cassation upheld the judgment of the first-instance court."],"161":["1.The applicant was born in 1980 and lives in Moscow. She was represented by MrM.Golichenko, a lawyer practising in Balashikha.","2.The Government were represented by MrG.Matyushkin, Representative of the Russian Government before the European Court of Human Rights, and then by MrM.Galperin, his successor in that office.","3.The facts of the case, as submitted by the parties, may be summarised as follows.","4.The applicant is the biological mother of I., born in 1999, A., born in 2011, and Al., born in 2012. At the material time, she was living with her three children and her mother, Ms P., in a two-room flat. She appears to have been taking opiate drugs from 2004 onwards, and suffered from an opiate addiction.","5.At 5.45 a.m. on 8 October 2013 the police arrested the applicant and MrK., her partner and the biological father of A. and Al., at her home address, on suspicion of being involved in drug trafficking. The applicant\u2019s three children were at home at the time. The police took the applicant to a police station, where she remained for at least four hours. She was then released, having given an undertaking not to leave a specified location. During that period the applicant\u2019s children had been at home on their own, as the applicant\u2019s mother had been visiting her relatives in another region.","6.On 8 October 2013 a police officer interviewed the applicant. She stated, in particular, that she had started taking drugs in 2004. Initially, she had taken two types of psychotropic medicine, which she had mixed together for injections. She had stopped taking drugs in 2010 before giving birth to her two youngest children. She had then relapsed and, for about the past month, had been taking heroin. She also stated that she had regularly let her acquaintances take drugs in her kitchen.","7.At 10 a.m. on the same date, when the applicant was at home, a police officer for juvenile affairs (\u0438\u043d\u0441\u043f\u0435\u043a\u0442\u043e\u0440 \u043f\u043e \u0434\u0435\u043b\u0430\u043c \u043d\u0435\u0441\u043e\u0432\u0435\u0440\u0448\u0435\u043d\u043d\u043e\u043b\u0435\u0442\u043d\u0438\u0445) arrived. He drew up a report stating that the applicant had committed an administrative offence as she had failed duly to fulfil her parental obligations in respect of her three minor children and had been taking drugs. He also drew up three more reports stating that the children had been left unattended. Later that day, I. was taken to a children\u2019s home, and A. and Al. were taken to a children\u2019s hospital.","8.On the same date the applicant underwent a medical examination, which confirmed that she was in a state of intoxication caused by morphine and codeine.","9.On the same date the police for juvenile affairs sent the above\u2011mentioned reports to the Khovrino district authority (\u0410\u0434\u043c\u0438\u043d\u0438\u0441\u0442\u0440\u0430\u0446\u0438\u044f \u043c\u0443\u043d\u0438\u0446\u0438\u043f\u0430\u043b\u044c\u043d\u043e\u0433\u043e \u043e\u043a\u0440\u0443\u0433\u0430 \u0425\u043e\u0432\u0440\u0438\u043d\u043e) with a request that proceedings to deprive the applicant of her parental authority in respect of I., A. and Al. be initiated.","10.On 18 October 2013 I. was taken to stay with Mr Is., his father.","11.By decisions of 23 October 2013 the Khovrino district authority ordered that A. and Al. be placed in public care, as children left without parental care. On 25 October 2013 A. and Al. were placed in a children\u2019s home.","12.On 17 January 2014, as upheld on appeal on 14 April 2014, the domestic courts deprived the applicant of her parental authority in respect of her three children (see paragraphs 34-48 below).","13.On 28 April 2014 the Golovinskiy District Court of Moscow found the applicant guilty of drug trafficking and sentenced her to six years\u2019 imprisonment. She was arrested in the court room after the judgment had been pronounced.","14.According to the Government, on 10 June 2014 A. and Al. were transferred to a foster family, where they have remained since that date.","15.In the applicant\u2019s submission, prior to her conviction, she had regularly visited A. and Al. in the children\u2019s home at least once a week.","16.According to the reports drawn up by staff at the children\u2019s hospital and children\u2019s home, A. and Al. missed their mother. In particular, Al. would wake up during the night, weeping and calling for her \u201cmum\u201d. A. would often ask where his mother was and when she would take him home.","17.It is unclear whether the applicant ever saw her eldest son I. following his removal.","18.On 11 October and 18 November 2013 the Khovrino district authorities inspected the living conditions at the applicant\u2019s home address.","19.The report of 11 October 2013 stated that the flat had the necessary furniture and domestic appliances. It had two rooms: one measuring 10.4sq.m, which was occupied by Ms P., the applicant\u2019s mother, who had been visiting relatives in another region of Russia at that point in time, and another measuring 18.7 sq. m, which was shared by the applicant and her three children. Each of the children had a separate sleeping place. The room was stuffy, as it was not properly ventilated. It was equipped with chests of drawers, a dining table with a desktop computer on it, an office chair and a linen chest. There were empty plastic bottles, ashtrays with cigarette butts and a washing up bowl on the floor. Sufficient food supplies were found in the kitchen and in the refrigerator. The report mentioned that the applicant had been present during the inspection. She had remained lying on a sofa, crying and smoking, and blamed herself for the recent events, including the removal of her children. According to the report, the applicant stated that she had taken drugs between 2003 and 2011, and then from September until 8 October 2013; in the latter period she had taken heroin, which she had received from Mr K. (see paragraph 5 above). The applicant also stated that she had intended to contact the Khovrino district authorities to find out where her children had been taken, but had been unable to do so, as she had had to stay in bed because of withdrawal symptoms. She realised that she had a drug addiction and was ready to undergo medical treatment.","20.The report of 18 November 2013 stated that the flat had the necessary furniture and domestic appliances, and was tidy, cosy and well ventilated. Repair work had been carried out in the kitchen in the past month, and the furniture in the applicant\u2019s room had been rearranged. The inspection was carried out in the presence of Ms P., who stated that the applicant had been admitted to hospital on 31 October 2013 and was currently undergoing inpatient medical treatment in connection with her addiction. Ms P. said that the applicant loved her children and cared about them. She also mentioned that she herself was currently taking the necessary administrative steps to gain custody of her grandchildren.","21.On 29 October 2013 the applicant sought assistance in connection with her drug addiction in a drug rehabilitation outpatient clinic (\u043d\u0430\u0440\u043a\u043e\u043b\u043e\u0433\u0438\u0447\u0435\u0441\u043a\u0438\u0439 \u0434\u0438\u0441\u043f\u0430\u043d\u0441\u0435\u0440).","22.An extract from the applicant\u2019s medical history file reveals that on 30October 2013 she was admitted to a specialist clinic, where she was diagnosed with stage-two opiate addiction and withdrawal symptoms. She received treatment for her addiction until 21 November 2013, when she was discharged from the clinic. The file also states that she applied to the clinic for treatment on her own initiative, and that she had a positive attitude towards the treatment and intended to abstain from taking drugs and to lead a healthy life.","23.According to a certificate dated 5 December 2013, from December 2013 onwards, following a diagnosis of stage-two opiate addiction, the applicant was registered as an outpatient with a drug rehabilitation clinic for monitoring.","24.In the context of that monitoring, the applicant visited the drug rehabilitation clinic on 28 November 2013 and 9 January, 13 and 14 March and 10 April 2014.","25.According to the Government, the applicant received in-patient treatment for her addiction in a specialist clinic between 17and 31 January 2014; she was discharged on the latter date as she had refused treatment. She was then readmitted to the clinic from 7 to 21February 2014. In the applicant\u2019s submission, she had left the specialist clinic on 31 January 2014 as she had had health issues which could not be addressed there. As soon as she had received treatment for those issues, she had returned to the drug rehabilitation clinic.","26.On 1 November 2013 the Khovrino district authority brought an action against the applicant, seeking the withdrawal of her parental authority in respect of her three children. In particular, they pointed out that since October 2013 the applicant had been monitored by the district commission for children\u2019s affairs and the protection of minors\u2019 rights as a mother who had been neglecting her parental duties by not providing her children with adequate care and financial support, and who had been taking drugs for a prolonged period of time. The authority also pointed out that the applicant was unemployed and that criminal proceedings against her were currently ongoing in relation to her suspected involvement in drug trafficking. The authority therefore insisted that leaving her children with her would put their lives and health at risk.","27.A transcript of two court hearings that took place on 5 and 24December 2013 respectively reveals that the applicant and her representative attended those hearings and made oral submissions. The applicant stated, in particular, that she loved her children and was willing to take care of them. She also stated that she had never taken drugs in front of her children; she would go to the bathroom or toilet for that purpose. She also said that she was willing to undergo rehabilitation treatment for her addiction.","28.The applicant\u2019s mother, Ms P., who participated in the proceedings as a third party, objected to the withdrawal of her daughter\u2019s parental authority. She stated that the applicant loved her children and had taken care of them to the extent that the state of her health had allowed. She also stated that she knew that, previously, her daughter had taken psychotropic drugs, but had stopped taking them during her pregnancy. Ms P. further stated that, although she shared the flat with her daughter, she had not noticed that the latter had relapsed; nor did she know that she had started taking heroin.","29.A representative of the children\u2019s home in which A. and Al. had been placed stated, in particular, that the children\u2019s grandmother had started visiting them as soon as they had been placed in that institution, whereas their mother had come for the first time on 6 December 2013, as prior to that date she had been following inpatient treatment for her addiction. Both the children\u2019s mother and grandmother had regularly visited the children and had brought them presents; the children were particularly attached to their grandmother.","30.A police officer for juvenile affairs, MsI.P., stated that the children\u2019s mother had been taking drugs since 2004. According to Ms I.P., in 2010 she had stopped taking drugs because of her pregnancy, but had relapsed after the birth and had started taking heroin on a regular basis. The officer further stated that the children\u2019s mother had tried to stop taking drugs, but had been unable to stop for longer than a fortnight. In the context of the criminal proceedings relating to drug trafficking, a search of her flat had been carried out and packets of heroin had been found. She would allow her acquaintances to take drugs in her kitchen, in her children\u2019s presence. According to MsI.P., the elder son, I., had been monitored by the police; two criminal cases against him had been discontinued owing to his young age.","31.The court also heard I., the applicant\u2019s elder son, who stated, in particular, that until the events of 8 October 2013, he had been living with his mother, her partner, his brother and sister and his grandmother. Their life had been \u201cnormal\u201d, there had been no \u201cinadequacy\u201d in his mother\u2019s behaviour; she had been taking care of the children. I. also stated that he liked living with his father and that he had good relations with his father\u2019s new family. In fact, I. would like to live with both of his parents, he could not make a choice. He stressed that he did not want his mother to be deprived of her parental authority.","32.I.\u2019s father, Mr Is., and his wife stated that they would like I. to live with their family.","33.A transcript of the court hearing of 17 January 2014 reveals that the applicant\u2019s representative informed the court that as the applicant had been admitted to a specialist clinic for treatment for her drug addiction, she was unable to attend the hearing. She had applied to the first-instance court for an adjournment of the hearing, but her application had been rejected.","34.By a default judgment of 17 January 2014 the Golovinskiy District Court of Moscow (\u201cthe District Court\u201d) examined and allowed the action against the applicant. It referred to Article 69 of the Russian Family Code (see paragraph 52 below).","35.The District Court examined the report on the applicant\u2019s arrest on 8October 2013 (see paragraphs 5-6 above), an administrative offence report of the same date (see paragraph 7 above), and a report on her medical examination on that date (see paragraph 8 above). The court also cited the report of 11 October 2013 on the inspection of the applicant\u2019s living conditions (see paragraph 19 above), the certificate of 5 December 2013 (see paragraph 23 above), and the administrative decisions of 23October 2013 to place A. and Al. in public care (see paragraph 11 above).","36.The court also relied on a letter from a teacher at I.\u2019s school. The letter stated that I. had been going to that school since 1 September 2008, and that during the period when he had been going to that school he had demonstrated a lack of ability and motivation, and had missed classes for no valid reason. The letter also stated that although I.\u2019s mother took care of I. and enquired about his behaviour and progress, she had not had any influence on him.","37.The court admitted MsI.P.\u2019s statements (see paragraph 30 above) as evidence, stating that they were consistent, coherent and corroborated by the written material in the case.","38.The court examined a report on the inspection of the living conditions in MrIs.\u2019s flat, which confirmed that they were good, and another letter from a teacher at I.\u2019s school, which stated that since 18October 2013 (the date on which I. had started living with his father) his behaviour had improved, he had stopped missing classes, and he had made progress in his studies.","39.With reference to the above-mentioned pieces of evidence and witness statements, the court noted that the applicant had been taking drugs for a prolonged period of time, was unemployed, and had failed to provide her children with adequate care or financial support. It concluded that leaving the children in her care would put their health and lives at risk, and that she should therefore be deprived of her parental authority in respect of I., A. and Al.","40.The court considered that the arguments put forward by the applicant\u2019s representative and her mother that the applicant was currently undergoing medical treatment for her addiction and had positive references from her neighbours were irrelevant in the circumstances of the case, and should thus not be taken into account.","41.The court thus deprived the applicant of her parental authority in respect of her three children, and ordered that I. be placed in the care of MrIs., his father, that A. and Al. be placed in public care, and that the applicant pay maintenance on a monthly basis to support her children financially.","42.The applicant disagreed with the first-instance judgment and lodged an appeal before the Moscow City Court. She complained that the District Court had taken an overly formalistic approach and had not assessed the particular circumstances of her case, but had merely applied Article 69 of the Russian Family Code (see paragraph 52 below). It had thus withdrawn her parental authority on the sole grounds that she was a drug addict. In the applicant\u2019s view, that fact alone did not prove that she posed any danger to her children, and therefore was insufficient for the purposes of depriving her of her parental authority. The first-instance court had ignored the fact that she was undergoing rehabilitation, even though that fact was directly relevant to her case. Lastly, she complained that she had not been given an opportunity to participate in the proceedings before the District Court, as it had rejected her application to adjourn the hearing.","43.A transcript of 14 April 2014 reveals that the applicant and her representative attended the hearing before the appellate court and submitted their arguments. They requested that the appellate court include in the case file a number of pieces of evidence proving that the applicant had changed her attitude, had found a job and had a sufficient income, and had followed rehabilitation treatment. They also requested the appellate court to call and examine the doctor who had treated the applicant at the specialist clinic where she had undergone inpatient treatment for her addiction. The appellate court dismissed that request, stating that the evidence in question had been received after the first-instance court had rendered its judgment, and that the applicant could have sought, but had not, the examination of the witness in question before the first-instance court.","44.By a decision of 14 April 2014 the Moscow City Court upheld the judgment of 17 January 2014 on appeal. It considered that the first-instance judgment was well reasoned and based on an adequate assessment of all the relevant circumstances.","45.The appellate court disagreed with the applicant\u2019s argument that her addiction to drugs had been the sole ground for depriving her of her parental authority. Her children had been taken away because she had neglected her parental duties in respect of A. and Al. and, for a prolonged period of time, had remained unemployed and had taken drugs. The appellate court referred to the applicant\u2019s words in the report of 11October 2013 to the effect that, because of her withdrawal symptoms, she had been unable to discover her children\u2019s whereabouts (see paragraph 19 above), and to her interview of 8October 2013 (see paragraph 6 above) which revealed that she had regularly let other people take drugs in her flat. It also referred to \u201cother pieces of evidence which showed that [she] had taken and had dealt in drugs at her flat\u201d, without indicating what those pieces of evidence were.","46.In the appellate court\u2019s view, the foregoing considerations had been sufficient to enable the first-instance court to reach a well-founded conclusion that leaving the children in the applicant\u2019s care would put their lives and health at risk.","47.The Moscow City Court further held that the fact that the applicant had undergone rehabilitation treatment could not, on its own, be the basis for rejecting the authorities\u2019 action, as the first-instance court\u2019s judgment had been based on an assessment of the available evidence and circumstances at the time the case was decided. Moreover, the applicant would have the opportunity to seek reinstatement of her parental authority once the reasons underlying the decision to deprive her of it were no longer valid.","48.Lastly, in so far as the applicant complained about the first-instance court\u2019s refusal to adjourn the hearing to ensure her personal participation in the proceedings, the Moscow City Court noted that that did not constitute grounds for quashing the judgment, as the applicant had been represented before the first-instance court, and her representative had set out her position.","49.The applicant then lodged a cassation appeal before the Presidium of the Moscow City Court. The latter received the appeal on 10 October 2014. She argued that the lower courts had applied Article 69 of the Russian Family Code in a formalistic manner, and had based their decisions solely on the fact that she had been a drug addict, whilst failing to take into consideration the fact that she had been undergoing rehabilitation treatment. Moreover, the first-instance and appellate courts had disregarded her children\u2019s right to live and be raised in their family, as guaranteed by Article 54 of the Russian Family Code (see paragraph 51 below). In particular, they had failed to demonstrate convincingly that the children\u2019s forced separation from their mother and their placement in the care of the State had been in their best interests. The applicant further argued that the courts had failed to set out any facts showing that she had neglected her parental duties at any point, and that the courts\u2019 conclusion to that end had been groundless. According to the applicant, the case material showed that, although she suffered from an opiate addiction, she was making efforts to overcome it; moreover, she had never lost interest in her children\u2019s lives, their development and upbringing. She also argued that the impugned decisions had breached her right to respect for her private and family life, as guaranteed by Article 8 of the Convention.","50.By a decision of 29 October 2014 the Presidium of the Moscow City Court upheld the judgment of 17 January 2014 and the decision of 14 April 2014, endorsing the reasoning of the lower courts."],"162":["1.The applicant was born in 1965 and lives in Baia Mare. He was represented before the Court by Ms I.-R. Muscan, a lawyer practising in Baia Mare.","2.The Government were represented by their Agent, most recently MsS.-M.Teodoroiu, of the Ministry of Foreign Affairs.","3.The facts of the case, as submitted by the parties, may be summarised as follows.","4.In 2007 the applicant married Ms X. They had met earlier that year when they were both patients in the Cavnic psychiatric hospital. In 2014 the couple had a daughter, Y. They lived together until 14 June 2018 when Xmoved out of the family home and took Y with her. On 26June 2018 Xfiled for divorce.","5.At the time of the couple\u2019s separation, the applicant was not working and was receiving a disability pension. X was working as a school teacher and deputy-headmistress. At that time, she was no longer registered as suffering from mental illness.","6.Since the couple\u2019s separation, X has opposed any contacts, be they direct or via telephone, between the applicant and the child. He was able to see his daughter on only one occasion, on 5 July 2018, for half an hour.","7.On 30 July 2018 the applicant lodged an action for an interim injunction (ordonan\u0163\u0103 pre\u015feden\u0163ial\u0103) with the Baia Mare District Court. He requested that, during the divorce proceedings, the child be returned to the family home to live with him, as she had done since her birth. Alternatively, he requested that the court establish a contact schedule so that he could spend time with the child in his home, every Tuesday and Thursday from 6p.m. to 8p.m. and every other week from 6p.m. on Fridays to 6p.m. on Sundays.","8.On 8 August 2018 X acquiesced to allow the applicant contact with their daughter but only on Tuesdays and Thursdays, in public places and in her presence. She further requested that the court set the child\u2019s residence with her during the divorce proceedings and order the applicant to contribute to the child\u2019s financial needs. X explained that she had left the family home with the child because the applicant, who suffered from paranoid schizophrenia, had been physically and psychologically aggressive towards her, sometimes even in their child\u2019s presence. X claimed that the applicant had also been abusive towards their daughter, telling her on several occasions that he did not need her love. She also claimed that, because of the applicant\u2019s illness, he had never been left alone with the child. Either she or the child\u2019s maternal grandmother had always been present.","9.The District Court examined the parents\u2019 psychiatric records (the applicant\u2019s most recent internment, at his wife\u2019s request, having been from 6 to 25 April 2017 in the psychiatric ward of Sighetul Marma\u0163iei municipal hospital).","10.The court also heard evidence from the child\u2019s grandmothers and X\u2019s maternal aunt. The maternal aunt declared that, having known the applicant since he had married her niece, she had the impression that he had always tried to control his wife and to have the last word in any discussion. X\u2019s mother declared that she had been taking care of Y in the applicant\u2019s home since X had returned to work at the end of her maternity leave. When Y had reached the age of two, the applicant had forbidden her from having contact with the child, alleging that she had been \u201cabusing\u201d Y. She further declared that, in her opinion, the child would not be safe with her father, not even for a few days, because of his illness. The applicant\u2019s mother declared that the applicant had been taking care of Y since her birth and the relationship between father and child had always been excellent. She had not witnessed or heard of any aggressive behaviour in the family.","11.In addition, the court received a report from the Baia Mare Directorate General for Social Welfare and Child Protection (\u201cthe child\u2011protection authority\u201d) concerning the material conditions offered by each parent for raising the child. The child-protection authority conducted interviews with the parents and examined their domestic environments. It concluded as follows:","\u201cFollowing the assessment undertaken, it is concluded that the parents are separated and the tensions between them make any civilised communication aimed at correctly handling the child\u2019s situation impossible.","The child is healthy and well taken care of by the mother and the maternal grandmother. The child is four years old and has developed an attachment with all the adults in her life (parents, grandparents).","[The applicant] considers that he can offer the child better housing conditions, and a lot of love and affection, and for these reasons he requests that the child\u2019s residence be set with him.","In [X]\u2019s view, the father does not offer psycho-emotional safety for the child, because he does not admit his illness and does not take his medication.","The parents have been advised to put the child\u2019s best interests above their anger and pride, and have been made aware of the importance of offering psycho-emotional comfort to the child in order to allow for a harmonious development of her personality.","In the light of the above findings, the court is requested to make its decision bearing in mind the best interests of the child.\u201d","12.On 4 September 2018 the court, sitting in camera (the judge and the court clerk), interviewed Y. According to the interview report drafted by the court, Y told the judge that she and her mother had moved in with her grandmother because the applicant used to shout at her mother and sometimes at her. She liked living at her grandmother\u2019s place because nobody shouted at her and everybody behaved nicely.","13.The District Court gave judgment on 4 September 2018. It set weekly contacts between the applicant and Y from 6 p.m. to 8 p.m. on Tuesdays and Thursdays only in public places and in the mother\u2019s presence. It also set the child\u2019s residence with her mother until the end of the divorce proceedings, and ordered the applicant to pay maintenance for his daughter. The relevant parts of the judgment read as follows:","\u201c... the evidence in the file, that is the written evidence, the witnesses\u2019 statements, and the child-protection authority\u2019s report, does not indicate any justified reason for prohibiting contact between the applicant and the child.","However, ... [in view of] the medical evidence in the file, which reveals the applicant\u2019s chronic mental illness, as well as the witness statements and the child\u2019s statement ... in order to protect the child\u2019s interests, contacts must be limited and must take place in public in the mother\u2019s presence.\u201d","14.The applicant lodged an appeal with the Maramure\u015f County Court, complaining mainly that the District Court had relied exclusively on his illness, in a subjective and partial manner. He had never been violent with his daughter and nothing in the file could prove that he represented a threat to her. He also denied having ever been violent towards his wife and explained that it had been X who had threatened him repeatedly that she would use his illness in order to get him committed to the psychiatric hospital and to take Y away from him. He also reiterated his request to have the child returned to their family home with him.","15.On 18 September 2018 the Baia Mare psychiatric hospital informed the court that in the past two years the applicant had taken his medication and had not suffered any episode of psychiatric decompensation caused by his illness.","16.In a final decision of 15 November 2018 the County Court dismissed the appeal. The relevant parts of the decision read as follows:","\u201cIn agreement with the first-instance court, the County Court notes that the medical evidence in the file, together with the remaining evidence \u2013 witness statements, correspondence and the father\u2019s attitude towards the mother \u2013 justify temporarily setting the child\u2019s residence with her mother, ordering the father to pay maintenance, and setting a limited contact schedule in the mother\u2019s presence.","...","The child-protection authority\u2019s reports have revealed that the current relationship between the parents makes any civilised communication impossible (a criminal complaint lodged in 2018 by [X] for the offence of threats is currently under examination); ... the child is emotionally attached to both parents.","In disagreement with [the applicant], the County Court finds that the first-instance court decision was not exclusively based on his diagnosis; it took into account all evidence in the file. It is to be noted that the father\u2019s contact with his daughter was not forbidden, it was only limited temporarily because of his current state of health and his attitude towards the child and the mother; the conflictual situation generated by the divorce caused [the applicant] to exhibit unbalanced behaviour which is not centred in the child\u2019s need to grow up in an environment free from tensions.","The fact that [the applicant] has not suffered any episode of decompensation is not in itself sufficient at this time to change the outcome.\u201d"],"163":["8.The first and second applicants were born in the Philippines in 1969 and in Norway in 1962, respectively. In September 2008, the first applicant gave birth to their son, the third applicant, X.","9.On 5 December 2008, when he was two and a half months old, X was placed in an emergency foster home because the first and second applicants were mentally ill and incapable of looking after him. There was at the time a conflict between the first and second applicant and the second applicant wanted the child welfare services to take care of X.","10.In the spring of 2009 X and the first applicant stayed for four weeks at a parent-child institution. The purpose of the stay was to facilitate the return of X to his parents. The stay had to be terminated, however, because of a negative development in X and deficiencies in the care that the first applicant had provided.","11.In connection with the centre\u2019s decision to terminate the stay, the head of the child welfare services issued a new formal decision on 12May 2009 to place X in an emergency foster home. The parents lodged an appeal against the decision with the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker). They submitted, notably, that the first applicant had by then essentially overcome her mental issues, which had related primarily to depression. On 29 May 2009 the Board decided not to allow that appeal.","12.On 23 June 2009 the child welfare services applied to the Board for a care order for X.In a decision of 23 October 2009 the Board allowed the application. It was decided that X would be placed in a foster home and that the first and second applicants should have the right to two contact visits lasting two hours, two times yearly. The extent of the contact rights was set on the basis of, among other things, the assumption that the placement would most likely be long-term.","13.After an appeal by the first and second applicants, the District Court (tingrett) in its judgment of 9 March 2010 upheld the care order and the contact rights set by the Board. Like the Board, it found that the placement would most likely be long-term. It also took account of X\u2019s negative reactions to the contact sessions that had already been carried out, including to the one contact session that had been carried out since the Board\u2019s decision.","14.In January 2012 the first and second applicants lodged an application with the Board to have the care order lifted. The child welfare services, for their part, lodged an application for parental responsibilities to be removed, authorisation to be issued for X to be adopted and the post-adoption contact rights for the first and second applicants to be set.","15.On 8 June 2012 the Board decided to allow the child welfare services\u2019 request. Post-adoption contact was fixed at four hours, twice yearly, under supervision.","16.After an appeal by the first and second applicants, on 19 June 2013 the District Court gave judgment, largely upholding the Board\u2019s decision but setting post-adoption contact at two hours, twice yearly. The District Court had appointed an expert, a psychologist, L.O., to examine whether X had become so attached to his foster home that he could not therefore be returned to his parents; L.O. had confirmed that X had indeed become so attached. The District Court reached the same conclusion, stating, inter alia:","\u201cAs regards the plaintiff\u2019s argument that the lack of attachment between [X] and the parents is due to the child welfare services\u2019 failure to comply with their duty, as set out in section 4-16 of the Child Welfare Act and Article 8 of the European Convention on Human Rights, it is pointed out that the court must decide on the attachment question and what is in [X]\u2019s best interests today, irrespective of the history of the case. The court fully understands that this may seem harsh to the parents, who clearly love [X] and wish him to come home. But the effect on the parents is secondary to the effects on X \u2013 it is his best interests that are the fundamental consideration, and a possible lack of follow-up on the part of the child welfare services cannot take precedence over his best interests when assessing whether severing the attachment [to his foster parents] could lead to serious problems for him.\u201d","17.On 20 September 2013 the High Court (lagmannsrett) granted the first and second applicants leave to appeal against the District Court\u2019s judgment. It noted on that occasion that it had been unfortunate that the District Court had limited L.O.\u2019s mandate to that of examining the issue of X\u2019s attachment to his foster home, instead of that of also examining the first and second applicants\u2019 caring skills. The High Court, composed of three professional judges, one psychologist and one lay person, first held a hearing from 4 until 6 March 2014. After hearing the parties\u2019 presentation of evidence, the High Court decided to postpone the further hearing of the case because it found it necessary to appoint an expert. A psychologist, E.B., was appointed and delivered her report on 25 May 2014. On the issue of the first and second applicants\u2019 caring skills, the report stated, inter alia:","\u201cConclusion:","[The possibilities are] very limited [as to] what conclusions concerning the parents\u2019 caring abilities one may draw on the basis of the observations of the limited contact that has taken place.","However, on the basis of the circumstances surrounding [X\u2019s] placement in care, the parents appear not to have had the possibility to demonstrate their caring skills in full, and they have, given such limited contact, had little opportunity to develop their caring skills to any particular degree.","In the critical period of [X]\u2019s first years, they were clearly unable to care for him. This they also knew themselves, and they therefore sought assistance. It is unknown whether they gradually could have become able to provide care for their son if assistance measures had been directed to a greater degree towards the home situation and a better dialogue with the parents had been entered into at an early stage.","The expert does not find anything in [the first and second applicants\u2019] background history or in their functioning today to indicate that they lack caring skills.\u201d","On the basis of X\u2019s attachment to his foster home, E.B. advised that the care order should not be lifted, as this would seriously harm his development. On that subject, the report stated, inter alia:","\u201c[X] has an attachment to his foster home that makes it impossible to change his care situation without this having major consequences in the form of his development immediately being set back in a way that is not just unfortunate, but also downright harmful. It will not be possible to implement assistance measures that can prevent this.\u201d","The expert furthermore concluded that both adoption and continued foster care had advantages and benefits that had to be taken into account.","18.The hearing then resumed on 5 June 2014. In addition to the court-appointed expert, the psychologist L.O., who had been appointed as an expert by the District Court (see paragraph 16 above), attended the hearing and gave evidence as an expert witness. The first and second applicants attended, together with their legal-aid counsel, and gave evidence. Other evidence included the testimony given by a number of witnesses.","19.In its judgment of 19 June 2014 the High Court decided that the care order had to be upheld because of X\u2019s strong attachment to his foster home. In respect of X being adopted by his foster parents, it noted that this could be beneficial to X because it would offer him increased security and stability. It considered, however, that the foster parents would continue to support X even if he were not adopted, and that the first and second applicants would not in the future be likely to use their procedural rights to have his care order and their contact rights revised in a manner that would be harmful to X. Furthermore, adoption would entail X being cut off from his parents and thereby his ties to Philippine culture, and there were no grounds for assuming that the first and second applicants lacked caring skills. The High Court therefore concluded that it would not be correct to authorise X\u2019s adoption. The High Court noted that post-adoption contact under section 4\u201120a of the Child Welfare Act had been decided (see paragraph38 below), and that adoption would thus not entail X losing all contact with his parents. Such post-adoption contact would be of a very limited extent, however, and in the High Court\u2019s view contact to a more traditional extent would be in X\u2019s best interests. It set contact rights at three-hour visits, four times yearly.","20.The child welfare services appealed to the Supreme Court against the High Court\u2019s judgment in so far as it concerned parental responsibilities and adoption. The extent of post-adoption contact visits, or contact rights if adoption was not permitted, was not made a topic for examination by the Supreme Court. The first and second applicants did not appeal against the High Court\u2019s judgment in so far as it concerned the refusal to lift the care order. During the appeal hearing before the Supreme Court, a video was shown containing footage of several contact sessions between X and the first and second applicants. The video was commented on by a psychologist, T.H., who had been engaged by the second applicant. In other respects, the case heard by the Supreme Court was essentially the same as that which had been heard by the High Court.","21.In its judgment of 30 January 2015 (Norsk Retstidende (Rt.) 2015 page 110) the Supreme Court stated that it would review all aspects of the case and that the review would take place on the basis of the situation as it stood at the time that it gave its judgment. It also stated that the main question was whether adoption would be in the child\u2019s best interests, in accordance with section 4-20 (b) of the Child Welfare Act (see paragraph38 below). However, what was in the child\u2019s best interests was closely linked to the \u201cattachment criterion\u201d specified under 4-20 (a).","22.As concerned the \u201cattachment criterion\u201d, the Supreme Court noted that the Board, the District Court and the High Court had all concluded that it would lead to serious problems for X if he were moved from the foster home.According to the Supreme Court\u2019s assessment, no new information had been presented to it that altered that conclusion. It had to be assumed that X had a deep-rooted and secure attachment to the foster home and his foster parents. The Supreme Court also referred to the statement given by the court-appointed expert before the High Court.","23.Proceeding to the condition that any adoption had to be in the child\u2019s best interests, the Supreme Court stated that a forced adoption strongly affected the biological parents. The emotional pain of having a child adopted normally ran very deep. Family ties that were severed by forced adoption were protected by Article 8 of the Convention and by the Norwegian Constitution. Adoption also constituted an invasive measure for children, and, pursuant to the UN Convention on the Rights of the Child Article 21, could therefore only be decided upon if it was in the best interests of the child. On the other hand, under the first paragraph of Article3 \u00a7 1 of the UN Convention on the Rights of the Child and the Norwegian Constitution, the parent\u2019s interests had to yield in cases where decisive circumstances in respect of the child indicated adoption to be the best course of action. The Supreme Court also referred to the Court\u2019s judgment in Aune v. Norway, no. 52502\/07, 28 October 2010.","24.The Supreme Court then looked at recent parliamentary documents in order to determine whether the legislature had intended to lower the threshold for adoption. It concluded that it had not. Statements in the documents indicated, however, that adoption was a desirable child welfare measure that should be used more often if there was a legal basis for it within the bounds of applicable law and Article 8 of the Convention. The parliamentary documents showed, moreover, that the legislature\u2019s wish for a greater use of adoption was grounded in research-based knowledge. The Supreme Court considered that such general experience and knowledge of the effects of adoption were important in connection with a concrete assessment of whether authorisation should be issued for adoption.","25.The Supreme Court went on to note that in 2010 a provision had been added to the Child Welfare Act (section 4-20a), allowing contact between a child and its biological parents after adoption (what was known as \u201copen adoption\u201d). Contact visits were contingent on the consent of the adoption applicants (adoptivs\u00f8kerne) and on it being in the child\u2019s best interests (see paragraph 38 below).","26.In several previous cases, the Supreme Court had urged the legislature to introduce such a provision. In its judgment of 1 April 1997 (Rt. 1997 page 534), it had maintained that this \u201cwould mean that the advantages for the child of being adopted would not have to be weighed against the advantages of a continued right to access for the biological parents\u201d.","27.While the Supreme Court was not of the opinion that the introduction of legal authority for contact visits had lowered the high threshold for adoption (terskelen for adopsjon), it was of the view that in some cases contact visits would mean that the arguments against adoption would not carry the same weight. The Supreme Court referred to Aune, cited above, \u00a7 78.","28.Proceeding to a concrete assessment of whether adoption was in X\u2019s best interests, the Supreme Court noted that the situation at the time of its judgment was that he had lived virtually his whole life in the foster home, and had been only two and a half months old when he had been taken there. According to the expert assessment conducted by E.B., the psychologist, in the High Court\u2019s view (see paragraph 17 above), he had a minimal attachment to his biological parents, and his secure base was his foster home. He called his foster parents \u201cmummy\u201d and \u201cdaddy\u201d. He had a close and good relationship with the foster parents\u2019 biological son, who was a little older, with a younger girl who was also a foster child in the family, and with the extended family. It was clear from a memorandum from the child welfare services dated 17 October 2014 that X usually used his foster parents\u2019 surname when anyone asked what he was called.","29.The Supreme Court considered that that obviously strong and deeply-rooted attachment to the foster home should be strongly emphasized and that its view was supported by general knowledge regarding such situations. It noted that the primary attachment of very young children who had been placed in a foster home, as in the present case, was often to the foster parents. That consideration was supported by a White Paper on the protection of children\u2019s development (NOU 2012:5: Better protection of children\u2019s development (Bedre beskyttelse av barns utvikling)). At the time of the Supreme Court\u2019s judgment, X had a minimal attachment to the applicants.","30.Another factor that in the Supreme Court\u2019s view carried strong weight was that X was vulnerable and had a special need for security, stability and a predictable life situation. That factor had been emphasised in all the assessments of him that had been carried out, and, at the time of the Supreme Court\u2019s judgment too, he was a child with a special need for security and support. The High Court had referred to the fact that he was described as an insecure child, particularly in new and unfamiliar situations. He had started school by the time that the Supreme Court was considering its judgment, and it had been decided that he should have a special-needs education. The Educational and Psychological Counselling Service (pedagogisk-psykologisk tjeneste \u2013 PPT) had referred to \u201cthe need for an overview and predictability, the security of knowing who will look after him and who he should go to\u201d. It was clear from a statement by X\u2019s contact teacher (kontaktl\u00e6rer) dated 6 November 2014 that he had settled in at school, but that he had problems concentrating and low self-confidence. Within this context, the Supreme Court also referred to a statement by L.O., the psychologist appointed as an expert witness by the District Court (see paragraph 16 above), who had also testified as an expert witness before the High Court (see paragraph 18 above). She had stated:","\u201cIn the High Court, the undersigned maintained the assessment that adoption would be in the child\u2019s best interests. This concerns a child with special-care needs, no attachment to the biological parents, and a special need for stability and calm.\u201d","31.The Supreme Court also considered that, within this context, it was an important factor (et moment) that, for virtually the whole of X\u2019s life, there had been disputes between his biological parents (the first and second applicants) and the municipality, and that new disputes could not be ruled out in future. The Supreme Court did not doubt that the first and second applicants\u2019 were motivated by a wish to ensure a good upbringing for X with them, but emphasised that disputes about care did not contribute to providing the necessary stability and calm for him.","32.The High Court had given decisive weight to the importance of maintaining X\u2019s ties with his biological parents, and particularly his ethnic ties to the Philippines through the first applicant. In the Supreme Court\u2019s view, those considerations were safeguarded through the contact visits, which the District Court had set at twice a year, each with a duration of two hours. The foster parents had taken a positive attitude to the contact visits, and there was every reason to believe that the visiting arrangement would work as intended. As had been stated by the European Court of Human Rights in the Aune case (see Aune, cited above, \u00a7 78), the contact visits meant that X would not be cut off from his roots and his ethnic background.","33.The first and second applicants had argued that Article 8 of the Convention had been violated by the original care order, and by the child welfare services\u2019 not doing more to facilitate reunification. It followed from case-law of the European Court of Human Rights that taking a child into care should normally be seen as a temporary measure, and that the overall purpose of child welfare measures should be reunification.","34.The Supreme Court stated in response that it based its view on the desirability of achieving family reunification, but that it could nonetheless not agree with the first and second applicants\u2019 argument. Their objections to the care order in 2009 \u2013 which, among other things, had related to the first applicant having been hampered by language problems and medication \u2013 had been rejected by the Board and the District Court. The first and second applicants had had relatively frequent contact sessions with X both before and after the stay at the parent-child institution (see paragraph 10 above), and the purpose of the stay at the institution had been to facilitate reunification. It had turned out, however, that the first and second applicants had been incapable of providing X with the necessary care. Nor could the Supreme Court see that the subsequent treatment could be criticised: the care order and the extent of contact had been stipulated after assessments had been made by experts. Nor was there any information that could give reason to conclude that further measures should have been taken to assist the first and second applicants.","35.In any event, it was X\u2019s best interests at the time of the Supreme Court\u2019s judgment that was the decisive factor when assessing whether authorisation for adoption should be issued, and not whether there might have been shortcomings in the authorities\u2019 efforts to return the child to his parents at an earlier and (at the time that the Supreme Court examined the case) past, stage.","36.On the basis of the above, the Supreme Court reached the conclusion that there were especially strong reasons for issuing an authorisation for adoption, and the District Court\u2019s judgment was accordingly upheld."],"164":["6.The applicant was born in 1961 and, together with his wife, a Romanian national, has three children, all boys: A, born in 2000, B, born in 2005, and C, born in 2007.","7.The family moved to Norway in 2013, and on 4 November that year the child welfare service issued emergency care orders for all three children in accordance with section 4-6 of the Child Welfare Act (see paragraph 43 below). The child welfare service had made enquiries into the family\u2019s situation following reports by health personnel, the school health services and the social insurance services, and considered there to be serious concerns in respect of A\u2019s health in particular, and the applicant\u2019s and his wife\u2019s care for all three children in general. The children were deemed to have lived in isolation and to suffer from lack of social stimuli and from pathologisation. They were placed in emergency foster homes the same day \u2013 B and C in the same home. On 4 December 2013 an interim decision was made fixing contact between the applicant and his wife and the three children at twice a month for an hour each time, and under the supervision of the child welfare service, in accordance with the third paragraph of section 4-6.","8.The applicant and his wife appealed against the decisions. On 4December 2013 the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker), represented by the chair of the Board, dismissed the appeals. That decision was not brought before the relevant District Court (tingrett) for review.","9.On 16 December 2013 the child welfare service applied to the Board: for care orders to be issued for the three children; for the children to be placed in foster homes, the whereabouts of which should not be disclosed to the parents; for the applicant and his wife to be deprived of their parental responsibilities; and for the fixing of supervised contact between the parents and the children. The applicant and his wife submitted a notice of intention to defend on 7 February 2014. A hearing of the Board was held on 10, 13 and 14 February 2014.","10.On 24 February 2014 the Board unanimously decided that all three children should be placed in care, and fixed the parents\u2019 contact rights, allowing them to have contact four times a year, each time for one and a half hours. The child welfare service was authorised to supervise the contact sessions. The Board rejected the child-welfare service\u2019s request that the applicant\u2019s and his wife\u2019s parental responsibilities for the children be removed, and the request that the whereabouts of the foster homes not be disclosed to them.","11.In respect of A, the Board relied in particular on his mother\u2019s preoccupation with his suffering from Ehler Danlos syndrome (EDS). It stated that the question of whether or not he had this disease was not decisive. Nor did it question in any way that he had experienced major somatic complaints and significant anxiety about his own health. A had however difficulty concentrating on anything other than EDS, and he held in that context a number of beliefs that originated with his mother. Those included beliefs that he could die from the disease and that he could not go to school or outdoors if he found it cold. He had only very limited or no social interaction and had been unable to name any friends. All in all, his life was almost totally centred around his experience of pain and health complaints, which he believed stemmed from EDS; it was centred around his dependence on vital precautionary measures, particularly in the form of protection, rest and passivity. His level of functioning was significantly lower than would be expected owing to EDS. The Board stated that A\u2019s condition made him \u201ca heavily disabled child\u201d.","12.As to B and C, the Board observed that in the foster home they had both been assessed as having an unusual relationship to illness and pain. Both had difficulties with language and pronunciation and had needed training in eating routines, bathroom routines and dressing. At school they had shown poor social-interaction skills, particularly in relation to their peers. B also had academic shortcomings. The applicant and his wife had on different occasions stated that both boys had symptoms of EDS and that they should be assessed for it. At the same time, good interaction with the applicant had been observed in both boys and they had been described as kind and nice, adaptable and undemanding.","13.Turning to the applicant\u2019s and his wife\u2019s abilities in respect of care, viewed against the children\u2019s care needs, the Board stated that the decisive and very serious issue was their focus on illness and infirmity. This manifested itself primarily in respect of the applicant\u2019s wife in her relationship with A. She had inflicted psychosomatic problems on him and significant anxiety about his own life and future, regardless of whether he had EDS or not. The applicant was assessed as less outgoing and dominant than his wife. The Board found that he had the ability to provide practical care, and that he interacted and played well with B and C. However, both B and C had been described before the Board as having been clearly marked by a lack of stimulation, training and practical experience and the applicant had also focused on illness in relation to all three children. Before the Board he had said that he had an open mind about whether A had EDS. Yet, in other contexts he had clearly expressed his view that he had seen symptoms of the syndrome and wanted B and C to be assessed for the disease. In any event, for the Board the key factor was that the applicant was incapable of seeing what a burden the family\u2019s way of life and his wife were placing on A directly, and on B and C indirectly. The applicant was incapable of creating change or setting boundaries in this connection.","14.Following an overall assessment, the Board arrived at the conclusion that there had been serious neglect: the parents were incapable of providing the stability, structure, personal contact and security that the children needed, given their age and development. In respect of A, the Board emphasised that he showed clearly abnormal psychological development and needed treatment. The applicant and his wife had not had the necessary insight into his needs and had not managed to give him adequate help and developmental support. The Board added that A had suffered material harm and found it highly probable that similar material harm would be caused to B\u2019s and C\u2019s development or health if their care situation remained unchanged.","15.In respect of assistance measures in the home, the Board assessed that it was not possible to create a satisfactory care situation by implementing such measures. The applicant and his wife distrusted the assisting services and any medical assessments that deviated from their own. They also lacked insight into their own practice of providing care and the consequences this had for the children. On this basis, the Board assessed that it would not be possible to create a satisfactory care situation for the children by implementing assistance measures in the home. In conclusion, the criteria in section 4-12 of the Child Welfare Act for taking the children into care had been met (see paragraph 43 below).","16.Proceeding to the question of contact rights, the Board took into account the grounds for the care order, notably the applicant\u2019s and his wife\u2019s inability to understand and satisfy their children\u2019s emotional needs and their lack of insight. On the basis of the facts at that time, the Board believed that the placements in care would last for a prolonged period. Following an overall assessment, it concluded that exceptional and strong reasons did not exist that could lead to a total denial of contact. In respect of supervision, the Board stated that the supervisor should play an active role and facilitate managed contact between A and his parents; a Scandinavian language had to be spoken.","17.On 21 March 2014, the applicant and his wife brought the case before the District Court, which heard the matter on 13 and 16 June 2014. B and C were still placed together in an emergency foster home at that point, while A had been placed in an institution, because his emergency foster carers had found having him too demanding.","18.On 3 July 2014 the District Court upheld the Board\u2019s decision to issue care orders for all three children. It gave the applicant and his wife the right to have contact with A twice a year for one and a half hours each time, and the right to have contact with B and C four times a year for one and a half hours each time.","19.As to A, the District Court stated that it was possible that the question of whether he had EDS had been better elucidated before it than before the Board. Whether or not he suffered from that disease was not important to its decision, however. The judges\u2019 conversation with A (dommersamtalen) had given the District Court the strong impression that the Board\u2019s description of him as a child in need of help was correct. It had also given the strong impression that the child welfare service was right in stating that he was preoccupied with the issue of illness, and that his entire life centred around this question. This had had very serious consequences in the form of impaired functionality caused by psychologically abnormal development that had prevented him from developing his potential, or \u201cmaking the best of his situation\u201d.","20.As to B and C, the District Court observed that prior to their being taken into care, they had been described as having been affected by a lack of stimulation, training and practical experience. Around the time of the interim care order of 4 and 5 November 2013, the applicant had expressed the view, among other things, that they displayed at least as many symptoms of EDS as A, if not more. In contrast, the children had functioned well in the emergency foster home. Neither illness nor pains had been an issue since they had been taken into care. They had not been absent from school due to illness. They had also shown progress in relation to their personal hygiene and learning to dress themselves. The District Court found that, in order to prevent further abnormal development, it was also in B\u2019s and C\u2019s best interests that their care orders be upheld. It therefore confirmed the Board\u2019s decision. Moreover, there were no grounds for changing the decision of the Board on contact rights in respect of them.","21.On 12 August 2014 the applicant and his wife appealed against the District Court\u2019s judgment in its entirety.","22.On 26 January 2015 the High Court (lagmannsrett) appointed a psychologist, K.K., as an expert to assess the case. She submitted a written report on 31 May 2015, which concluded that all three children had significant care and assistance needs. According to the expert, the parents could not meet these needs, partly due to what had most likely been unsatisfactory care which had contributed to the boys\u2019 considerable functional and developmental difficulties, and partly because the parents did not show insight into the boys\u2019 problems, insisting instead that these were exclusively caused by the presumed somatic illness and by the placement in care itself. For the same reasons, the expert considered that potential assistance measures in the home were not feasible. In her view, contact between the parents and the children should also be very infrequent and managed and controlled as much as possible.","23.In her assessment of A, the expert stated that there had been serious cause for concern about a lack of boundaries, social stimulation, routines and pathologisation (sykeliggj\u00f8ring) over different periods, and this had culminated in 2013 after the move to Norway, in connection with A\u2019s deteriorating condition and functioning at school. She further stated that when he had been placed in care, A had been described as a boy with considerable motor difficulties, anxiety about the consequences of the illness and pain, dependence on his mother and his mother\u2019s understanding of reality, and rigidity in relation to routines and behavioural patterns underpinned by the parents. When assessed by the expert, he had still lacked the skills, knowledge and preferences normally seen in boys of his age and, based on the situation at the time, she considered that he would not be able to manage by himself in society in the way expected of a boy of his age for a long time. In the expert\u2019s view, A should undergo as soon as possible a thorough assessment to determine whether he had a serious child psychiatric disorder. This would entail having a care situation in which the main care providers cooperated in the assessment, followed up the professional recommendations that were made, and established a relationship with A that made it possible for him to trust them, while at the same time challenging him to cope with and explore the world around him.","24.In respect of B, the expert stated that in his case, also, there was a lot of information that gave cause for concern and elements that could not be regarded as a normal reaction to being taken into care and placed in a foster home. This applied to B\u2019s \u201cphysical reactions in emotionally challenging situations, his language difficulties, his inability in relation to self\u2011achievement and self\u2011assertion, and his lack of understanding of social codes\u201d. In the expert\u2019s view, B\u2019s difficulties, as with A, were primarily connected to his previous care situation and early relationships. They could also be related to biological or genetic factors, in which case they were amplified. As a result, B needed a predictable care situation that facilitated further positive development, and treatment of the developmental difficulties described above. His care providers would have to cooperate with health personnel, accept guidance and follow up the advice given, so that his development would be ensured as far as possible.","25.Turning to C, the expert stated that he was the youngest and had spent the shortest time in the care of his parents. \u201cPossibly as a result of this\u201d, he appeared to be the child with the fewest symptoms of the three, and his symptoms differed from those of his brothers. He appeared to be the one who functioned \u201cclosest to the normal range, despite having difficulties in relation to language and conceptual understanding, as well as emotional regulation, although he seems to be more prone to being uninhibited than withdrawn [(selv om ogs\u00e5 han har vanskeligheter i forhold til spr\u00e5k- og begrepsapparat, samt emosjonell regulering \u2013 om enn mer ut- enn innag[]erende)]\u201d. It was possible that some of his behavioural problems were less related to his care situation and more to the uncertainty about the duration of the placement and where he would live in the future. With regard to his future care needs, like his brothers, he was seen as needing a stable and predictable care situation where his development was supported within a framework of cooperation with an ordinary school and the health services. It would be particularly important for him to have reassurance about where he would live and who was to care for him.","26.In respect of the applicant and his wife, the expert stated that they probably did not meet the criteria for Munchausen\u2019s syndrome by proxy diagnosis. There was, however, much to indicate that, by focusing on and amplifying the children\u2019s more or less serious health problems, and by caring for their children in a relatively isolated family system, they had not provided sufficient developmental support and had contributed significantly to the children\u2019s reduced level of functioning. The expert added that it could not be ruled out that there were other factors that had contributed to development in the same direction, factors which, because of the circumstances, it had not been possible to uncover. In her assessment, no information was available at the time that indicated that the applicant and his wife had sufficient ability in terms of providing care to satisfy their children\u2019s special material, emotional, cognitive and psychosocial needs.","27.On 11 June 2015 the Commission on Child Welfare Experts (Barnesakkyndig kommisjon) stated that it had no remarks to make on the expert\u2019s report.","28.The appeal hearing was held from 16 to 18 June 2015, with the High Court\u2019s bench composed of three professional judges, one psychologist and one lay person, pursuant to section 36-10 of the Dispute Act (see paragraph 45 below). The applicant and his wife, assisted by counsel, gave evidence. The child welfare service was represented by counsel and one representative. Eleven witnesses were heard, including two medical experts and A. A court-appointed representative (talsperson) for the children \u2013 who had had conversations with the children and had prepared a written report on 8 May 2015 \u2013 also gave evidence; so did the expert, K.K., who testified after the presentation of the other evidence, elaborating on her written report, and maintaining her conclusion in the case with the same certitude.","29.B and C were placed together in a foster home at that time. B went to the foster home in July 2014 and C in September that year, while A remained at the institution (see paragraph 17 above).","30.In its unanimous judgment of 2 July 2015 the High Court reiterated at the outset that a decision to issue a care order entailed a child being removed from his or her parents and others taking over his or her care on behalf of the child welfare service, without the parents thereby being deprived of parental responsibilities. This was a highly invasive measure, both for the parents and the child; in principle, parents should care for their children themselves in accordance with \u201cthe biological principle\u201d. Care orders could accordingly only be issued when \u201cnecessary\u201d, based on the child\u2019s situation at the time, and should not be issued if satisfactory conditions could be created by assistance measures. Decisive weight should be attached to finding measures in the children\u2019s best interests, and the circumstances at the time of the judgment would be decisive. The best interests of the children had to be a \u201cfundamental consideration\u201d pursuant to the Norwegian Constitution.","31.The High Court went on to note that, in principle, a decision by the County Social Welfare Board should be assessed pursuant to the conditions for issuing a care order in section 4-12 of the Child Welfare Act \u2013 even if children had been placed in care \u2013 and not as a case where a care order was being revoked under section 4-21 (see paragraph 43 below). However, if the conditions for issuing a care order set out in section 4-12 had not been met, or it was deemed that there was a doubt under the second sentence of the first paragraph of section 4-21, it was necessary to consider whether the children had become so attached to the people with whom they were living and their living environment that, on the basis of an overall assessment, removing them could cause serious problems. The decisive factor would be whether returning them to the parents (tilbakef\u00f8ring) would entail an actual risk of significant harmful effects in the long term, as stated in the case-law of the Supreme Court.","32.Proceeding to the circumstances of the instant case, the High Court reiterated that both the Board and the District Court had found that the criteria for issuing care orders had been met in respect of all three children.","33.Since the District Court\u2019s judgment, A\u2019s health issues, including EDS, had been further clarified. A discharge report from a hospital stated, inter alia, that for the last year he had had to use a wheelchair a lot of the time; he had a significantly lower level of functioning than the clinical findings would suggest; he displayed \u201cseveral symptoms associated with different (serious) child psychiatric diagnoses\u201d; and it was unknown whether the symptoms were a manifestation of a child psychiatric \u201ccondition and\/or the result of difficult conditions growing up\/a difficult life situation\u201d.","34.As to the children\u2019s views, obtained by way of their representative (see paragraph 28 above) and A\u2019s testimony, the High Court stated that A \u201chad clearly asserted that he [had been] unhappy at the institution and thought it [had been] very unfair that he [had not been able to] move home to his family, where he [had had] a better life in all respects\u201d. With regard to B, it had emerged that he had wanted to live where he had been at the time, but that he had wanted to \u201csee his parents sometimes\u201d. C had said that he \u201cwould [have] like[d] to move home to his parents\u201d, but that it had been \u201cfine\u201d if he had continued to live where he had been.","35.In its judgment \u2013 although in doubt (under tvil) \u2013 the High Court concluded that it had not been proved that any of the conditions for issuing a care order for a child under (a) to (d) of the first paragraph of section 4-12 of the Child Welfare Act had been satisfied. This applied to all three children in the case and had to do with the High Court finding it difficult to assess the parents\u2019 ability to provide care, since at the time they did not live with the children in question and had not done so for a prolonged period. In this context, it pointed out that no expert had been engaged to examine the care situation at the time the family lived together and that the family had lived in Sweden prior to moving to Norway, and a Swedish court had at that time concluded that there was no basis for asserting that A was suffering harm at home.","36.The High Court further stated that, while the child welfare service in 2013 had had grounds to investigate circumstances that could have constituted grounds for implementing measures at the family home (tiltak i hjemmet), and that had been discussed in meetings, no further assistance measures had been decided on before the emergency care order had been issued on 4 November 2013 (see paragraph 7 above). The High Court noted, moreover, that the child welfare service had previously disagreed with the parents that A had EDS and had created the suspicion that they suffered from Munchausen\u2019s syndrome by proxy, which could have had an impact on the decisions that had been made in the case and how the case had been dealt with. It went on to state that it had mainly been A\u2019s, and not B\u2019s and C\u2019s, personal circumstances that had formed the basis for the child welfare authorities\u2019 concern and investigations in 2013. From the decisions of the lower instances, it appeared that the care order for A had been primarily based on the applicant\u2019s and his wife\u2019s neglect in relation to A\u2019s personal and significant functional impairment \u2013 which the authorities had ascribed to circumstances on the part of the applicant and his wife \u2013 and that the care orders for B and C seemed to be more an effect or a consequence of this, without there being considerably more specific information about them (uten noe vesentlig mer konkret om dem). To the High Court it seemed, all in all, that A\u2019s health had been unusually challenging for both him and his parents. This could explain why the applicant and his wife had been very preoccupied with illness in relation to A, and also their anxiety about B and C. The lack of understanding about the illness displayed by the support services and health services could also have been very stressful.","37.The High Court stated that the court-appointed expert\u2019s considerations gave cause for serious concern about the parents\u2019 overall ability to provide care for three children with special needs. At the same time, A was in more or less the same very difficult situation as before, even after staying first in an emergency foster home and later in a youth care home. In the High Court\u2019s view, the care order for him was not necessary as satisfactory conditions could be created for him using assistance measures. Implementation of such measures should have been attempted to a greater extent before A had been taken into care; at the time of the High Court\u2019s judgment, the parents had stated that they were both willing and able to cooperate with the support services. The High Court was of the view that, at that time, there had been a better basis for cooperation, as A\u2019s diagnoses had been clarified and everyone had been in a better position to attend to his needs relating to his health and functional impairment. The High Court also emphasised that A was very unhappy at the youth care home and that he had expressed a clear and strong wish to move back in with his parents. In the circumstances, there did not seem to be any suitable alternative other than A\u2019s living with his parents, with extensive assistance measures implemented in the home to ensure that his care needs were attended to, before the recommended psychiatric treatment or care was initiated following a more thorough assessment. All in all, this would be in A\u2019s best interests.","38.Turning to B and C, at the time ten and eight years old respectively, the High Court observed that they had lived in their joint foster home for nearly a year, and before that in the same emergency foster home. Their representative (see paragraph 28 above) had stated that in May 2015 B had thought that moving to a new foster home had been \u201cpretty bad\u201d, but that he had been happy then. When the court-appointed expert K.K. had spoken to B and C about their lives in the foster home, they had \u201csmiled and said that it [had been] nice\u201d and said that they \u201c[had done] many different things\u201d and that \u201cthe adults [had been] kind\u201d. B\u2019s and C\u2019s special needs teacher at the school, where they had been in Year Two and Year Four respectively, had stated that she had seen that they had settled in and had felt secure and been positive. For the High Court, there was no information to the contrary or which gave reason to doubt this.","39.In the view of the High Court, moving B and C could lead to serious problems and entail a real risk of harmful effects to them in the long term. The conditions for discontinuing their foster care under section 4-21 of the Child Welfare Act had therefore not been met (see paragraph 43 below). The applicant and his wife would have the important task of caring for A, who was a teenager with special needs that demanded extensive assistance measures. The overall burden on them of providing care for all three children, each with their special needs, was thought to be too difficult and demanding for them at the time of the High Court\u2019s judgment. B and C had \u201csignificant care and assistance needs\u201d (store hjelpe- og omsorgsbehov), as had been concluded and described by the court-appointed expert. Both of them had shown positive development in the foster home, including in connection with their schooling, academic and social development, and daily washing, eating and hygiene routines. Based on their age and development, the High Court found that significant weight should not be placed on B\u2019s and C\u2019s opinion in the case. Both of them were understood to be vulnerable in the circumstances, and they should not be subjected to the real risk of significant harmful effects on their development as children and youths. Returning them to the applicant and his wife was not considered to be in their best interests at the time.","40.The High Court found that the applicant and his wife should have rights to contact with both B and C, six times a year for six hours each time under supervision. Their placement in care was expected to be long\u2011term and the purpose of contact would be to allow them to become acquainted with their biological roots, with a view to possible subsequent attachment when they were older. The High Court also took into account that the three brothers missed each other and should be given an opportunity to maintain contact. The High Court lastly stated that, since its responsibility was to fix only the \u201cminimum scope of contact\u201d (minimumssamv\u00e6r), it would be left to the child welfare service to consent to contact of a greater scope than that set out in its judgment.","41.On 15 September 2015 the Supreme Court\u2019s Committee on Leave to Appeal (H\u00f8yesteretts ankeutvalg) refused the applicants leave to appeal against the High Court\u2019s judgment."],"165":["A list of the applicants is set out in the appendix. They were represented by the first applicant and \u00d6. Bildik, lawyers practising in Bursa.","The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.","The circumstances of the case","1. The facts of the case, as submitted by the parties and as can be seen from the documents in the file, may be summarised as follows.","2. The applicants live in the Province of Bursa, in the town of Orhangazi. At the time of the events in question, a lime production plant with a quarry (\u201cthe Plant\u201d) was operational in the vicinity of their town. According to the applicants, the distance of the Plant from their homes was 500 metres, whereas according to the Government the distance was 980 metres.","3. On 28 July 2006 the applicants Erol \u00c7i\u00e7ek and Serdar Ata (\u201cthe first two applicants\u201d) and their representative, Ms \u00d6. Bildik, signed a petition addressed to the Bursa Governor \u2019 s office, calling for the closure of the Plant on account of toxic emissions being released into the air which, according to the applicants, were conveyed in the wind towards their town, thus causing air pollution. They further submitted that the Plant was operating without the necessary permits and licences, that it had not undergone an environmental impact assessment and that it lacked a sanitary buffer zone. They further submitted that the Plant, on account of its toxic activity, should have been classified as a first category unhygienic facility ( birinci s\u0131n\u0131f gayri-s\u0131hhi m\u00fcessese ) and as such should be shut down pursuant to the regulations on unhygienic facilities. In that respect they quoted section 22 of those regulations, which provided that first category unhygienic facilities operating without a trial period or ordinary permit would be shut down.","4. On 11 September 2006 the Bursa Governor \u2019 s office replied to the applicants, stating that steps had been taken to test the air quality in the vicinity of the Plant pursuant to the Regulation on the Control of Air Pollution emanating from Industrial Facilities (\u201cAir Pollution Regulations\u201d) and that they would evaluate the situation after receiving the results of those tests.","5. On 20 October 2006 the first two applicants lodged a case with the Bursa Administrative Court, requesting that the reply from the Bursa Governor \u2019 s office of 11 September 2006 \u2013 which they considered to be an implicit refusal to shut down the Plant \u2013 be set aside.","6. During the proceedings, the Bursa Administrative Court asked the Bursa Governor \u2019 s office to clarify and substantiate with official documents whether the Plant possessed the necessary permits, licences and assessment reports for it to operate legally. It further added that if the Plant had no operating licence, the administration would have to explain why it had decided to consider the applicants \u2019 petition as contingent only upon the results of the air pollution test. Finally, it asked the administration to state whether the Plant had been classified as an unhygienic facility and if so under which category.","7. On 22 January 2007 the Bursa Administrative Court found that the steps taken by the Bursa Governor \u2019 s office with regard to the applicants \u2019 complaints had not been in accordance with the law principally because the Bursa Governor \u2019 s office had not verified whether the Plant operated with the required permits and licences but had limited itself to asking from the Plant to produce an air quality report and carried out no further inspection. The Bursa Administrative Court therefore decided to set aside the Bursa Governor \u2019 s reply of 11 September 2006. No finding was made by that court regarding the applicants \u2019 request for the closure of the Plant. The Bursa Administrative Court \u2019 s decision shows that the Plant had started to operate in 1989, producing lime and aggregates, and that on 14 May 2003 the Bursa Governor \u2019 s office had decided that the Plant need not be subject to an environmental impact assessment for its planned calcite quarry operations. On 17 February 2006 the Plant had made an application to the Ministry of the Environment with a view to obtaining an emissions permit by submitting a technical emissions report which had been prepared pursuant to the Air Pollution Regulations. The Bursa Administrative Court added that the administration had failed to demonstrate that this permit had been obtained. It then noted that the Plant had an operating permit for lime production and the running of a limestone quarry but that the administration had failed to state whether it had also been classified as an unhygienic facility. Finally, it was noted by the court that subsequent to the applicants \u2019 petition, on 8 September 2006 the administration had asked the Plant to submit an updated air quality report in accordance with the Air Pollution Regulations. In response, the Plant had only provided the administration with an air quality test report dated 22 November 2005, replying that it was not required to undergo an updated test.","8. In finding for the applicants, the Bursa Administrative Court gave its reasons as follows:","\u201cIn accordance with the Regulation on the Control of Air Pollution emanating from Industrial Facilities, in order to establish whether a facility \u2013 irrespective of whether its operations are subject to a permit or not \u2013 causes harm to the environment, the relevant administrative authorities must require the facility to obtain an emissions report from an expert designated by the relevant administrative authority in order to assess the emission levels emanating from the facility or the effects of such emissions on air quality. Furthermore the relevant administration authority must verify, through a designated expert, whether the facilities whose operations are subject to a permit carry on their operations in accordance with the rules and regulations set out in that regulation. Such facilities must have an emissions permit and operate within the limits of emissions regulations. The activities of those facilities which do not have an emissions permit or which do have a permit but carry on their operations in violation of their specific emissions commitments must be halted so that necessary precautions can be put in place.","In the present case, the course of action that had to be followed by the Bursa Governor \u2019 s office pursuant to the plaintiffs \u2019 request was to establish first whether the impugned Plant had in place the necessary permits and operating licence. If those were found to be lacking, the Bursa Governor \u2019 s office would need to contact the relevant ministry of the administrative department so that they could take the necessary action against the Plant. On the other hand, if the Plant had the necessary permits and operating licence, the Bursa Governor \u2019 s office would need to establish by a designated expert whether its operations caused harm to the environment and health of the citizens. In this case, if harm were to be established, the Plant \u2019 s operation would need to be suspended so that the company could bring it into line with environmental protection regulations. In other words, the Bursa Governor \u2019 s office should first have established whether the Plant was operating legally with all the necessary permits and operating licence; and if so and only then, the Governor \u2019 s office could move on to determine whether the Plant caused environmental harm and take the necessary administrative steps. That being so, the Bursa Governor \u2019 s office confined itself to only asking from the Plant to obtain an air quality report and replied to the plaintiffs that it would evaluate its course of action based on the outcome of that report. Having regard to the foregoing, and further to the fact that the Plant did not even submit a recent air quality report and no other inspections other than a discharge permit verification was carried out, the Bursa Governor \u2019 s office \u2019 s reply of 11 September 2006 was not in accordance with the law.\u201d","9. The Bursa Administrative Court \u2019 s decision, which was amenable to appeal, was only appealed by the Bursa Governor \u2019 s office. On 19 January 2009 the Supreme Administrative Court dismissed their appeal by holding that the Bursa Administrative Court \u2019 s decision had been in accordance with the law and procedure.","Developments after the introduction of the application","10. The Plant stopped its lime production and quarry operations on an unspecified date in 2010 and moved to the town of Gedelek, which is approximately 11 kilometres from its previous location. It was issued with a decision that an environmental impact assessment was not necessary with respect to its planned operations in the new location. In their observations the Government submitted an environmental permit given to the new Plant valid from 22 November 2016 to 22 November 2021 subject to the emissions limits established in the Air Pollution Regulations as updated on 3 July 2009.","Relevant domestic law","11. A description of the relevant law with respect to the right to living in a healthy environment and the duty of the domestic authorities to enforce court judgments can be found in Okyay and Others v. Turkey (no. 36220\/97, \u00a7\u00a7 46, 50 and 57-59, ECHR 2005 \u2011 VII)."],"166":["1. The applicant, Ms El\u017cbieta Arendarczuk, is a Polish national who was born in 1947 and lives in Wroc\u0142aw. She was represented before the Court by Mr A. Pietryka, a lawyer practising in Warsaw.","2. The Polish Government (\u201cthe Government\u201d) were represented by their Agent, Mrs J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.","The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","Medical care provided to the applicant \u2019 s son in detention","4. The applicant \u2019 s son, P.A., was born in 1980. As a child P.A. was hospitalised on several occasions on account of rheumatoid arthritis. When he turned eighteen he was also diagnosed with nephritis.","5. On 16 February 2012 P.A. began serving a prison sentence in Wroc\u0142aw Detention Centre no. 2. At the time of his arrival he informed the authorities that he suffered from rheumatoid arthritis and nephritis. He also stated that he had been in remission for three years and generally felt well.","6. On 20 February 2012 P.A. had a consultation with an ophthalmologist, owing to a suspected eye infection. On the same date he had an X-ray examination, which did not reveal any pathological changes.","7. On 25 April 2012 P.A. complained of back pain. He was prescribed medication.","8. In September 2012 P.A. began to complain of pain in his legs and a swollen knee.","9. On 6 September 2012 P.A. underwent a standard medical check. He was interviewed and examined by a prison doctor, who prescribed him antibiotics and painkillers. The following day, he was examined by a neurologist and was given antibiotics and painkillers.","10. On 12 September 2012 P.A. asked to have a consultation with a rheumatologist, but his request was refused.","11. On 13 September 2012 P.A. was transported to Detention Centre no. 1 in Wroc\u0142aw, where he was examined by a specialist in internal medicine. The doctor recommended that P.A. consult a rheumatologist, an ophthalmologist and a nephrologist. He was ordered to have a knee X \u2011 ray, a heart ultrasound and blood and urine analysis.","12. On 14 September 2012 a prison doctor obtained an appointment for P.A. for a medical consultation with a civilian rheumatologist. The appointment was scheduled for 20 November 2012.","13. Subsequently, P.A. saw the prison doctor on several occasions, complaining of knee pain and fever.","14. On 18 September 2012 P.A. complained to the prison division of the Wroc\u0142aw District Court of inadequate medical treatment. He stated that he had suffered from rheumatoid arthritis since childhood and, in his view, the symptoms had returned, however the treatment he had been receiving was not adequate. In his reply of 25 October 2012, the Director of Detention Centre no. 2 in Wroc\u0142aw found that the allegations about inadequate medical care were unfounded.","15. On 19 September 2012 P.A had a consultation with an orthopaedist, who ordered treatment: \u201cin accordance with the rheumatologist \u2019 s recommendations\u201d.","16. On 26 September 2012 P.A had a knee X-ray.","17. On 2 October 2012 P.A. was again examined by a specialist in internal medicine from Detention Centre no. 1. That doctor noted that the swelling on the knee was \u201csmaller than it had been previously, and less painful\u201d.","18. On 3, 5 and 8 October 2012 P.A. was again examined by a prison doctor.","19. On 23 October 2012 the prison medical services had a telephone consultation with a specialist about P.A. \u2019 s condition. It was noted that he was swollen.","20. On the evening of 26 October 2012 an ambulance was called out to assist P.A. An emergency doctor examined P.A., diagnosed him with swelling of the lower leg, and noted that he had previously undergone nephrological treatment. P.A. was transported to the prison hospital in Detention Centre no. 1, and was diagnosed with swelling, nephritis and rheumatoid arthritis. He underwent several medical tests.","21. On 30 October 2012 the director of the prison hospital had a consultation with the head of the neurological ward of a civilian hospital about P.A. \u2019 s case. It was decided that he should continue to receive treatment for his skin inflammation in the prison hospital. It was also decided that he should have a consultation with a laryngologist and a dentist, and subsequently be transferred to the nephrology ward of a civilian hospital in order to have a biopsy and further specialist treatment.","22. On 31 October 2012 prison medical staff attempted, unsuccessfully, to obtain a date for P.A. to have a consultation with a nephrologist.","23. On 7 November 2012 P.A. had a consultation with a laryngologist.","24. On 8 November 2012 P.A. \u2019 s condition deteriorated and anuria was observed. On the same day he was transferred to a civilian hospital in Wroc\u0142aw. He was diagnosed with acute renal failure, sepsis and cardiorespiratory failure. Despite medical attention, P.A. died on 12 November 2012.","Investigation into the applicant \u2019 s son \u2019 s death","25. On 12 November 2012 the Wroc\u0142aw Psie Pole District Prosecutor opened an investigation into the death of the applicant \u2019 s son. On the same date an autopsy was carried out.","26. On 29 November 2012 the applicant herself filed a criminal complaint, alleging that her son had died as a result of negligence and medical errors committed by the prison staff and doctors at Detention Centre no. 1 and Detention Centre no. 2 in Wroc\u0142aw.","27. Subsequently, the prosecutor heard evidence from the doctors and medical staff who had provided care to P.A. in both detention centres and the civilian hospital in Wroc\u0142aw. He took evidence from P.A. \u2019 s fellow inmates and the prison staff. The prosecutor also obtained P.A. \u2019 s medical records from the prison hospitals and the civilian hospital in Wroc\u0142aw, and records concerning his previous treatment which dated back to his early childhood.","28. On 4 April 2013 the prosecutor obtained the autopsy report in respect of P.A. According to its conclusions, P.A. had died of multiple organ failure with features of haemorrhagic diatheses most probably caused by sepsis.","29. On 28 June 2013 the prosecutor stayed the proceedings and decided to obtain a medical opinion from an institute of forensic medicine. Despite the decision to stay the proceedings, four witnesses were questioned.","30. On 21 August 2013 the prosecutor asked experts from the Department of Forensic Medicine at Katowice Medical University to prepare an opinion with regard to the quality of the diagnosis and treatment afforded to P.A.","31. On 24 July 2014 the experts submitted their opinion to the prosecutor. They noted that P.A. \u2019 s death had been caused by multiple organ failure. The whole chain reaction of his pathological problems had been caused by the recurrence of his rheumatoid arthritis and the aggravation of his nephritis. They noted that there had been a delay in scheduling a consultation with a nephrologist and a rheumatologist. At the same time, they acknowledged that the date of 20 November 2012 for a consultation with a rheumatologist had not been unreasonable, given the general situation of the Polish health services. They were of the opinion that it would have been more beneficial for the patient if he could have been treated in the rheumatological ward of a specialist hospital from the moment when the first symptoms had appeared. Owing to the particular form which his illness had taken, treatment by an experienced team of specialists from a civilian hospital would have been optimal, and might perhaps have provided him with a better chance of healing. At the same time, the experts noted that P.A. had not required any specific equipment or procedures which had not been available in a prison hospital. In their view, only the decision to discontinue the treatment with immunosuppressants on 29 October 2012 was questionable. They concluded that while the ambulatory treatment which P.A. had received in Detention Centre no. 2 and the treatment which he had received in the prison hospital of Detention Centre no. 1 had not been optimal, it had been in accordance with standard procedures and had guaranteed the correct solutions appropriate to his condition.","32. On 28 July 2014 the prosecutor resumed the investigation.","33. Subsequently, on 31 July 2014 the Wroc\u0142aw District Prosecutor decided to discontinue the investigation. Referring to the experts \u2019 opinion, the prosecutor considered that the death of the applicant \u2019 s son had been a consequence of simultaneous chronic conditions. The doctors who had provided care for him in Detention Centre no. 2, the prison hospital of Detention Centre no. 1 and the Wroc\u0142aw Specialist Hospital had not exposed him to a direct risk of death or grievous bodily harm, and had not caused his death. The prosecutor concluded that P.A \u2019 s death had been caused by his illness, and not by the doctors \u2019 negligence.","34. On 18 August 2014 the applicant \u2019 s lawyer filed an appeal. He alleged in particular that the prosecutor had failed to examine why P.A. had not had a consultation with a rheumatologist, despite his complaints that he was suffering from rheumatoid arthritis. He also referred to the fact that on 13 September 2012 the prison doctor had advised that P.A. should have a consultation with a nephrologist, and only on 31 October 2012 had prison medical staff attempted to obtain a date for such an appointment. In addition, he complained of a number of procedural errors on the part of the prosecutor.","35. On 5 February 2015 the Wroc\u0142aw District Court dismissed the appeal, reiterating the prosecutor \u2019 s findings that there were no circumstances indicating that an offence of exposing a person to a direct risk of death, grievous bodily harm, or unintentional homicide had been committed. The court established that the applicant \u2019 s son had received adequate medical care in all three institutions, and concluded that the prosecutor \u2019 s decision should be upheld. This decision was final and not subject to any other appeal.","Relevant domestic law and practiceCivil remedies","Civil remedies","Civil remedies","36. Articles 415 et seq. of the Civil Code provide for liability in tort. Under these provisions, whoever by his or her fault causes damage to another person is obliged to redress it.","37. Pursuant to Article 444 of the Civil Code, in cases of bodily injury or harm to health, a perpetrator will be liable to cover all pecuniary damage resulting from such acts.","38. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation.","The Criminal Code","39. Article 155 of the Criminal Code provides that a person who unintentionally causes the death of another human being shall be liable to a sentence of imprisonment of between three months and five years"],"167":["A.Events of 17 November 2014","5.On 17 November 2014 at 1.30 a.m. the Slovak Border and Foreigners Police (\u201cthe police\u201d) apprehended, near the Ukrainian border, the nineteen applicants, together with other Afghan nationals. The applicants were found hidden in a truck whose driver fled after the police patrol had followed the vehicle which had not reacted to warning signs; none of them were carrying identity documents.","6.According to the Government, thirty-two persons, including the applicants, were subsequently taken to the border police station in Petrovce (\u201cthe police station\u201d) for the purposes of an identity check. Ten police officers were assigned to record their statements and document their cases; other officers were involved in undertaking certain actions around the site where the applicants had been apprehended and in providing transfers to the police station. A Persian-language translator was present from 9 a.m. for twenty-four hours and assisted the police in their dealings with the applicants. As to the other thirteen persons (the persons other than the nineteen applicants) brought to the police station, one of them was taken for a medical examination; the remaining twelve (five men, five women and two children) \u2013 who had asked for asylum \u2013 were transferred to a reception centre for asylum seekers on 18 November 2014 at 2 a.m. The Government provided a copy of the note on that transfer, which contained the names of the persons concerned.","7.The Government submitted, in respect of the applicants, the following documents, dated 17 November 2014, most of which were signed by the applicants and the interpreter:","-official notes, according to which the applicants had been brought to the police station for the purposes of establishing their identity;","-transcripts of oral explanations provided by the applicants concerning their irregular border-crossing; according to those transcripts, all the applicants had answered in the negative when asked by the police whether they had suffered persecution in their country of origin and whether they wished to seek asylum in Slovakia, stating that they had left Afghanistan for economic reasons and wanted to go to Germany;","-documents whereby the applicants had been informed of the commencement of the proceedings on their administrative expulsion and of their right to legal aid;","-transcripts of the interviews conducted with the applicants in their capacity as parties to the expulsion proceedings, whereby they had declared that they had not suffered any kind of persecution in Afghanistan nor been sentenced to death there;","-documents whereby each applicant had been informed of the possibility to comment on the contents of his respective case file and to adduce evidence, neither of which possibilities the applicants had used;","-police decisions, rendered individually in respect of each applicant but with the same wording, on the applicants\u2019 administrative expulsion to Ukraine on the basis of sections 77 \u00a7 1 and 82 \u00a7 1 (a) of the Aliens Act (Law no.404\/2011 Coll., as amended), including a three-year ban on re-entering Slovak territory under Article 82 \u00a7 3 (b); pursuant to Article83\u00a72(a) of the Aliens Act, the applicants had not been given any time-limit in respect of their voluntary departure, and the suspensive effect of any possible appeal had been excluded on the grounds of urgent public interest, pursuant to section 55(2) of the Administrative Proceedings Act (Law no.71\/1967 Coll., as amended); according to the instruction at the end of each decision regarding available remedies, an appeal against a decision could be lodged within fifteen days of the respective applicant being notified of that decision, and any subsequent decision was reviewable by a court; according to the note on the last page of that instruction, the decisions in question had been handed over to the applicants, as affirmed by the applicants\u2019 and the interpreter\u2019s signatures;","-documents whereby the applicants had been informed that their personal data would be registered in the information systems of the Slovak Ministry of Interior, in the EURODAC system, and in the Schengen information system;","-documents whereby the applicants had been informed of the possibility for them to ask the International Organization for Migration to be voluntarily returned to their home country;","-requests for the readmission of the applicants to Ukraine, issued by the police in a simplified procedure; documents certifying that the applicants had been returned to the Ukrainian authorities at 10.30 p.m. on 17November 2014; and official notes on the execution of the expulsion decisions.","8.According to the above documents, all the interviews lasted exactly ten minutes and were conducted by two police officers in the presence of the interpreter. The times of some interviews, as given in the documents, overlapped \u2013 for example, between 9.20 a.m. and 9.30 a.m. two police officers and the same interpreter were recorded as being present at three different interviews. The questions were standardised, and most of the applicants\u2019 recorded answers were identical; the only difference was in the respective amounts of money the applicants were recorded as having in their possession.","9.Before the Court, the applicants submitted that the police had not properly identified all of them, that only a few of them had been interviewed, and that they had been made to sign documents of unknown content in the Slovak language, having been told that those documents related to their asylum requests and that they would be transferred to a reception centre for asylum seekers. They also maintained that they had been given no information regarding the asylum procedure in Slovakia; they had nevertheless approached police officers with requests for asylum and for legal assistance, but the police had ignored them \u2013 even though they had transferred the remaining twelve persons to an establishment for asylum seekers. Moreover, the interpreter was present for a few hours only, as affirmed by the transcripts of the interviews, according to which all those interviews had taken place between 9.10 a.m. and 12.30 p.m.","10.It appears from the expulsion decisions of 17 November 2014 that the police took into account the economic situation of the applicants and the absence of any family ties in Slovakia, and that they examined the existence of any obstacles to the administrative expulsion, within the meaning of section 81 of the Aliens Act and with regard to Articles 3 and 8 of the Convention. In that the police also based their standpoint on the statements made by the applicants, who had not alleged any interference with their private and family life in Ukraine or any risk of torture, inhuman or degrading treatment or punishment if they were returned there. The police furthermore emphasised that the applicants were not at risk of any forced return to their country of origin (which had been confirmed at a bilateral meeting at the Slovak\/Ukraine border of persons with the relevant authority), and that Ukraine had ratified the Convention.","11.On the basis of the above decisions on their administrative expulsion, the applicants were expelled to Ukraine on the same day (17November 2014) at 10.30 p.m. They maintained that they had not been given copies of the decisions while they had still been on Slovak territory and that they had obtained copies only later by authorising their current legal representative to inspect their respective case files.","B.Developments after the applicants\u2019 expulsion to Ukraine","12.In Ukraine, the applicants were placed in the temporary detention centre in the town of Chop.","13.The file contains a copy of an email string between employees of an NGO in Ukraine who from 18 November 2014 onwards were allowed to talk to the applicants and lawyers from the Slovak branch of the Human Rights League, which resulted in the lodging of the appeals detailed. It appears from the email string that the applicants had been stating, since 18November 2014, that they had asked for asylum in Slovakia and did not understand why they had been removed from Slovakia (unlike the other twelve migrants who had been arrested with the applicants); they also expressed the view that the interpreter had provided an inaccurate translation.","14.On 25 November 2014, the first four applicants (Zabi Asady, FaridAhmad Ahmadi, Ali Ahmadi, Sher Badov Shinwari) instructed a lawyer and lodged an appeal against the administrative expulsion decisions against them, alleging a violation of their procedural rights and a violation of Article 13 of the Convention taken in conjunction with Article 3 and Article 4 of Protocol No. 4. They maintained that only one person from their group had been questioned by the police and that the others had merely been handed documents in Slovak for them to sign, having been told that they would be taken to a reception centre for asylum seekers; thus, the obstacles to their expulsion and the risk of their indirect refoulement to Afghanistan where they feared prosecution had not been examined. Furthermore, their requests for asylum had been ignored by the Slovak police, they had not had access to any legal aid, and they had been expelled without having been first served with the relevant decision and without having had an effective remedy at their disposal. In their view, the situation complained of had thus amounted to collective expulsion, which was prohibited by Article 4 of Protocol No. 4.","15.On 10and 25 December 2014, the applicants were transferred to another detention centre (in the municipality of Zhuravychi).","16.On 7January 2015, the Slovak border police directorate dismissed their appeals and confirmed the impugned decisions of 17 November 2014. Referring to the contents of the file, the border police directorate pointed out that interpretation into Persian had been provided throughout the entire proceedings on expulsion; moreover, the applicants had been duly informed of their rights, had signed the relevant documents and had expressly stated that they did not want to ask for asylum. Furthermore, individual decisions had been delivered in respect of all the applicants and there had been no obstacles to their expulsion to Ukraine.","C.The applicants\u2019 whereabouts and their contacts with their legal representative","17.According to their legal representative, some applicants returned to Afghanistan, where they live under unstable conditions due to the deteriorating security situation in the country, which does not always allow them access to means of communication. Others are asylum seekers in Europe, with only occasional access to the Internet or telephone. In the light of those specific circumstances, their legal representative has created a Facebook group with a view to staying in contact with the applicants.","18.In observations dated 10 May 2017, the applicants\u2019 legal representative provided the Court with the following information concerning the whereabouts of the applicants and her contacts with them:","-Mr Zabi Asady currently resides in Sweden and maintains indirect contact with the applicants\u2019 legal representative via another applicant, MrSher Badov Shinwari. The legal representative provided the Court with a link to his Facebook account. He is also a member of a Facebook group dedicated to the instant case.","-Mr Farid Ahmad Ahmadi currently resides in Vienna, Austria. The legal representative provided a link to his Facebook account.","-Mr Ali Ahmadi\u2019s place of residence is currently unknown.","-Mr Sher Badov Shinwari currently resides in Austria as an asylum seeker and maintains direct contact with the legal representative via Facebook. He provided a statement regarding his just satisfaction claim.","-Mr Abdul Hamid Nasri currently resides in Denmark as an asylum seeker and maintains contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim.","-Mr Mohammad Azam currently resides in Kabul, Afghanistan and maintains direct contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim.","-Mr Samiuddin Faizy currently resides in France as an asylum seeker and maintains contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim.","-Mr Mohammad Shakib currently resides in Odessa, Ukraine and maintains contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim.","-Mr Nasir Ahangarzada\u2019s place of residence is currently unknown.","-Mr Zabiullah Zazai currently resides in Mazar-e Sharif, Afghanistan, and maintains direct contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim.","-Mr Ali Ahmad Ali Zada\u2019s place of residence is currently unknown.","-Mr Abobaker Jamil currently resides in Afghanistan and maintains direct contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim.","-Mr Salman Faqiri and his brother Mr Sohrab Faqiri are no longer interested in pursuing the proceedings and wish to strike their applications out of the Court\u2019s list of cases.","-Mr Mohamad Farid Ekhlas\u2019s place of residence is currently unknown.","-Mr Edris Yusufi\u2019s place of residence is currently unknown.","-Mr Bezhan Rahimi currently resides in Germany. The legal representative provided a link to his Facebook account.","-Mr Miramza Sidiqi currently resides in Berlin, Germany. His legal representative provided a link to his Facebook account.","-Mr Rahim Rahimi currently resides in Zurich, Switzerland. He maintains indirect contact with the legal representative via a Facebook group dedicated to the instant case; the legal representative provided a link to his Facebook account."],"168":["A. Background","5.Ms S. Kukhalashvili (\u201cthe first applicant\u201d), Ms M. Gordadze (\u201cthe second applicant\u201d) and Ms R. Chitashvili (\u201cthe third applicant\u201d) were born in 1977, 1956 and 1938 respectively and live in Georgia.","6.The first and second applicants are the sister and mother, respectively, of Z.K., a detainee aged twenty-three who died during an armed operation carried out on 27 March 2006 (hereinafter \u201cthe anti-riot operation of 27March 2006\u201d) in Tbilisi Prison no. 5 (\u201cPrison no. 5\u201d) by a special anti\u2011riot squad of the Ministry of Justice (hereinafter \u201cthe anti-riot squad\u201d).","7.The third applicant is the mother of A.B., a twenty-nine-year-old detainee at Prison no. 5 who died during the same operation.","8.Prior to the anti-riot operation of 27 March 2006, Z.K. and A.B. had been detained in, respectively, cells nos. 81 and 76 of Prison no. 5.","9.Human Rights Watch (HRW), an organisation which conducted a fact-finding mission in Georgia in May 2006 for the purposes of documenting abuses against prisoners, reported the following on the origins of the riot of 27 March 2006 that took place in Prison no. 5 (see paragraph 110 below):","\u201cMuch controversy surrounds the exact nature of the disturbance in Tbilisi Prison no. 5. What is clear is that in the very early morning hours of March 27, government authorities arrived at the Republican Prison Hospital to transfer to Tbilisi Prison no.7six alleged crime bosses who, according to the government, were attempting to instigate riots in the prison system. People interviewed by Human Rights Watch and others state that these six individuals were beaten during this operation; the government denies that they were ill-treated. As the authorities removed these men from the prison hospital, other detainees began to make noise and burn sheets and other items. This disturbance quickly spread to the nearby Tbilisi Prison no. 1 and Prison no. 5, where many detainees made noise, set fire to linens, escaped from their cells, and barricaded the doors of the prison. Ministry of Justice and Ministry of Interior troops conducted a special operation to end the disturbance in Prison no. 5, resulting in at least seven deaths and numerous injuries.\u201d","B.Facts known to the first and second applicants prior to notice of their application being given to the Government","10.The first applicant, represented by her lawyer (the same person who represented the applicants in the present case, see paragraph 2 above, hereinafter \u201cthe lawyer\u201d), applied to the Prisons Department of the Ministry of Justice (\u201cthe Prisons Department\u201d) on 12 April 2006, asking for her brother\u2019s autopsy report and for information about any investigative measure taken in relation to the killing of Z.K. during the anti-riot operation of 27March 2006.","11.No reply was received, so the lawyer made the same application on 11May 2006. He also asked to be informed about the late Z.K.\u2019s status in the proceedings: whether he was a civil party or an accused.","12.On 15 May 2006 an investigator from the Prisons Department replied to the lawyer, saying that Z.K. did not yet have any status in the proceedings concerned and that the autopsy report could be consulted on the premises.","13.According to that report, dated 18 April 2006, there was a bullet wound on the right side of Z.K.\u2019s body, behind the armpit, and a bullet wound on the left hip. The first bullet had pierced the ribs and pleura before becoming lodged in the right lung. The second bullet had pierced the left hip from bottom to top, and entered the stomach and damaged the intestines and diaphragm before becoming lodged in and shattering the thorax bone. Severe haemorrhaging that had occurred after these injuries had caused his death.","14.On 11 July 2006 the lawyer contacted the General Public Prosecutor\u2019s Office (\u201cthe GPPO\u201d), challenging the investigator\u2019s reply of 15May 2006. Observing that nearly four months had elapsed since Z.K.\u2019s death, he requested access to the file and asked to be informed of progress in the investigation. Pointing out that, according to the autopsy report \u2013 the only document in his possession \u2013 Z.K.\u2019s death had been caused by firearm injuries, the lawyer requested that Z.K. be granted victim status on account of the armed operation of 27 March 2006.","15.In his reply of 29 July 2006, D.Z., a prosecutor from the GPPO in charge of supervising investigations by the Ministry of Justice, stated that civil-party status could not be granted to a deceased person. Even if a relative of the deceased could be granted such status, this could not happen in Z.K.\u2019s case, because the lethal force used against him had been used by representatives of the State \u201cin a moment of extreme urgency in order to quell the rioting by the prisoners and prevent them from committing crimes\u201d. As Z.K. had therefore not been injured as a result of an unlawful act, there were no grounds under Article 68 \u00a7 1 of the Code of Criminal Procedure (\u201cthe CCP\u201d) to grant his relatives civil-party status in the case.","16.On 14 August 2006 the lawyer wrote to the GPPO again, addressing the prosecutors who were hierarchically superior to D.Z., stating that it was important for the first and second applicants to know about the exact circumstances of their family member\u2019s death. The lawyer accordingly requested access to the file and permission to inspect the document concluding that lethal force had been used against Z.K. \u201cin a moment of extreme urgency in order to quell the rioting by the prisoners and prevent them from committing crimes\u201d.","17.On 17 August 2006 D.Z. refused the request, reiterating his reasoning of 29 July 2006 and adding that persons who were not party to the trial could not inspect material in the case file.","18.On 24 August 2006 the lawyer applied to Tbilisi City Court on behalf of the first and second applicants under Article 242 \u00a7 1 of the CCP, requesting that the reply from D.Z. of 17 August 2006 be declared unlawful, that civil-party status be granted to the first applicant, and that she be given permission to inspect the file. As he received no reply, the lawyer wrote to the Tbilisi City Court again, requesting that his application be examined immediately and in his presence, at a hearing.","19.Ruling in the absence of the parties on 10 October 2006, the Tbilisi City Court declared the application inadmissible on the grounds that, under Article 242 \u00a7 1 of the CCP, only a decision to terminate criminal proceedings or a preliminary investigation, or a refusal to order an expert report could be the subject of an appeal to the courts. That decision was final.","20.The lawyer appealed nonetheless. He pointed out that the prosecuting authorities\u2019 refusal and the court decision of 10 October 2006 amounted to a violation of Article 2 of the Convention.","21.On 19 October 2006 the Tbilisi City Court reiterated that no appeal lay against the decision of 10 October 2006.","22.On 1 November 2006, the lawyer applied personally to the General Public Prosecutor, pointing out that the first applicant was entitled to detailed information about the investigative measures implemented in the case and the evidence gathered that had led to the conclusion that the State had not violated its obligations under Article 2 of the Convention. He observed that, according to the news reported in a number of national newspapers, the force used against the inmates of Prison no. 5 had been excessive.","23.D.Z. replied on 7 November 2006, repeating the same arguments as those set out in his letter of 29 July 2006 (see paragraph 15 above).","C.Facts known to the third applicant prior to notice of her application being given to the Government","24.According to a death certificate issued on 30 March 2006 by the relevant office of the Health Ministry, the third applicant\u2019s son died on 27March 2006 \u201cduring the unrest in Tbilisi Prison no. 5\u201d for \u201creasons unknown\u201d. According to that certificate, numerous bullet wounds had damaged his internal organs and brain.","25.On 16 February 2007 the third applicant wrote to the Tbilisi city prosecutor\u2019s office saying that, in her view, the use of lethal force against her son had been excessive and unlawful, given the many injuries found on his body. She sought leave to take part in the proceedings and also asked for the documents pertaining to the investigation to be sent to her. The third applicant specified that the interests of her deceased son could not be properly defended without her participation.","26.As she received no reply, the third applicant reiterated her request on 20March 2007 before the GPPO, the body which was hierarchically superior to the city prosecutor\u2019s office.","27.When she still received no reply, the third applicant applied to the Tbilisi City Court on 3 April 2007. Reiterating her arguments of 16February and 20 March 2007, she complained of the lack of a response from the GPPO, a lack of response that she said that she was challenging under Article 242 \u00a7 1 of the CCP. Relying on Article 2 of the Convention, she sought an order that the GPPO grant her leave to take part in the proceedings and send her the documents in the investigation file.","28.In a letter of 5 April 2007, the Tbilisi City Court replied to the third applicant saying that, in accordance with Article 242 of the CCP, only an order by the public prosecutor\u2019s office to terminate criminal proceedings or a preliminary investigation, or a refusal by an investigator to order an expert report could be the subject of an appeal to the courts. It also reiterated that it did not have power to order the GPPO to grant civil-party status to anyone.","29.On 1 May 2007 the third applicant applied to the GPPO again, repeating her request of 16 February 2007.","30.On 15 May 2007 D.Z. (see paragraph 15 above) replied that the third applicant could not claim to have civil-party status in the case because none of the grounds under Article 68 \u00a7 1 of the CCP applied. Indeed, \u201cthe investigation had established\u201d that lethal force had been used against her son \u201cin a moment of extreme urgency\u201d in order to quell the riot and to prevent inmates from committing crimes.","31.On 22 May 2007 the third applicant asked the GPPO if she could have access to the documents in the file for the investigation which, according to the letter of 15 May 2007, the authorities had carried out before concluding that the use of lethal force had been necessary. She repeated her request for civil-party status in the case.","32.On 19 June 2007 D.Z.\u2019s hierarchical superior replied in identical terms to those stated in the letter of 15 May 2007.","33.On 22 May 2007 the third applicant applied to the Tbilisi City Court, challenging the decision contained in D.Z.\u2019s letter of 15 May 2007 under Article 242 of the CCP.","34.On 28 May 2007 she received the same reply from the City Court as that of 5 April 2007.","D.Facts and evidence adduced by the Government after notice of the applications being given to them","1.Criminal investigation no. 073060138 launched against the organisers of the prison riot","(a)Investigation by the Ministry of Justice","35.On 25 March 2006 the Prisons Department received an \u201coperational briefing\u201d that riots were being prepared in various prisons in the country in an effort to reinstate the authority of criminal bosses. M.Z., P.M. and N.M.\u2013 three criminal bosses or \u201cthieves in law\u201d (see Ashlarba v.Georgia,no.45554\/08, \u00a7\u00a7 21-24, 15 July 2014) being held in Tbilisi prison hospital \u2013 were the organisers of the riots, and they had instructed Z.V., G.A. and L.Ts. \u2013 three makurebelis, influential prisoners overseeing the activities of other inmates (see Tsintsabadze v. Georgia, no.35403\/06, \u00a743, 15February 2011), who were being held in the same hospital \u2013 to incite all their fellow inmates to deliberately injure themselves so that the prison authority would lose control of the situation. Notably, as there had been a crackdown on the criminal underworld after the \u201cRose Revolution\u201d (see paragraph 140 below), the three criminal bosses in question hoped that the head of the Prisons Department, B.A., would be held responsible for failing to control the situation in the prisons and dismissed from his post, whereupon the reforms which were under way would be stopped.","36.After the Prisons Department received the briefing, criminal proceedings were instituted on 25 March 2006 by the Investigations Department of the Ministry of Justice in respect of charges of attempting to disrupt order in prison. On the same day audio and video-recordings were secretly made in the prison hospital (see paragraphs 61 and 86 below). An order was given for security measures to be reinforced in relation to the six above-mentioned detainees \u2013 the three criminal bosses and the three makurebelis \u2013 being transferred to Tbilisi Prison no. 7 and held in solitary confinement. The transfer was to take place at night \u201cin order to avoid complications\u201d.","37.Accordingly, during the night of 27 March 2006 B.A, the head of the Prisons Department, and his colleagues went to the prison hospital. Thetransfer operation began at 12.45 a.m. Once out of the hospital, the above-mentioned six detainees refused to comply, physically resisting the prison officers and succeeding in inciting the other inmates to rebel in support. The transfer was carried out nonetheless, but the prisoners who remained at the prison hospital continued to riot. They started shouting, setting fire to various objects, forcing windows open, and so on. Upon hearing the noise, the inmates in the adjoining prisons, Prisons nos. 1 and 5, began to riot in turn.","38.The rioting was particularly bad in Prison no. 5, and required intervention by the anti-riot squad in order for the situation to be broughtunder control. During that armed operation seven inmates died, and twenty-two inmates and two prison officers were injured.","(b)Initial investigative measures implemented by the Ministry of Justice (inspection of the scene of the rioting in Prison no. 5)","39.Between 6.10 and 9.05 a.m. on 27 March 2006 a group of five investigators from the Ministry of Justice carried out an inspection of the scene of the rioting in Prison no. 5. According to the relevant investigation report, the group came out onto the first floor of the prison through a metal door on which the lock had been neither damaged nor forced. They made the following findings in respect of the upper floors.","(i)Second floor \u2013 dormitory no. 3","40.The investigators entered the first corridor of dormitory no.3through a metal door that was in working order. In the corridor, they saw iron beds and pieces of wire meshing on the floor. The four cells in the corridor had no doors and they saw prisoners inside them being guarded by armed and hooded officers. The investigators seized two rubber bullet cases (38 mm calibre) found in the corridor.","41.In the second corridor of dormitory no. 3, dismantled metal beds and doors lay on the floor. Only two out of eleven cells had doors on them, and these were closed. In the cells without doors, the investigators saw prisoners being guarded by armed and hooded officers. The investigators seized six rubber bullet cases (38 mm calibre) found in this corridor. At the end of the corridor a metal door opened out onto the staircase to dormitories nos. 2 and4. The ground was covered with bits of paper and fragments of metal objects, and four metal doors and an iron bed lay on the ground. According to the report, it was \u201cclear that the prisoners [had] attempted to barricade access to dormitory no. 3 with those objects\u201d.","42.Of the four cells in the third corridor of dormitory no. 3, two had doors and these were closed. In the cells without doors, the investigators could see prisoners being guarded by armed and hooded officers. In this corridor, rubber bullet cases lay \u201cscattered\u201d on the ground. There were also metal objects on the ground and a dismantled iron bed.","(ii)Third floor \u2013 dormitory no. 4","43.The above-mentioned staircase (see paragraph 41 in fine above) led to the third floor. The metal door to dormitory no. 4 was in place, but did not fully open because of barricades that had been put up behind it. The lock was in working order and did not appear to have been forced. The four cells in the first corridor had no doors. The prisoners there were being guarded by armed and hooded officers. In the corridor, two dismantled iron beds were visible, in addition to mattresses and duvets. The investigators found a pistol (serial number BA7812) with a magazine and four bullets lying in front of cell no. 74a. In front of cell no. 87a, they also found a Magnum pistol (serial number 77311) with a magazine and a bullet, as well as a Valtro Combat pistol with a magazine and two bullets. The investigators also seized bullet cases from automatic weapons, three bullet cases from pistols and fragments of various metal objects.","44.The eleven cells in the second corridor of dormitory no. 4 were missing doors. The prisoners in those cells were being guarded by armed and hooded officers. Two iron beds and various objects lay on the floor in that corridor. An Adler and a Makarov pistol with a magazine and three bullets were found in front of cell no. 71. A Valtro-2000 pistol and a magazine and three bullets were found in front of cell no. 76. The investigators seized four bullet cases (9 mm calibre), thirty-seven bullet cases from automatic weapons and fragments of various metal objects","45.Four cells in the third corridor of dormitory no. 4 were missing doors. The inmates in the cells were being guarded by armed and hooded officers. An iron bed and fragments of metal objects were lying on the floor in the corridor. The investigators seized six bullet cases from automatic weapons (9 mm calibre).","46.At the end of the second corridor of dormitory no. 4, a metal door, which was still in place, opened onto staircases leading to dormitories nos. 3and 5. Objects of all kinds could be seen in the staircase, including two metal doors and two iron beds. The investigators seized a bullet case (9 mm calibre).","(iii)Fourth floor \u2013 dormitory no. 5","47.The metal door to the first corridor of dormitory no. 5 was in place. Of the four cells in the corridor, one had no door. Inmates in this cell could be seen being guarded by armed and hooded guards. The three other cells were closed. Two dismantled iron beds could be seen in the corridor.","48.In the second corridor of dormitory no. 5, two out of eleven cells were missing doors. Two dismantled metal beds and various objects could be seen on the floor in the corridor. Rubber bullet cases (38 mm calibre) lay scattered on the floor, and the investigators seized seven of these.","49.In the third corridor of dormitory no. 5, one cell had no door. The three other cells were closed.","(c)Further investigative measures implemented by the Ministry of Justice","50.Between 9.30 and 11.15 a.m. on 27 March 2006 two inspectors from the Ministry of Justice inspected the scene of the rioting in Prison no. 1. The damage observed in the corridors of the prison appeared to be less serious than that described above. However, the relevant report indicates that the prison warden\u2019s office in dormitory no. 4, the watchtower of the top floor exercise yard and the upstairs loft had been burnt.","51.A forensic examination of the body of A.B., the third applicant\u2019s son, was carried out on 27 March 2006. According to the expert who carried out the examination, the body had: four injuries to the left thigh, one of which was a long thin wound and still bloody, and another of which revealed fragments of broken bone; two injuries to a toe on the right foot and a fracture in the same place; two injuries and a fracture to the left elbow; and an injury to the right side of the back. The back injury extended to the pleura and the spine, and entered the skull via the neck. The skull was fractured. A piece of yellow metal was removed from the skull and \u201csent to the investigating authorities\u201d. There were numerous red lesions on the lower back, the nose, the forehead, around the left eye and on the left hand, and the right nostril was torn. The internal organs were examined. It was established that various types of alcohol were present in the blood. The expert concluded that death had occurred between six and eight hours before the autopsy, and had been caused by numerous firearm injuries. The bullets had damaged the internal organs and the spine and had caused broken bones. With regard to the many red lesions observed on the body, the expert concluded that they had been sustained when A.B. had still been alive and had been caused by a blunt object or blunt objects.","52.Two prison officers were injured during the anti-riot operation of 27March 2006 \u2013 K.M. and M.S., heads of two dormitories, who participated in the operation. According to medical reports of 30 March 2006, K.M. presented a non-perforating wound to the left forearm, caused by a firearm, whilst M.S. had a perforating wound to the thigh, also caused by a firearm. The injury sustained by M.S. was classified as a minor injury resulting in him being unfit to work for a short period of time.","53.In the course of the investigation in the case, evidence from various prison officers was heard, and the officers made the following statements.","(i)Statements of K.M. and M.S., two injured prison officers","54.K.M. (see paragraph 52 above) was questioned on 5 April 2006 and his version of events was as follows. He was on duty in Prison no. 5 during the night of 26-27 March 2006 and after 1 a.m. a colleague informed him that a disturbance had started at the prison hospital. He immediately informed the deputy director of the Prisons Department, who left for the hospital. K.M. himself went to Prison no. 5 to reinforce the outside security arrangements and prepare for a possible attempted breakout. Shortly afterwards the disturbance spread to Prison no. 5. Amongst the shouting and noise, the prisoners were throwing burning mattresses, sheets and clothes out of the windows. Prison officers and police officers arrived. A while later the directors of the Prisons Department also arrived. K.M. went up onto watchtower no. 1, from where one could see into Prison no. 5, and observed that the inmates were moving freely about the building and even trying to get out. The roof of Prison no. 1 caught fire. The police drove a car equipped with a loudspeaker into the yard of Prison no. 5 to address the inmates. Each appeal for calm was greeted by louder noise from the inmates. The Prisons Department then urgently summoned all off-duty officers. Security was reinforced on every watchtower around the prison. At the same time firefighters and the anti-riot squad of the Ministry of Justice arrived. The anti-riot forces were deployed at a distance of 30-40 metres from the building, as burning objects and metal objects were falling from the windows. During that time the President of the Parliamentary Human Rights Committee spoke to the inmates through a loudspeaker, appealing for calm.","55.At one point the governor of Prison no. 5 came to tell K.M. that he was going to go into the prison to talk to the inmates. K.M. and M.S. (see paragraph 52 above) decided to go with him. They could not gain access to the dormitories through the main entrance, as the door was blocked from the inside. They therefore used a back door. When they got to the first floor the officers of the anti-riot squad were already there. It was relatively calm on the first and second floors, but loud noise could be heard coming from the third floor (dormitory no. 4), to which they had no access as the door had been barricaded from the inside. They therefore went up to the fourth floor before going back down to the third floor and using another door to get to dormitory no. 4. The prison governor, who was first in line, was followed by K.M., M.S. and several other prison officers, who were themselves followed by anti-riot officers. Unlike the anti-riot officers, the prison officers were not armed and were not carrying truncheons or wearing hoods. K.M. and the governor were wearing black uniforms, and M.S. was in civilian clothes. The group entered the corridor, with the governor appealing to the inmates for calm and explaining that the old prison building might collapse and kill thousands of people. When the group turned right in the corridor, they were confronted with barricades. The prison officers attempted to dismantle them, but the inmates started throwing pieces of brick and iron in their direction. The anti-riot officers then fired rubber bullets. In response, five or six shots rang out very close by. M.S. fell down. Other shots rang out and K.M. felt his arm go warm. He did not realise that he had been injured until he was out in the prison yard. When M.S. and K.M. were injured, the anti-riot squad passed in front of them, shouting that some of their men had been injured, and opened fire with their automatic weapons.","56.When giving evidence on 11 April 2006, M.S. said that as the appeals for calm issued in the prison yard had been unsuccessful, a decision had been taken to \u201ctake the prison by storm\u201d. Apart from that, he related the same facts as K.M. Unlike G.P. (see the following paragraphs), M.S. stated that he had not seen in which direction the anti-riot officers had fired their automatic weapons.","(ii)Statements of the governor of Prison no. 5","57.G.P., the governor of Prison no. 5, gave evidence on 7 April 2006. According to him, at approximately 2.15 a.m. on 27 March 2006 inmates at his prison started a disturbance, following the unrest in the prison hospital. Considering that the disturbance could spread throughout the prison, he telephoned B.A, the head of the Prisons Department, to tell him that he did not have the means to bring the situation under control alone and was therefore declaring a state of emergency in the prison and requesting assistance. While waiting for help, G.P. decided to allow the guards of all the dormitories to leave their post, close the doors of their dormitories and the entrances to the building, and distribute weapons to their officers. The security around the prison was reinforced to bar any escape attempt. In the meantime, the inmates had succeeded in getting out of their cells and were freely circulating in the corridors of the dormitories. Burning objects and pieces of brick and iron were falling from the windows. The anti-riot squad, B.A., firefighters and the police arrived. At about 2.45 a.m. the decision was taken to take the prison by storm. G.P. then suggested to his deputies and other colleagues that they should get ahead of the anti-riot squad in order to avoid the members of the squad having direct contact with the inmates. He hoped that once they saw familiar faces, the inmates would become more compliant. The prison officers opened the main door and entered the building, accompanied by the anti-riot officers. The lower floors of the prison were empty. The entrance to the third floor (dormitory no. 4) was barricaded. The prison officers started to take down the barricades. While doing so, G.P. appealed to the inmates on the other side of the barricades for calm. In reply, the inmates swore at them, throwing pieces of brick and iron, whereupon the anti-riot officers fired rubber bullets at them. In response, four or five shots rang out on the inmates\u2019 side and M.S. fell down. K.M. was also injured. G.P. and a member of the anti-riot squad took M.S. out of the corridor. At that moment the anti-riot squad, who were positioned in the stairway, moved into the corridor and opened fire using their automatic weapons. According to G.P., the officers aimed at the ceiling and the walls. The inmates scattered and returned to their cells.","(iii)Statements of the dormitory guards of Prison no. 5","58.When questioned on 8 April 2006, R.O., the guard of dormitoryno.3, gave the same description of the general situation as the other above-mentioned prison officers. He stated that he had been told by his colleagues from dormitories nos. 4 and 5 that five inmates, including A.B. (the third applicant\u2019s son), had been behaving particularly aggressively and had been seen destroying the cells.","59.When giving evidence on 8 April 2006, Z.D., the guard of dormitory no. 4, stated that on 27 March 2006 the nineteen cells of the dormitory had housed 900 inmates. He explained that guards such as himself were never armed and, moreover, did not have the keys to the dormitories where they were shut in with the inmates. The doors to the dormitories were locked from the outside after each round. That was why when the riot had broken out in dormitory no. 4, which housed the \u201ctoughest\u201d inmates, his life had been in danger. Z.D. said that when he had gone on duty at 8 p.m. on 26March 2006 he had checked all the locks on the cell doors. At about 1.30 a.m. he had heard noises coming from the prison hospital. The inmates had been shouting \u201cthey\u2019re duffing up the [criminal] bosses!\u201d and urging all the prisoners to riot. A few seconds later the inmates of dormitory no. 4 had started banging on their cell doors. Z.D. had had the impression that they were using iron beds or tables to force open their cell doors which opened onto the corridor. In about five minutes the guard from dormitory no. 2 had come to open the door to let Z.D. out. They had closed the door behind him from the outside. Z.D. explained that all the cell doors were made of wood reinforced with metal sheets. The door frames were also made of wood. These old doors could only be locked with padlocks, and it was not difficult to break them down. Z.D. stated that in dormitory no. 4 two inmates from cell no. 76, A.B. (the second applicant\u2019s son) and G.Dj., and an inmate from cell no. 78, K.Q., had been the first to start rioting following the rioting that had started in the prison hospital. They had been the first to break the window bars in their cell doors before putting their heads out and urging the prisoners to riot.","(d)Charges against the organisers of the prison riot and the transfer of the case to the prosecuting authority","60.The investigative measures detailed above gave rise to charges being filed against M.Z., P.M. and N.M., the three criminal bosses or \u201cthieves in law\u201d, and against Z.V., G.A. and L.Ts., the three makurebelis who were subordinate to the bosses (hereinafter \u201cthe six riot organisers\u201d, see paragraph36 above). Those charges were filed on 13 April 2006.","61.According to an expert report issued on 4 May 2006, a secret video\u2011recording of a meeting between several organisers of the riot lasted about twenty-five minutes and showed no signs of having been edited (see paragraph 36 above). According to a transcript of the intelligible parts of the conversation, the organisers agreed that they would lie by saying that during an inspection the prison officers had started beating them. They would then ring the emergency number for prisoners\u2019 rights and various NGOs and journalists, so that the following day there would be twenty-four-hour reports on a television channel renowned for its criticism of the authorities. This would, they said, allow them to \u201cget on their feet again\u201d. It was not possible to decipher the rest of the conversation because of substantial background noise.","62.By a decision of 19 May 2006 the GPPO decided to relieve the investigators of the Ministry of Justice of the criminal case. The decision does not state the reasons for the transfer of the case. However, the following information is mentioned. After hearing the appeals for calm by the prison officers who preceded the anti-riot squad in the corridor, the prisoners \u201ccame towards [the prison officers and the anti-riot squad]\u201d, \u201cwhich obliged the anti-riot forces to fire rubber bullets\u201d. The inmates responded to those shots with \u201ca number of\u201d shots, injuring two prison officers. \u201cThe decision was then immediately taken to open fire in response. Following a mutual exchange of shots, seven inmates died and twenty-two were injured.\u201d After that, \u201cthe situation returned to normal and the inmates returned to their cells and stopped resisting the officers.\u201d This also had a positive effect on the inmates of Prison no. 1, who calmed down without any recourse to force being necessary.","63.According to a ballistics report of 25 May 2006, two of the six pistols seized on 27 March 2006 (see paragraphs 39-49 above) with magazines and seven bullets were Makarov pistols (9 mm calibre); one had no serial number and the other was numbered BA7812. The weapons had been used since they had last been cleaned. The seven bullets were projectiles for Makarov or Stechkin-APS pistols. Eight 9 mm cases corresponded to the Makarov and Stechkin-APS bullets; four of these had been fired by the Makarov with no serial number, two others by the Makarov BA7812, and the two last ones by an unidentified Makarov. The four other pistols seized were special defence weapons (9 mm calibre) for blank cartridges, rubber bullets, or gas or lead bullets. These weapons were in working order and had been used since they had last been cleaned, since traces of powder had been found in the barrels. Three bullets (9 mm calibre) found with one of the weapons were usable in one of the weapons; two of them were rubber bullets and the third an irritant (CS gas).","64.By a decision of 21 June 2006 an investigator from the GPPO noted that part of the case \u2013 the part relating to the six riot organisers \u2013 was ready and should be set down for trial. However, in his view, it was necessary to verify whether the order to open fire on the inmates had been lawful. He therefore decided to sever the aspects relating to a possible abuse of power by the prison and law-enforcement officers from the criminal case relating to the six organisers of the riot, and to open a new case in order to investigate that possible charge (see paragraphs 76-84 below). According to the statement of facts given in that decision, on 27 March 2006 there was a risk of a breakout by the inmates of Prison no. 5 and a danger to the prisoners\u2019 lives on account of the fire that had been started. While the prison officers forming a barrier between the anti-riot squad and the inmates were appealing for calm, the prisoners \u201cwere throwing pieces of brick and iron at them\u201d, \u201cwhich was why the anti-riot squad fired rubber bullets at the inmates\u201d. The inmates responded by firing \u201cMakarov and gas pistols\u201d, slightly injuring two prison officers. Despite \u201csubsequent attempts by the prison officers and the anti-riot officers to quell the violence\u201d, the prisoners continued \u201cfiring their two Makarov [pistols] and four [other] pistols\u201d, which \u201cobliged the anti-riot forces to open fire\u201d. This meant that the situation could be brought under control.","65.By a decision of 23 October 2006 the GPPO decided to sever the case relating to the deaths of Z.K. and A.B. from the case concerning possible abuse of power by the law-enforcement officers (see paragraph 64 above and paragraphs 76-84 below), in order to determine the causes and circumstances of their death (see also paragraph 85 below). In that new case, criminal proceedings for murder were instituted (an offence prosecuted under Article 108 of the Criminal Code).","66.In the meantime, the six riot organisers had been committed for trial.","67.On 22 January 2007 B.A., the head of the Prisons Department, was questioned by the GPPO within the framework of the criminal case directed against the six riot organisers. The record of the interview states that at approximately 1 a.m. on 27 March 2006 B.A. went to the prison hospital after learning that a riot was being fomented (see paragraph 57 above). At 1a.m. he reported to the Minister of Justice that the six riot organisers had physically resisted prison officers while being transferred, that they had urged the other inmates to rebel, and that the situation had degenerated. He described the conduct of the inmates who had started rioting, informed the minister that they had started a fire, and suggested that there was a risk of a breakout. On the basis of that information, a state of emergency \u201cwas declared\u201d by the Ministry of Justice, in accordance with a ministerial order of 12 February 2001 (\u201corder no. 60\u201d), and a crisis unit composed of the Minister of Justice, two Deputy Ministers of Justice and B.A. himself was \u201cset up\u201d. The Minister of Justice went to Prison no. 5 to examine the situation and hear B.A.\u2019s explanation. According to B.A., when appeals for calm issued by the Ombudsman, the President of the Human Rights Parliamentary Committee, police officers and prison officers were unsuccessful, and when the fire that had been started in \u201cPrison no.5took hold\u201d, the lives of 4,000 prison inmates were in danger, and the risk of a massive prison breakout became real. A decision was then taken to intervene.","68.With regard to the conduct of the inmates of Prison no. 5 and the order in which shots were heard on both sides, B.A. related the same facts as K.M. and M.S. (see paragraphs 54-56 above). According to B.A., once K.M. and M.S. were injured, the situation \u201cspiralled out of control\u201d. In his view, the likelihood of a massive breakout and the death of inmates in the fire increased. The crisis unit then decided to order the anti-riot squad to \u201ctake all necessary measures in accordance with the law to reinstate order, and if necessary use firearms within the statutory limits in force\u201d. Following the measures taken, and \u201cwith the use of firearms\u201d, according to B.A., \u201cthe mass disorder and insurrection by the prisoners were quelled\u201d by about 4a.m. The damage suffered by the Prisons Department amounted to 50,737 Georgian laris (GEL \u2013 approximately 16,500 euros (EUR)). In answer to the only question asked by the investigator, B.A. replied that in similar situations the crisis unit acted in accordance with the rules on detention and weapons, order no. 60, the joint action plan of January 2003, and the rules governing anti-riot forces (see paragraphs 96-107 below).","(e)Trial stage of the case brought against the six riot organisers","69.Between February and March 2007 the Tbilisi City Court held several trial hearings in the case brought against the six riot organisers. The following witnesses were heard by the trial court.","70.B.A, the head of the Prisons Department, when giving evidence in court, said that once he had been informed by the hospital authorities that the six riot organisers had been taken away and were waiting in the corridor for their transfer to Tbilisi Prison no. 7, he had ordered them to be put in a van parked in the hospital yard for that purpose. He claimed that none of them had been taken to the hospital director\u2019s office (compare paragraphs71-73 below). A few minutes later B.A. had been informed that the inmates in question were refusing to be transferred. At the same time, rioting could be heard. He had then summoned the anti-riot officers, who had formed a corridor along which the six inmates had passed before being transferred. With regard to the remaining events, he related the same facts as those recounted on 22 January 2007 (see paragraph 67-68 above).","71.Z.V. and G.A., two of the six riot organisers (see paragraph 35 above), claimed before the court that on the night of 27 March 2006 they had been woken by a guard who had summoned them to the hospital director\u2019s office for a meeting with B.A. In that office they had met B.A., who had been accompanied by the prison governor of Prison no. 7, a number of people wearing hoods, P.M. (another co-accused), and several prison officers, one of whom had been filming the meeting. B.A. had questioned Z.V. and G.A. \u201cabout the date [of the meeting between the organisers of the riot]\u201d. The two inmates had replied that \u201cthey could not remember\u201d. B.A. had then struck G.A., who had hit him back. The people wearing hoods had then started kicking and punching Z.V. and G.A. and beating them with their truncheons and the barrel of their guns. The two inmates had been unconscious when they had been transferred to Prison no. 7, where they had been beaten again.","72.L.Ts., another of the six riot organisers, stated that, having been woken by a guard, he had been summoned to the hospital director\u2019s office. He had seen a lot of people in the corridor and anti-riot officers, who had started beating him with their truncheons. At the same time Z.V. and G.A. were being beaten in the hospital director\u2019s office (see the preceding paragraph). After being transferred to Prison no. 7 at the same time as the other two inmates, L.Ts. had been stripped naked and again kicked, punched and beaten with a truncheon. According to L.Ts., he and Z.V. had had marks on their body as a result of the violence, and G.A. had had such marks on his face.","73.The director of the prison hospital stated before the court that with the aid of informers among the inmates, he had learnt that a riot was being prepared. He had informed B.A. accordingly, who on 27 March 2006 at about 1 a.m. had come to the hospital and ordered the director to bring the six riot organisers to the director\u2019s office, with a view to transferring them. When the trouble had started, B.A. had summoned thirty members of the anti-riot squad to assist with the transfer. The anti-riot officers had not stayed at the hospital because the situation there had quickly returned to normal. They and B.A. had gone to Prisons nos. 1 and 5, which had also started to have problems.","74.By a judgment of 2 April 2007 the Tbilisi City Court convicted M.Z., Z.V., G.A. and L.Ts. of refusing to obey the lawful orders of prison officers, disrupting order in prison, and assaulting prison officers or creating a group for that purpose and actively participating in that group (Article 378 \u00a7\u00a71 and 3 of the Criminal Code). They were sentenced tosixyears\u2019 imprisonment each. N.M. was sentenced to seven years\u2019 imprisonment for the same offences and for illegal possession of a mobile telephone (an offence committed in June 2006). P.M. was sentenced to twelve years\u2019 imprisonment for the same offences as those committed by the first four inmates and for being a criminal boss (Article 2231 \u00a7 1 of the Criminal Code).","75.In its statement of the facts, the Tbilisi City Court considered that the following facts had been established. As witnessed by the prison officers followed by the anti-riot squad, the inmates of dormitory no. 4 had started throwing pieces of brick and iron in their direction. For that reason, the anti\u2011riot squad had fired rubber bullets back at them. In response, the inmates had opened fire using Makarov pistols and gas weapons. They had carried on resisting until they had been brought under control by the measures implemented by the prison officers and the anti-riot forces.","2.Criminal proceedings brought against the prison officers for abuse of power (case no. 74068237)","76.This case against the prison officers was instituted on 21 June 2006 (see paragraph 64 above), and the following investigative measures were carried out.","77.When questioned on 9 October 2006, the expert who had produced the autopsy report of 27 March 2006 (see paragraph 51 above) stated that the tear in A.B.\u2019s right nostril and the many red lesions on his body had been sustained when he had been alive, and could have been caused by rubber bullets. The expert further stated, for comparison purposes, that there had been no such lesions on the body of G.Y., an inmate who had also died, and only firearm injuries could be observed on his body.","78.On 10 October 2006 the expert who had examined the bodies of three other inmates who had died stated that, apart from firearm injuries, the inmates had sustained lesions and bruises that had left red marks on various parts of their bodies while they had still been alive, and very shortly before their death. The lesions could have been caused by rubber bullets.","79.Between 24 and 26 October 2006 four inmates of Prison no. 5 were questioned in the absence of a lawyer. According to the relevant records, three of those inmates claimed that they did not require legal assistance. None of them had been injured during the events in question. A brief summary of their statements is reproduced below.","80.G.S., an inmate in cell no. 56, stated that at about 2 a.m. on 27March 2006 he had heard inmates screaming and swearing, and that when he had looked out of the window he had seen burning objects falling into the prison yard. Shortly afterwards the lock on his door had been broken and he and his cellmates had gone out into the corridor. On account of the smoke, they had all gone up to the second floor. Shortly afterwards the anti-riot forces had arrived, but they had been kept back by the barricades. A shot had rung out on the inmates\u2019 side. In response, the anti\u2011riot officers had fired rubber bullets and G.S. had hidden in a cell. The anti-riot forces had dismantled the barricades and the situation had returned to normal.","81.R.Ch., an inmate in cell no. 70a, gave a similar description. He explained that the anti-riot forces had \u201chad no means of targeting\u201d the inmates individually, and the sound of shots ricocheting off surfaces could be heard. An inmate next to him had sustained minor injuries as a result of a stray bullet.","82.B.Sh., an inmate in cell no. 71, gave a similar description, saying that inmates from all floors had gathered together in their dormitory (no. 4). He had seen pistols in the hands of two inmates, but could not identify the persons in question. Later the anti-riot forces had arrived, but as they had had \u201cno means of targeting inmates\u201d they had been randomly firing rubber bullets.","83.G.T., an inmate in cell no. 104 (dormitory no. 5), gave a similar description, adding that at about 1.10 a.m. on 27 March 2006 he had heard the prison hospital inmates shouting out that the criminal bosses were being attacked and inciting other inmates to riot. After his cell door had been opened from outside, he had gone down to the third and fourth dormitories. The inmates from the fourth dormitory had been barricading the entrances with the cell doors. A group of prison officers had then arrived. A shot had rung out and someone had shouted that a prison officer had been injured. Further shots had followed and he had no longer known who was firing at whom or from where.","84.According to the case file as it stands at hand, the investigation into the possible abuse of power by the law-enforcement officers has not been terminated to date. It does not transpire from the available materials whether, apart from the measures mentioned above (see paragraphs 77-83), any other investigative steps have been made.","3.Criminal proceedings concerning the murder of Z.K. and A.B. (case nos. 74068394 and 74068398)","85.There is no information in the file on the investigative measures, if any, taken to date in the criminal proceedings initiated on 23 October 2006 (see paragraph 65 above).","4.Content of the video-recording produced by the Government","86.The Government have submitted a video-recording. The first sequence would appear to correspond to the secret recording of the meeting between the organisers of the riot. The content of the surtitles of their conversation is the same as that set out in paragraph 61above.","87.The second sequence shows a police car parked in a place that is not a prison yard, but could be an entrance to the perimeter of the prison area. A police officer in the car is holding a loudspeaker and saying \u201cStop the riot! Prisoners, stop rioting! I repeat, stop rioting!\u201d","88.The third sequence shows a prison yard in which several dozen people are running, wearing hoods. The building has a ground floor and three upper floors. Burning objects fall from the windows and shouting and disturbances can be heard coming from the cells. Several windows on the second floor are lit up on the inside by flames.","89.The fourth sequence shows the firemen extinguishing the fire on the roof of the same building.","90.The fifth sequence shows two people in camouflage and a man in a black jacket coming down the staircase of a building wearing a hood. They say that an ambulance should be called.","91.The sixth sequence shows doctors treating the thigh of a man dressed in civilian clothes (see paragraphs 55 and 56 above) and the left forearm of a man in a black pullover.","92.The seventh sequence shows a number of people in camouflage attempting to clear a barricaded entrance.","A.Human Rights Watch","110.In September 2006 Human Rights Watch published a comprehensive report on the human rights situation in Georgian prisons entitled \u201cUndue Punishment. Abuses against Prisoners in Georgia\u201d (Vol. 18, No.8 (D)). The relevant excerpts from that report, which specifically addressed the anti-riot operation of 27 March 2006, read as follows:","\u201cThe March 27 Disturbance in Prison No. 5","Much controversy surrounds the exact nature of the disturbance in Tbilisi Prison No.5. What is clear is that in the very early morning hours of March 27, government authorities arrived at the Republican Prison Hospital to transfer to Tbilisi Prison No.7six alleged crime bosses who, according to the government, were attempting to instigate riots in the prison system. People interviewed by Human Rights Watch and others state that these six individuals were beaten during this operation; the government denies that they were ill-treated. As the authorities removed these men from the prison hospital, other detainees began to make noise and burn sheets and other items. This disturbance quickly spread to the nearby Tbilisi Prison No. 1 and Prison No. 5, where many detainees made noise, set fire to linens, escaped from their cells, and barricaded the doors of the prison. Ministry of Justice and Ministry of Interior troops conducted a special operation to end the disturbance in Prison No. 5, resulting in at least seven deaths and numerous injuries. According to the Ministry of Justice, at least ten government agents also sustained injuries. The disturbance in Tbilisi Prison No. 1 subsided without an armed intervention.","In explaining the origins of the disturbance in Tbilisi Prison No. 5, the government maintains that one inmate, M[.]Z[.], an alleged thief in law, had plotted with others to create a disturbance in the prison system intended to stop the ongoing prison reforms, which, as noted above, were aimed at dismantling the thieves in laws\u2019 authority within the prisons. The government claims that [M.]Z[.], together with two other suspected criminal authorities, recruited three other crime figures to carry out a plan to inflict injuries on themselves and other collaborators that they would claim had been inflicted by the head of the Penitentiary Department in order to provoke disturbances in the penitentiary system. The government says that it obtained information about this plot on March 25 and set up secret audio and video recording in the Republican Prison Hospital, where all six of the alleged plotters were being detained.","On March 26, the head of the prison hospital informed authorities of the Penitentiary Department that the six plotters \u2018were organizing mass disturbances\u2019 and asked that Penitentiary Department officials take necessary measures. The head of the Penitentiary Department and officers from the criminal investigation department then arrived at the prison hospital to transfer the alleged plotters to other penitentiary facilities. According to the government, \u2018In order to prevent further complication of the situation it was decided to carry out the operation at night,\u2019 at 12:45 a.m. on March 27.","Detention of the alleged riot plotters and disturbance in the Republican Prison Hospital","The government claims that the six alleged plotters physically resisted the attempt by Penitentiary Department officials to relocate them and that during their transfer they called out to other detainees in the hospital to \u2018start mass disturbances.\u2019 As a result, other detainees in the prison hospital \u2018started disobedience and mass disturbance, namely making noise, swearing, shouting, setting things on fire, breaking the windows, etc.\u2019","Victims and witnesses interviewed by Human Rights Watch described the actions of the law enforcement agents who entered the Republican Prison Hospital to detain the six alleged plotters riot differently from the government. Human Rights Watch reviewed evidence indicating that at least four of the six detainees may have been beaten severely as they were removed from the prison hospital and transferred to Prison No. 7. One detainee told Human Rights Watch:","\u2018On March 27 I was asleep. I was called out of my room by the hospital administration. They took me downstairs and started beating me. This began inside and then continued outside where I lost consciousness. I was taken from the surgical wing. I don\u2019t know who beat me. It happened in the night. People were in masks. I was taken into the yard and people beat me with metal sticks and truncheons, and kicked me.\u2019","The victim was then taken immediately to Tbilisi Prison No. 7. He suffers long-term medical repercussions as a result of the beatings. Human Rights Watch observed the severity of his condition and a doctor confirmed the urgent need for him to receive sophisticated medical treatment.","The ombudsman and a medical professional visited the three other suspected riot plotters allegedly beaten on March 27 when they were removed from the Republican Prison Hospital. The medical expert confirmed numerous injuries consistent with beatings on each detainee. One detainee stated that he was taken from his room and \u2018beaten with [truncheons] in front the [hospital] Director\u2019s Room.\u2019 The medical expert confirmed that the prisoner had been beaten on his abdomen, back, and head, and, as a result, suffered pain in his kidneys, dizziness, and balance problems, as well as nightmares and other psychological problems. The ombudsman and the medical expert confirmed that two of the other alleged riot plotters had injuries consistent with being beaten and suffered serious physical and psychological repercussions. The ombudsman documented the injuries to one of these detainees in photographs which he showed to Human Rights Watch.","Several witnesses interviewed by Human Rights Watch provided further corroboration that several detainees from the prison hospital were beaten in the early morning hours of March 27. One detainee explained:","\u2018On March 27, it started on the second floor. The special forces troops came into the surgery wing of the hospital and took three guys right before our eyes. They beat them on our floor and then took them to the courtyard. They didn\u2019t hide it. They beat them with gun butts and truncheons. People started to cry out. These were three people from separate rooms. One of them has epilepsy. They took them out of the hospital. There were 40, 50, or 60 members of the special forces. There was first one group, then a second. They were in masks and black uniforms.\u2019","Another witness stated: \u2018I saw the special forces troops enter the surgery department. First 20 [people] and then another 20.\u2019 A third said: \u2018It was 1 a.m. and I was sleeping. I heard an inhuman cry that woke me up. I take sleeping medicines, but even so, I woke up. I heard two cries. I saw people in masks in the courtyard. They were beating two people. They cried out. Then they brought a third person out. I have never heard such cries in my life.\u2019","Witnesses who were in the prison hospital at the time stated that hospital detainees started to make noise and protest in reaction to the treatment they saw being inflicted on their fellow detainees. \u2018People started screaming from the hospital windows. They were making a lot of noise. People feared also being beaten. One of the people they were beating has epilepsy. People were shouting \u2018Don\u2019t beat him! He has epilepsy!\u2019\u2019 \u2013 one detainee told Human Rights Watch. According to another detainee, \u2018People started to cry out. Some of the prisoners burned sheets and pillows and put them out the window.\u2019","The disturbance travels to Prisons No. 5 and No. 1","Witnesses stated that once the disturbance started in the prison hospital, detainees in Prison No. 5 and Prison No. 1, located 50 meters away, also began to react. According to one detainee in the prison hospital: \u2018Prison No. 5 looks out onto our hospital. They can see everything. They started to bang dishes and to make noise. They were yelling out, crying out. They wanted to bring attention there.\u2019 \u2018From Prison No. 5, inmates started yelling, \u2018What\u2019s happening?\u2019 and started making noise, and they became louder than people here. It\u2019s only 50 meters away, and at night when it\u2019s quiet, sound travels really well,\u2019 \u2013 another detainee told Human Rights Watch.","In Prison No. 5 and Prison No. 1, detainees made noise by shouting and banging dishes and other implements. They also began to set fire to sheets and other objects and throw them out of the windows. Upon seeing the disturbance in the prison hospital spread to Prisons No. 5 and No. 1, the director of Tbilisi Prison No. 5, G[.]P[.], told Human Rights Watch that he took the decision to remove all personnel from the building for their own safety and to close the building. Ultimately, in Prison No. 1, the authorities were able to put an end to the disturbance without conducting a special operation or using force. However, what happened in Prison No. 5 after the prison staff left the building remains unclear, and even government authorities provide conflicting information.","The authorities reported that detainees on the third, fourth, and fifth floors of Prison No. 5 broke out of their cells or exited their cells. The director of Prison No. 5 stated: \u2018The doors were broken by the prisoners. Absolutely all of them were broken. The doors are so old. That\u2019s why they broke. They used the beds in the rooms. All it takes is 10 people to use the bed and ram it against the door.\u2019 One detainee who had been on the fourth floor of Prison No. 5 on March 27 told Human Rights Watch that, indeed, they had managed to break down their cell door. Other detainees confirmed this.","From the available evidence, it is not clear that detainees broke their doors down en masse. Some detainees said they managed to exit their cells and then opened the doors of other cells. Still other detainees reported that their doors had not been broken or opened and that they did not leave their cells. The Ministry of Justice reports that \u2018prisoners destroyed all cell doors, and most [of the] inmates were outside the cells. Some prisoners went on the roof and set the prison building on fire.\u2019 K[.]M[.], head of the Penitentiary Department special task force, also told Human Rights Watch: \u2018The inmates were burning clothes, blankets, and throwing these out the windows. Some of them had climbed onto the roof. They threw things out and off of the roof. No one could come too close to the building.\u2019 However, when Human Rights Watch asked Prison Director [G.]P[.] about the inmates on the roof he said \u2013 \u2018What? There was no one on the roof.\u2019","[G.]P[.] told Human Rights Watch that at about 2 a.m., he called the head of the Penitentiary Department, who came to the facility, and that 15 minutes later special forces troops arrived and surrounded the prison buildings as a show of strength. The ombudsman, S[.]S[.], who was also present during the operation, stated that there were approximately 150-300 special forces troops. According to witnesses, two armoured personnel carriers or some other type of large military vehicle were also brought into the courtyard.","Soon after the disturbance began, several detainees called E[.]T[.], chairperson of the Parliamentary Committee on Human Rights and Civil Integration, and sheimmediately went to the prison. She told Human Rights Watch: \u2018Inmates told me\u2013 \u2018We\u2019ve taken over the prison, we\u2019re afraid they will start shooting, please come help immediately.\u2019 I had the impression that they wanted me to negotiate with them.\u2019 She stated that, upon arrival at the prison, \u2018I asked the minister of the interior to allow me inside [the prison] with the ombudsman to convince the prisoners to return to their cells. As soon as they opened the door [to the prison], the minister of the interior changed his mind. I was told it was too dangerous to go in, what if the prisoners took me hostage-they wouldn\u2019t be able to help me. So instead they brought me a megaphone, and I addressed [the prisoners].\u2019 [E.T.] stated that she was not afraid to enter the prison and believes that direct contact with the detainees might have diffused the situation: \u2018I still think if I\u2019d gone in, they wouldn\u2019t have taken me hostage.\u2019","The special operation to quell the disturbance","[E.T.], [S.S.], and other officials spoke to the inmates from the prison courtyard using a loudspeaker and asked them to calm down. The government claims that for an hour it issued warnings that \u2018if the orders were not followed [that] force [would be used]\u2019 and only then took a decision that members of the Penitentiary Department and special forces should enter the building. However, according to S[.]S[.]: \u2018Some of the detainees had called me on my mobile phone. They wanted some kind of negotiations, although they didn\u2019t have any particular demands. But they wanted negotiations. The troops gave no warning as they entered. They made no attempts to negotiate. There was just one announcement over the radio [about the operation], which the detainees claim not to have heard given the loud noise they were making themselves.\u2019","Many discrepancies exist about the initiation of the special operation itself. [G][P.], who led the first entry into the prison, stated that he, two colleagues from the Penitentiary Department, and a group of special forces were unable to enter through the main door of the prison because it had been barricaded from the inside. Using a side entrance, they made it to the fourth floor where they started to break down a barricaded door. He claims they heard yelling and gunfire. [G.][P.] described the events that followed to Human Rights Watch:","\u2018The two department employees were shot. As soon as they were shot I took them out of the corridor to a safe place. The special forces troops started to shoot with rubber bullets into the windows and ceiling to scare the prisoners. Then the special forces troops entered the fourth floor. It was dark. The prisoners had broken the lights. We heard other gunfire and the special forces troops started to shoot [with automatic weapons]. This was happening on the fourth floor, but some distance from us.\u2019","According to the Ministry of Justice, however, the events unfolded differently. While, as noted above, the head of Prison No. 5 states that he and his colleagues were shot at and his two colleagues were wounded as they entered the fourth floor, the ministry claims that the authorities initiated the shooting by firing rubber bullets. Only at that moment did the prisoners initiate fire in the direction of the Penitentiary Department employees. In its report to the UN Committee Against Torture, the Ministry states:","\u2018Having cleaned the blocked entrance of the building, the Director of the Prison No. 5 with several Special Task Force officers entered the building and once again called on the prisoners to calm down, this resulted [in] the counter-reaction of the inmates and they began moving towards the administrators; therefore the special task force used the guns with rubber bullets; the prisoners responded with firearms shooting that resulted in injuries [to two Penitentiary Department employees]. After [the] wounding [of] the staff members of the Penitentiary Department, the decision to open the counter fire was made immediately.\u2019","The government now claims that six firearms were found in the prison, together with dozens of knives. However, conflicting information persists about the exact number of firearms. In a press conference immediately following the incident, the minister of justice reported to the media that five weapons had been discovered. The ombudsman told Human Rights Watch that when he entered the prison immediately after the special forces concluded the operation, he saw two guns allegedly fired by prisoners during the riot. Human Rights Watch could not confirm whether prisoners had firearms and, if they did, how many, and how they were able to obtain them and keep them in the prison. When Human Rights Watch asked how the weapons allegedly used by prisoners entered the prison in the first place, Prison Director [G.]P[.] replied: \u2018I don\u2019t know. Not on my watch.\u2019","Use of force during the special operation","The government does not provide any detail as to what happened after the special forces entered the prison, stating only that \u2018after the abovementioned, the situation went under control, the prisoners entered their cells and stopped resistance.\u2019 Both the government and detainees state that no non-violent means or alternative methods of riot control, such as teargas or water cannons, were utilized; the only means used was gunfire with rubber bullets and live ammunition, resulting in the death of seven detainees and injury to at least 17 detainees. The Standard Minimum Rules require that the authorities should not \u2018use force except in self-defence or in cases of attempted escape, or active or passive physical resistance to an order based on law or regulations. Officers who have recourse to force must use no more than is strictly necessary.\u2019 [...]","Human Rights Watch interviewed numerous detainees who described the use of automatic weapon fire by special forces once they entered the prison. Human Rights Watch interviewed seven detainees who had sustained gunshot wounds from automatic weapons. Representatives of the Office of the Ombudsman also documented gunshot wounds on detainees who had been in Prison No. 5 at the time of the disturbance. These experts also found wounds consistent with being hit by rubber bullets on the hips, buttocks, head, chest, ankle, and feet of 11 different individuals. Human Rights Watch interviewed two people who had been injured by rubber bullets. One detainee told Human Rights Watch, \u2018I was hit twice with plastic bullets on my right thigh.\u2019","Some detainees also reported that authorities had been shooting at the main prison building from the roofs of other buildings and that bullets entered through the windows. At some point in the operation, bullets were fired into their cells from outside the building. As a result, some prisoners felt compelled to leave their rooms for safety reasons. Others reported being injured from this fire. One detainee in a cell on the fourth floor reported: \u2018I was in my room and wounded in my side. They were shooting from the roof [of the administration building] opposite ours and a ricochet bullet hit me.\u2019 A detainee on the fifth floor stated: \u2018There was shooting in the yard. We were afraid and went out of the cell and stood in the corridor. Our door had been opened from the outside. They opened it by breaking the lock. We were watching on our television what was happening to us. There was shooting from the outside. There was shooting from the roofs at our building. We then went into our room and waited. In the cell next to us we heard shooting. There were people shot. There was one person injured and another one killed.\u2019 Another detainee, who sustained two bullet wounds and then lost consciousness stated: \u2018We have big windows in those cells. I think bullets may have come through the windows. I had stood up from my bed. I don\u2019t know who shot me. Everyone was terrified.\u2019 During its visit to Prison No. 5, Human Rights Watch saw holes in the window shutters of numerous cells that appeared consistent with bullet holes. However, a forensic examination is necessary to determine the exact nature of the holes.","Various witnesses confirmed that the authorities fired bullets in the courtyard of the prison during the operation, even in the direction of the prison hospital or the street where dozens of journalists, relatives, human rights activists, and others had gathered. Witnesses reported seeing \u2018lighted bullets,\u2019 apparently tracer bullets, which burn brightly during their flight, enabling the shooter to follow the bullets\u2019 trajectories.","The issue of excessive use of force","As described above, there are discrepancies in various accounts of the special operation to end the disturbance in Tbilisi Prison No. 5, even among different government agencies. Although it is clear that detainees put up an undetermined degree of resistance to the law enforcement agents attempting to regain control of the prison and that special forces troops used lethal force and other violent means to suppress this resistance, the exact nature and proportionality of the force used remains unclear. In these circumstances, it is difficult to conclude whether the shooting described above was excessive, and a thorough investigation by an independent body is the only means to reaching specific conclusions. However, Human Rights Watch was able to document specific individual incidents of excessive and illegal force. These involved at least two cases of shooting of detainees during the operation and several cases of beating of detainees after the operation.","Human Rights Watch was able to document two cases in which special forces troops appear to have shot detainees, who were not posing an immediate threat or danger to the guards, without issuing any warning or using other means to subdue the detainees. According to one injured detainee, who sustained five bullet wounds:","\u2018I was afraid of the gunfire. There was panic in our room. I was afraid of being killed. We all were. Some people were saying to us \u2013 \u2018Take it easy, don\u2019t worry, they won\u2019t kill us.\u2019 The door of our cell was closed. A guy with an automatic weapon and a mask came into the room. He started to swear at us. He was alone standing in the doorway, but there were others behind him. He said to us \u2013 \u2018So you want a colour television you motherfuckers?\u2019 And then he started to shoot. I was close to him and right in front of him and so I took the first bullets. This all happened really fast. He came in, said these words to us, and then started to shoot. He gave no warning that he would shoot. I lost consciousness. The thing is, we had a television in our room, and a few days before this happened, they wanted to take it away. We said no.\u2019","Special forces apparently shot another prisoner because he could not comply fast enough with their order to lie down on the floor. The prisoner, who sustained multiple gunshot wounds, told Human Rights Watch:","\u2018The special forces came to our corridor. I heard them shooting in the corridor. The special forces were saying, \u2018Lie down!\u2019 at the same moment as they shot. In my room the people who were standing lay down. But for me-some of us were on the top bunk. We couldn\u2019t climb down to lie down because the room was all full of people lying down. One special forces member came into our room and said \u2013 \u2018Lay down motherfucker!\u2019 I came down from my bunk and saw a place near the bed towards the corner. As I moved there, the special forces guy shot me. When prisoners heard the gunfire, prisoners from other cells came into our cell. I was really afraid. I was just watching the door waiting to see what would happen.\u2019","Another detainee told Human Rights Watch that after being shot in the leg by a member of the special forces, he fell to the ground. \u2018Then the special forces guy came over and fired two more bullets into my buttocks, right into my back pockets.\u2019","As part of the operation, apparently once the special forces troops had gained control of the prison, many members of the special forces beat detainees, apparently to punish or subdue them. One detainee told Human Rights Watch that immediately after the operation, \u2018They beat us with truncheons. They also kicked us. [They beat us] like dogs.\u2019 According to another detainee, after the operation had begun, \u2018We just sat in our room and didn\u2019t move. If people were in their rooms they weren\u2019t beaten. But if they had gotten out and had gone to another room they were beaten. I heard how people were beaten. They would scream out in pain.\u2019 A detainee from the fourth floor stated that after the operation, \u2018[The special forces] came and took us into the hall one at a time and beat us practically to death. I lay in bed for a week unable to move.\u2019 Another told Human Rights Watch, \u2018We were taken from our cells and beaten to teach us a lesson.\u2019 One stated that he was even beaten while being transferred out of Prison No. 5: \u2018I was beaten on the head with an automatic weapon, once in the room, once in the van coming here [to Rustavi Prison No. 6].\u2019 Based on interviews with detainees in various penitentiary facilities following the operation, medical experts from the Rehabilitation Center for Victims of Torture \u2018Empathy\u2019 estimated that more than 100 detainees in Prison No. 5 were beaten during the course of the operation or immediately afterward. [...]","Treatment of the wounded","The medical care provided to the wounded following the operation was wholly inadequate.","The detainees who were taken from the Republican Prison Hospital and transferred to Tbilisi Prison No. 7, as described above, reported that they did not receive immediate medical attention for the injuries sustained from the beatings and faced difficulties receiving adequate care. [...]","On April 7 representatives of the Office of the Ombudsman also found that, despite continuing physical and psychological complications associated with the March 27 beatings, the detainees had not received forensic medical examinations, were denied regular contact with doctors, and received no substantive medical treatment. One man reported being afraid to request a visit by the doctor out of fear of additional verbal and physical abuse by the prison authorities. The detainees were not allowed to go outdoors and could not maintain proper hygiene-they could not shave and had limited possibility to wash. There were no medical records related to the detainees in the prison.","Those wounded during the special operation in Tbilisi Prison No. 5 also reported receiving inadequate care. Although numerous ambulances had arrived at the prison, not all inmates were treated immediately by skilled medical personnel, and at the time of Human Rights Watch\u2019s visit, many detainees who were in need of surgery still had not received it. [...]","An expert acting at the request of the Office of the Ombudsman also identified numerous patients in Rustavi Prison No. 6 in need of urgent medical care some weeks after having been injured in the March 27 incident. One detainee had multiple wounds some of which had apparently become infected resulting in fever. The expert determined that other detainees had single bullet wounds that required surgery and other serious treatment. One detainee with a chest injury had not received an x-ray or consultation with a specialist. The expert noted that the prison did not have a registry to record injuries of the incoming detainees and kept no medical documentation regarding sick or injured detainees.","Discrepancies in the number of killed and wounded","The Ministry of Justice report states that during the operation two special forces members were wounded and 10 were injured. The report does not specify the types of wounds or injuries, nor does it clarify the difference between wounds and injuries. The report also states that two members of the Penitentiary Department suffered gunshot wounds at the beginning of the operation. It is not clear whether the injuries to the Penitentiary Department employees are counted separately or in the total number for government agents wounded and injured.","The total number of inmates killed and wounded in the operation remains unclear. According to official information provided to Human Rights Watch by the Penitentiary Department, seven inmates were killed. However, initial reports indicated that there may have been more casualties than officially recorded and that in at least one case a death attributed to other causes was in fact a result of the operation. ...","The number of wounded is in even greater dispute. The government itself provides conflicting information. In statistics provided to Human Rights Watch in May 2006, the Penitentiary Department gives the names of 17 wounded inmates. In contrast, the Ministry of Justice states in its May 2006 report to CAT, \u2018After bilateral fire seven prisoners died and 22 inmates received injuries of different gravity.\u2019 Representatives of the Office of the Ombudsman, including one physician, visited detainees in Rustavi Prison No. 6 who had been transferred from Tbilisi Prison No. 5 following the March 27 operation. Initially, the staff of Rustavi Prison No. 6 told the ombudsman\u2019s representatives that eight of the prisoners transferred had been wounded during the March 27 operation. However, the representatives found 15 patients with wounds, including gunshot wounds, sustained during the March 27 operation. They stated: \u2018For lack of time we could not survey all the cells, so we can assume that the number of [wounded] prisoners is even higher.\u2019","Additionally, Human Rights Watch interviewed 14 other individuals who sustained injuries during the March 27 operation. These included seven individuals who suffered gunshot wounds and two detainees wounded by rubber bullets, as well as five detainees who were injured as a result of beatings. Taken together, the information collected by Human Rights Watch and the Office of the Ombudsman suggest that the actual number of wounded may be higher than reported by the government.","Planning the operation","Very little information is available about what kinds of plans, required by law, were in place for addressing the kind of disturbance that erupted in Prison No. 5 and how those plans were executed. It is also unclear whether such plans addressed the requirements for the use of force set out by the European Prison Rules [...].","According to the Ministry of Justice, the special operation \u2018was carried out fully in accordance with the Georgian legislation and prison rules,\u2019 but does not elaborate on the operation\u2019s compatibility with international obligations or provide any evidence of the planning that went into the operation. Information collected by Human Rights Watch raises questions as to the actual plan in place for the operation. Prison Director [G.][P.] told Human Rights Watch: \u2018Of course there is a rule, and we know how to deal with different situations. Plus, you just decide how to act as the events unfold.\u2019 Deputy Director S[.]O[.] immediately added: \u2018It\u2019s like when you have to go to the toilet-you just figure out how to do it and act.\u2019 Although it is clear that special forces of the Ministry of Justice as well as special forces from the Ministry of Internal Affairs conducted the operation, most people interviewed by Human Rights Watch could not state who was in charge of the operation. Even Prison Director [G.][P.], who himself participated in the operation, stated: \u2018I don\u2019t know who was in charge of the operation; I don\u2019t know who controlled the special forces. The special forces all have the same uniforms and masks. I can\u2019t say from where they come.\u2019","With respect to planning, E[.] T[.] told Human Rights Watch: \u2018The minister of the interior promised me they\u2019d use only rubber bullets. They showed me the special weapon that fires these bullets. They said they would do everything to ensure there were no casualties. But the special forces started [the operation], and they were already shooting real ammunition [...] It seems to me that it would have been possible to avoid live fire and the loss of life. I think we could have escaped deaths.\u2019","Investigation into the March 27 incident in Tbilisi Prison No. 5","According to information provided to Human Rights Watch by the General Prosecutor\u2019s Office, on March 25, 2006, the Investigative Department of the Ministry of Justice opened an investigation into the alleged plotting of a riot in the penitentiary system and pursued this investigation following the disturbance on March 27. After March 27 the scope of the investigation expanded to include charges of membership in a criminal society, but did not include any articles of the Criminal Code related to the death of seven inmates or the conduct of law enforcement agents during the operation. The authorities claimed that in evaluating the March 27 events, the investigation would nevertheless examine the actions of law enforcement agents. [...]","Four days after the March 27 incident, OSCE Chairman-in-Office Karel de Gucht called upon the Georgian authorities to open an independent investigation, noting that \u2018a lack of clarity exists\u2019 following the March 27 incident and that \u2018it would be appropriate to set up an independent and public enquiry to investigate the events, including allegations of a disproportionate use of force by government troops which resulted in a large number of victims.\u2019 The government refused to do so, saying that the investigation into the causes of the riot that was already underway made an independent investigation unnecessary. Yet, at that time, even members of the ruling National Movement Party were unclear as to the exact nature of the investigation, claiming that the General Prosecutor\u2019s Office had opened the investigation into the possibility that excessive force had been used, when in fact the investigation had been opened by the Ministry of Justice and only into the facts regarding the organization of the alleged riot, as described above by the General Prosecutor\u2019s Office itself.","Publicly, the government has stated unequivocally that law enforcement agents acted lawfully. Saakashvili hailed the Justice Ministry staff and the Georgian police whom he claimed \u2018acted extremely professionally.\u2019 N[.]B[.], the speaker of parliament, was quoted as having praised the police saying they used \u2018adequate force\u2019 to prevent a jailbreak.","The deputy prosecutor general, when asked why an investigation into the death of seven detainees and whether the force used was absolutely necessary was not opened immediately, told Human Rights Watch that these facts would be examined under the investigation into the planning of the riot opened on March 25. The deputy prosecutor general further stated that evidence suggesting that detainees had damaged the prison was sufficient to explain the need for the use of firearms. She stated: \u2018The assumption from the beginning is that the use of force was justified because all evidence showed there was clear resistance. The whole prison was destroyed. It was more than clear because everything was destroyed, everything was burned. No single door was left.\u2019 [...]\u201d","111.In its World Report, published in 2010, Human Rights Watch made the following conclusion regarding the anti-riot operation of 27 March 2006:","\u201cThe government has failed to conduct a thorough investigation into the March 2006 operation to quell a riot in Tbilisi Prison No. 5, which left seven prisoners dead and dozens injured.\u201d","B.Amnesty International","112.In September 2007 Amnesty International published its Briefing to the Human Rights Committee on Georgia. The relevant excerpts from that document (on pages 7-9 and 11-13) read as follows:","\u201cLethal use of firearms by police and prison officials","\u201c[...] Lethal force was also used when the authorities quelled a prison disturbance in March 2006. There were allegations that special forces troops involved in this operation may have used excessive force.","Prison disturbance in March 2006: at least seven inmates killed by special forces","According to the authorities, special forces entered investigation-isolation prison no. 5 in Tbilisi early on 27 March 2006 to suppress an armed riot and attempted break-out that ringleaders had allegedly organized in advance. The same day the Justice Minister of Georgia stated at a press briefing that the special forces had urged the inmates to stop the riot several times in vain, before launching the special operation. At a session of the National Security Council later that day President Saakashvili was reported as thanking officials of the Ministry of Justice and the police \u2018who acted highly professionally in order to save the citizens of the country from the misfortune that could have happened [...] Last night in Tbilisi more than 4000 dangerous criminals could have escaped [...] This would have meant hundreds of stolen cars, hundreds of raped people, hundreds of robbed houses, hundreds of murder cases and many other disasters and disorders.\u2019","The Human Rights Protection Unit of the Prosecutor General\u2019s Office informed Amnesty International on 21 May 2007 that special forces officers called on the inmates to \u2018calm down\u2019. Their request was \u2018followed by the counter-reaction of the inmates as they began to move towards the officers, throwing stones and pieces of metal and wood at them. In response, the special task force used the guns with rubber bullets. The prisoners responded with firearms. As a result two officers of the Department of Prisons were wounded. The decision to open fire by the Special Force was taken only after the inmates had used firearms.\u2019","According to local human rights activists, the special forces operation was carried out to put down a spontaneous protest by detainees against physical and verbal abuse of inmates in the near-by central prison hospital by a senior official of the Ministry of Justice and special forces earlier that night. Non-governmental sources alleged that the special forces that entered the investigation-isolation prison did not use alternative non-violent means to establish control of the prison, but instead fired automatic weapons and rubber bullets, and beat detainees with truncheons. According to G[.]G[.], the Head of the Department on Investigation and Monitoring at the Office of the Ombudsman of Georgia, who was in the yard of the investigation-isolation prison at the time, the authorities gave no warning before they started shooting at the inmates. The Ombudsman alleged that special forces were likely to have \u2018continued to fire even when the revolt [had] actually ended and the prisoners did not resist [...] anymore\u2019.","At least seven inmates died and many others were wounded in this special operation.","The Ombudsman of Georgia and local NGOs also raised concern at the lack of adequate medical treatment of those injured as a result of the events both in the central prison hospital as well as in investigation-isolation prison no. 5 on 27 March 2006. For example, according to a statement issued by the Ombudsman\u2019s Office on 7 April, six men who allegedly sustained injuries as a result of beatings by officials in the prison hospital were transferred to investigation-isolation prison no. 7 in Tbilisi later that night without an authorization by prison doctors and were only given access to medical personnel after the Ombudsman\u2019s intervention. According to information from the NGO Empathy received by Amnesty International on 9April 2006, many detainees who had sustained bullet wounds on 27 March 2006 and were subsequently transferred to investigation-isolation prison no. 6 in Rustavi, were left without immediate medical treatment and the wounds of some of them started to fester. [...]","Investigation into allegations of excessive force used by special forces in March 2006 prison disturbance","On 27 March 2006, the day of the prison disturbance, senior government officials including President M[.]S[.] refuted allegations that excessive force had been used by the authorities and affirmed that security forces had acted appropriately. According to a report by the US-funded Radio Liberty, on 28 March members of the pro-government majority in parliament, accusing opposition politicians of \u2018patronizing criminals\u2019, rejected a proposal to set up a parliamentary inquiry into the 27 March events.","According to Human Rights Watch \u2018the government waited until three months after the violence to open an investigation into whether special forces troops exceeded their authority.\u2019","The Human Rights Protection Unit of the Prosecutor General\u2019s Office informed Amnesty International on 21 May 2007 that in order \u2018to verify the lawfulness of the measures taken by the law-enforcement officers, in particular the fact of opening fire at the inmates [...] an investigation was initiated\u2019 under Article 333, paragraph 3(\u2018exceeding official authority\u2019) and that this investigation, among other issues, looked into the deaths of the seven inmates. In addition to that investigation, according to the Human Rights Protection Unit, on 23 October 2006, separate investigations were initiated under Article 108 of the Criminal Code (\u2018premeditated murder\u2019), to ascertain the cause of death of the inmates. The Unit also stated that 190 inmates had been interviewed as witnesses in the course of the investigations into the March 2006 events. Reportedly, 37 inmates of investigation-isolation prison no. 5 told prosecutors that staff of the penitentiary department had repeatedly called on the inmates to \u2018stop resistance\u2019 and that the officers only started shooting with rubber bullets after one inmate had fired at them with a pistol. Then \u2018the inmates started to move towards the officers and soon they heard [shouts] that one of the staff members was wounded. After this the officers opened fire. However, they were firing in the air and not in the direction of the inmates.\u2019 In its May 2007 letter the Human Rights Protection Unit informed Amnesty International that the investigation was still ongoing.","G[.]G[.], the Head of the Department on Investigation and Monitoring at the Office of the Ombudsman of Georgia, informed Amnesty International on 7 August 2007 that his office had not received replies from the Prosecutor General\u2019s Office regarding whether preliminary investigations had been opened against staff of the Ministry of Internal Affairs; whether or not the injured prisoners had been recognized as victims; and whether the family members of the deceased prisoners had been recognized as their legal successors.","Non-governmental sources alleged that the authorities have not granted the relatives\u2019 lawyers access to the investigation. One source alleged that \u2018access was denied by the authorities under the pretext that the force which was used by the authorities was lawful and that any injuries or damages caused to the inmates did not result from any criminal acts\u2019.","Reportedly, appeals against this decision were unsuccessful in the courts. Subsequently, several relatives reportedly applied to the European Court of Human Rights. [...]\u201d"],"169":["7.The first applicant was born in 1975 and lives in Ejmiatsin. The second applicant was born in 1958 and lived in Yerevan.","The first applicant is a member of the Armenian military. The second applicant was the uncle of the deceased G.M., who was a lieutenant in the Armenian army.","8.In January 2004 the first applicant and G.M. arrived in Budapest (Hungary) with a view to participating in a three-month English language course organised within the framework of the NATO-sponsored \u201cPartnership for Peace\u201d programme. The course included two participants from each of the former Soviet Socialist Republics, including two officers from the Azerbaijani army. The participants were all accommodated on the campus of Hungary\u2019s National Defence University.","9.At around 5 a.m. on 19 February 2004, one of the members of the Azerbaijani army, R.S., murdered G.M. while he was asleep by decapitating him with at least twelve blows of an axe. R.S. then tried to break down the door of the first applicant\u2019s room allegedly yelling \u201cOpen the door, you Armenian! We will cut the throats of all of you!\u201d He was ultimately stopped by the police who had meanwhile arrived at the scene.","10.The Azerbaijani Government disputed whether R.S. had really yelled out \u201cWe will cut the throats of all of you!\u201d They argued that only the first applicant had testified to that effect.","11.In subsequent criminal proceedings, R.S. was questioned by the police four times during the investigation. The first round of questioning took place on 19 February 2004 in the presence of a court-appointed defence lawyer and, at R.S.\u2019s request, an interpreter from Hungarian into Russian. During the questioning, which lasted for three hours, R.S. gave a detailed account of the events. He said that he strongly disliked Armenians because he had lost relatives in the Nagorno-Karabakh conflict. As for the Armenian participants in the language course, R.S. said they had provoked and mocked him and the Azerbaijani flag on several occasions, which was why he had decided to buy an axe and kill them on the anniversary of the beginning of the conflict between Armenia and Azerbaijan over the Nagorno-Karabakh region (for general background information, see Chiragov and Others v. Armenia [GC], no.13216\/05, \u00a7\u00a7 12-31, 16 June 2015, and Sargsyan v. Azerbaijan [GC], no.40167\/06, \u00a7\u00a7 14-28, 16 June 2015). For that purpose he had bought an axe and a sharpening stone in a local store two days prior to the killing. R.S. also admitted that he had murdered G.M. on account of his Armenian origin; he showed no remorse for the crimes committed.","12.At the third round of questioning R.S. said for the first time that, although he spoke Russian, he did not always understand the Russian-language interpreter he had been provided with. At the fourth round of questioning, at his request, R.S. was provided with an interpreter from Hungarian into his native language.","13.The Azerbaijani Government disputed whether R.S. had killed G.M. solely on account of his Armenian nationality. To that end, they produced an affidavit lodged by R.S.\u2019s defence lawyer during the appeal stage of the proceedings, which stated that there was no reasonable evidence that the crime had been committed either because of the Armenian origin of the victim or with extreme brutality. The affidavit also stated that R.S.\u2019s defence rights had been seriously violated during his trial in Hungary. In particular, he had not been informed of his rights during the police questioning and he had initially been provided with an interpreter from Hungarian into Russian, a language which he did not understand.","14.During the criminal proceedings, R.S. was also subjected to four expert psychiatrist examinations. The reports of two of those examinations established that R.S. had been able to understand the danger and the consequences of his actions. Although he had had limited consciousness at the material time, he had not been suffering from a pathological state of mind, rather one which could be considered as healthy but reflecting the gravity of the situation. Another psychiatric report had stated that R.S. suffered from post-traumatic stress disorder, whereas one report was deemed unacceptable by the court since it had failed to provide replies to relevant questions.","15.On 13 April 2006 the Budapest High Court found R.S. guilty of the exceptionally cruel and premeditated murder of G.M. and of preparation for murder of the first applicant. The court also concluded that the crimes were committed with vile motives and exclusively because of the Armenian nationality of the victims. The first-instance court considered all four psychiatric reports and gave detailed reasons for accepting the conclusions of two of them. It also examined in detail the issue of the alleged premeditation of the crimes, R.S.\u2019s proficiency in Russian (concluding that he had been fluent in that language) and the seriousness of his intent to kill the first applicant. R.S. was sentenced to life imprisonment, with a possibility of conditional release after 30 years.","16.R.S. appealed against the first-instance judgment, claiming, in substance, that because of his poor command of Russian, his psychiatric examinations had not been properly conducted. He also claimed that he had not bought the axe in order to kill the Armenian participants on the course, but for self-defence.","17.The first-instance judgment was upheld by the Budapest Court of Appeal on 22February 2007. The second-instance court observed that, as regards the language issue, R.S. had been offered an interpreter into whichever language he requested. It also observed that the first-instance court had paid attention to establishing the mental capacity of R.S. by conducting multiple assessments of his mental state, confronting the various experts with each other and committing no faults of logic in its assessment. R.S. was sent to serve his sentence in a Hungarian prison.","18.R.S. sought transfer to Azerbaijan in 2006 and 2008 in order to enable him to serve his prison sentence in his home country. Both requests were refused by the Hungarian authorities, allegedly owing to another unrelated set of criminal proceedings for violence against a prison guard that had been pending against him in Hungary (see paragraph 188 below).","19.On 12 July 2012 Azerbaijan lodged a fresh request for R.S.\u2019s transfer. Upon a request by the Hungarian authorities under Article 6\u00a71 (c) of the Council of Europe Convention on the Transfer of Sentenced Persons (\u201cthe Transfer Convention\u201d, see paragraph 38 below), on 15August 2012 Azerbaijan\u2019s Ministry of Justice informed them that, in the event of the transfer of a prisoner convicted abroad, the enforcement of the sentence would be continued in Azerbaijan without any \u201cconversion\u201d of the sentence. In addition, the letter stated that in Azerbaijan a person serving a life imprisonment sentence may only be released on parole after having served at least twenty-five years\u2019 imprisonment. On 17 August 2012 the Hungarian Minister of Justice agreed to R.S.\u2019s transfer to Azerbaijan with a view to his serving the remainder of his sentence there.","20.On 31 August 2012 R.S. was transferred to Azerbaijan. On his arrival, he was set free on the basis of a presidential pardon that had been issued on the same day.","21.On 1 September 2012 R.S. was promoted to the rank of major by the Minister of the Defence during the course of a public ceremony. On 6December 2012 he was provided use of a flat belonging to the State housing fund and, at an unknown date, he was also awarded eight years of salary arrears.","22.Following R.S.\u2019s release, on 31 August 2012 the Hungarian Government issued a statement in response to the transfer and pardon of R.S., reiterating the conditions for such a transfer under the Transfer Convention. Furthermore, it reiterated the fact that the Azerbaijani Ministry of Justice had stated that the act for which the sentence had been imposed constituted a criminal offence in Azerbaijan punishable by life imprisonment with the possibility of being released at the earliest only after twenty-fiveyears. Additionally, assurances had been received that the sentence of R.S. would not be converted but would rather continue to be enforced, pursuant to the judgment of the Hungarian courts.","23.In a press release dated 2 September 2012, the Hungarian Government expressed its disapproval of the presidential pardon given to R.S. and of the resulting breach of international law, emphasising that the Hungarian Government had acted in accordance with all international rules.","24.A report issued by the Hungarian Commissioner for Fundamental Rights on 7 December 2012 observed that the actual transfer of R.S. had been approved (though not enforced) before any assurances had been received from the Azerbaijani authorities. In the Commissioner\u2019s opinion the Hungarian authorities ought to have requested from Azerbaijan assurances that it would not grant a pardon to R.S. \u2013 at least not without Hungary\u2019s prior knowledge. The failure to do so endangered the rule of law and the requirement of legal certainty. The Commissioner further stressed that the Hungarian authorities should have been aware of the fact that, upon his transfer, R.S. would be pardoned and that the societies of the two countries assessed his acts in fundamentally different ways.","25.The applicants pointed out that a special section had been set up on the webpage of the President of Azerbaijan labelled \u201cLetters of Appreciation regarding [R.S.]\u201d, where individuals could express their congratulations on his release and pardon. They also submitted the statements cited verbatim below, which, according to them, were made by various Azerbaijani officials and public figures and other individuals, either after the killing and attempted murder, or following the granting of R.S.\u2019s pardon. The Azerbaijani Government have not contested the veracity of these statements.","\u201cR.S. should become an exemplary model of patriotism for the Azerbaijani youth.\u201d Elmira Suleymanova, Azerbaijani Ombudsman (2004).","\u201cArmenians should better not sleep peacefully as long as the Karabakh conflict is unsettled, the possibility of incidents similar to the one in Budapest cannot be ruled out.\u201d Agshin Mehdiyev, Ambassador, Permanent Representative of Azerbaijan to the Council of Europe (2004).","\u201c... If at present stage, the Azerbaijani public does not manage to rescue R.S. from the hands of the Armenian diaspora, we will not be able to win the war for the liberation of the occupied Azerbaijani lands in the future.\u201d Gultekin Gajiyeva, then a member of the Azerbaijani delegation to the Parliamentary Assembly of the Council of Europe (2004).","\u201cIf we do not manage to defend R.S. now, no Azerbaijani will bear arms against the Armenians in case of need in the future.\u201d Zakhid Oruj, Azerbaijani member of parliament (2004).","\u201cR.S. must become a symbol of patriotism for the Azerbaijani youth. We therefore ask for high distinction of the Azerbaijani officer for such courage.\u201d The Organisation for the Liberation of Karabakh (2005).","\u201cDear [R.S.]! Congratulations! Ins\u2019h\u2019allah, I wish that you celebrate your thirty-fifth birthday at home. After having met you in the Hungarian jail and a long talk with you, I am grateful to fate that I am closely acquainted with such a patriotic young man who loves his country.\u201d An Azerbaijani Member of Parliament (2011).","\u201cWe all dream that R.S., being a role model for any Azerbaijani citizen, returns to the motherland. However, unfortunately, that is still impossible. So what are the reasons it has not been possible to achieve his extradition? Of course, our enemies hinder that, they exert every possible effort to prevent his return to the motherland. And that is understandable \u2013 they have no heroes like [R.S.] and will never have; ones who love their motherland, their people, love their nation more than themselves and care for its honour. As for us, we have many young men and women like [R.S.], who are selfless patriots.\u201d Elnara Kerimova (2011).","\u201cR.S. hacked an Armenian officer to death with an axe in 2004. At first people supported him, and then forgot him. When Eynullah Fatullayev was in custody, there were more people with bleeding hearts for him, than for [R.S.] who killed an Armenian serf.\u201d Cinare Vuqar (2011).","\u201cAt present, conferral of the title of a national hero upon R.S., who is a hostage in a Hungarian prison, may become a pillar and basis for raising patriotic and combat spirit of the Azerbaijani youth ... He was forced to choose that path, and as a true officer, he punished \u2013 in a truly Turkish way, the man who insulted the flag of the independent Azerbaijan. The motherland must evaluate this deed on the merits. Mister President! On behalf of the Azerbaijani youth, we ask You, as the President and the Commander-in-Chief of the armed forces to confer a title of a national hero upon R.S. and to perpetuate his name.\u201d Zaur Aliyev, head of the \u201cDiaspora and Lobby\u201d Centre for Strategic Research (2011).","\u201cR.S. has been released! Congratulations, Azerbaijani people! We are grateful to the President of the country for returning R.S. to Azerbaijan and for pardoning him.\u201d Ganira Pashayeva, Member of Parliament (2012).","\u201cR.S. has fulfilled his duty before the Azerbaijani people; the state and the public have evaluated R.S. on the merits.\u201d Akif Nagi, Chairman of the Organisation for the Liberation of Karabakh (2012).","\u201cThe decree of the Azerbaijani President llham Aliyev on pardoning is worthy of the highest praise. The Ministry of Defence has been glad to hear the news on R.S.\u2019 extradition from Hungary to Azerbaijan and the further pardon of him.\u201d Teymur Abdullayev, deputy head of the Azerbaijani Ministry of Defence\u2019s press office (2012).","\u201cIt has become yet another proof of humanism of President llham Aliyev, of his care for Azerbaijani citizens.\u201d Elmira Suleymanova, Azerbaijani Ombudsman (2012).","\u201cFor this reason it is necessary to create conditions for service of such officers as [R.S.], who are willing to sacrifice themselves, patriots of Azerbaijan.\u201d Bahar Muradova, Azerbaijani Vice-speaker of Parliament (2012).","\u201cSeveral thousands of representatives of Azerbaijani Diaspora of Ukraine have been very happy to learn about extradition and pardon of the officer of Azerbaijani Army, R.S.\u201d Hikmet Javadov, delegate to the Congress of Azerbaijanis in Ukraine (2012)","\u201cHandover of R.S. to the Azerbaijani side and his pardon is a heartwarming event for the whole Azerbaijan and is an evidence of triumph of justice.\u201d Rauf Mardiyev, Chairman of the Ireli Public Union (2012).","\u201cAnd I am absolutely sure that it is quite natural, that R.S. was welcomed in Azerbaijan as a hero.\u201d Geydar Dzhemal, Political Analyst, Chairman of the Islamic Committee of Russia (2012).","\u201cHaving granted pardon to R.S., President of Azerbaijan explained to the whole world that people working for their Homeland should protect it.\u201d Araz Alizade, Chairman of Social Democratic Party (2012).","\u201cIn my opinion, the decision related to his extradition was a right one. And it is adequate that the Head of the State adopted the decision on granting pardon so quickly, without looking back on the Armenian clamours. It also coincides with public expectations.\u201d Rasim Musabekov, Azerbaijani member of parliament (2012).","\u201cIn our opinion it is a fair decision, which undoubtedly makes our enemies worry. However, we don\u2019t care, for the aim of each Azerbaijani is to fight against his enemies, wherever he is.\u201d Abulfaz Garayev, Azerbaijani Minister of Culture and Tourism (2012).","\u201cPeople accepted the order of the President of Azerbaijan on granting pardon after the extradition to Azerbaijan with great pleasure and satisfaction.\u201d Ali Akhmedov, Deputy Chairman of PYA, its Executive Secretary, Member of Parliament.","\u201cR.S. was returned to his homeland and on that very day the order on granting pardon to him was signed. I think it\u2019s important that the given problem between Hungary and Azerbaijan is solved, and those having worked for it deserve appraisal. R.S. was severely punished for his action, for his serious mistake, in the course of his stay in Hungary he behaved particularly faultlessly, learned the language, translated books. His arrival to his homeland, his release is a very positive fact, congratulations to his family and relatives.\u201d Isa Gambar, leader of the Musavat Party (2012).","\u201cI personally assess the order of President of Azerbaijan on granting pardon to R.S. as a courageous and brave step taken by the Head of State, as well as restoration of justice .... Let\u2019s not forget that [R.S.] and Nagorno-Karabakh are victims of the Armenian provocations. [R.S.] is free, now it is Nagorno-Karabakh\u2019s turn, which will be independent very soon. The day is close when President llham Aliyev, Supreme Commander-in-Chief of the country, will declare the independence[1] of Nagorno-Karabakh.\u201d Ali Ahmedov, Deputy Chairman of the Yeni Azerbaijan party (2012).","\u201cGranting pardon to R.S., officer of the Azerbaijani Army, by President llham Aliyev is a very happy event... [R.S.\u2019] extradition from Hungary to Azerbaijan and the pardon granted to him logically derive from the policy pursued by the President of Azerbaijan on releasing officer-patriot...Logically, [R.S.\u2019] release is the proof of attention paid to our patriots and people with national spirit...The actions taken by R.S. then, were forced. Showing disrespect to our nation, hurting our feelings by an Armenian made him take that step... R.S.\u2019 moral superiority was shown during his imprisonment.\u201d Mubariz Qurbanii, Deputy Executive Secretary of the Yeni Azerbaijan party, and Member of Parliament (2012).","\u201cThis brave step taken by the Head of State shows that, as President of Azerbaijan and Supreme Commander-in-Chief, he supports every national, every soldier and officer of Azerbaijan. This is also an appeal for solidarity to all the Azerbaijani people in front of the enemy.\u201d Fuad Aleskerov, head of the Azerbaijani presidential administration\u2019s Department for Work with Law-enforcement Bodies (2012).","\u201cThis event is a reason for happiness and pride for each of us. To see our soldier here, the faithful son of his nation, taken to prison only because he rose to protect the glory and honour of his homeland and people, is very impressive... The Armenian party launched an anti-Azerbaijani campaign, made up all kind of slander with respect to this matter. That is why the steps for R.S.\u2019 transfer to Azerbaijan should have been taken in full secrecy. Throughout a year, secret negotiations and correspondence were conducted under the strict control of President llham Aliyev, including with law\u2011enforcement bodies of Hungary. The agreement reached during the visit of Viktor Orb\u00e1n, Prime Minister of Hungary, to Azerbaijan, played a crucial role in this matter. R.S. was transferred to Azerbaijan due to determination and will of President of Azerbaijan.\u201d Novruz Mammadov, head of the Azerbaijani presidential administration\u2019s Foreign Relations Department (2012).","\u201cR.S.\u2019 release strengthened the authority of the nation. R.S. is not only the son of his father, but he is also the representative of Azerbaijani people ... this event may enhance the national spirit ... R.S. will fight against the Armenians at the Karabakh front. I am sure that people congratulating each other today will congratulate each other for the liberation of the occupied lands.\u201d Zahid Orudj, member of the Azerbaijani Parliamentary Commission on Defence and Security (2012).","26.The Azerbaijani Government submitted the following statements by various officials:","\u201c... The question of extradition of R.S. was a national and public issue of Azerbaijan in every sense of the word... Of course, the act committed by R.S. has never been approved by the authorities of Azerbaijan, for that act he was arrested by the Hungarian court, and we believe that this corresponds to committed act. But there is one question that Azerbaijani society has discussed for several years.... At that time, the Hungarian court treated R.S. too cruelly, and imposed an inadequate punishment on him, under heavy pressure from Armenians, including the pressure of the representatives of some pro-Armenian diaspora, and foreign organizations... For a crime committed by R.S., European countries, Azerbaijan, and Armenia itself and others impose a punishment of fifteen years, and after serving half the sentence, a prisoner, falling under an amnesty for good behaviour, is released. Therefore punishment passed by Hungarian court for eight and a half years has continuously been assessed by Azerbaijani people as inadequate decision... The result is obvious, and today, after eight and a half years of serving the sentence, the Azerbaijani society regards R.S.\u2019 release as a just act. In fact, the President of Azerbaijan pardoned R.S. using both the opinion formed during that time, and possibility, created by the Azerbaijani law as well... Azerbaijani authorities and socio-political circles do not assess the act committed by R.S. as heroic... We believe that R.S. had to answer for what he did, and he did answer. But the inadequacy of the sentence passed against him to some extent has inclined Azerbaijani public towards R.S...\u201d Ali Hasanov, head of the Azerbaijani presidential administration\u2019s Social and Political Department (2012).","\u201cAs far as the issue of glorification is concerned, then the facts are clearly distorted in order to blow them up. Even though we brought tragic reasons, which led to a grave event, [R.S.\u2019s] actions were never approved or justified at the official level. He was not welcomed by the high officials...\u201d Statement by the delegation of the Ministry of Justice of Azerbaijan to the Council of Europe\u2019s thirty-first Conference of Ministers of Justice (2012).","27.The Constitution of the Republic of Azerbaijan of 12November1995, as amended by the referendum of 24 August 2002, provides as follows:","Article 109. Powers of the President of the Republic of Azerbaijan","\u201cThe President of the Republic of Azerbaijan:","...","22.[is empowered to] grant a pardon; ...\u201d","Article 113. Acts of the President of the Republic of Azerbaijan","\u201cI. When establishing general rules the President of the Republic of Azerbaijan shall issue decrees, and in respect of other questions \u2013 he or she shall issue orders.\u201d","Article 130. The Constitutional Court of the Azerbaijan of Republic","\u201cIII. The Constitutional Court of the Republic of Azerbaijan, based on a request submitted by the President of the Republic of Azerbaijan, the Milli Majlis of the Republic of Azerbaijan, the Cabinet of Ministers of the Republic of Azerbaijan, the Supreme Court of the Republic of Azerbaijan, the Prosecutor\u2019s Office of the Republic of Azerbaijan, and the Ali Majlis of the Autonomous Republic of Nakhchyvan shall resolve the following issues:","1. the conformity of laws of the Republic of Azerbaijan, decrees and orders of the President of the Republic of Azerbaijan, resolutions of the Milli Majlis of the Republic of Azerbaijan, resolutions and orders of the Cabinet of Ministers of the Republic of Azerbaijan, and normative legal acts of central executive bodies with the Constitution of the Republic of Azerbaijan;","2. the conformity of decrees of the President of the Republic of Azerbaijan, resolutions of the Cabinet of Ministers of the Republic of Azerbaijan, and normative legal acts of central executive bodies with laws of the Republic of Azerbaijan;","...","V. Every person shall have the right to lodge, in accordance with the procedure provided by law, complaints with the Constitutional Court of the Republic of Azerbaijan against normative acts of the legislative and executive authorities, acts of municipalities, and judicial acts infringing upon his or her rights and freedoms, for resolving by the Constitutional Court of the Republic of Azerbaijan the issues referred to in items 1-7 of Paragraph III of the present Article, for the purpose of restoration of his or her violated rights and freedoms..\u201d","28.The relevant provisions of the Code of Criminal Procedure of Azerbaijan provide as follows:","Article 56. Persons entitled to damages","\u201c56.0. The following persons shall have the right to compensation for the damage caused through error or abuse by the prosecuting authority:","56.0.1. an accused who is acquitted;","56.0.2. a person against whom a criminal prosecution is discontinued ...;","56.0.3. a person against whom a criminal prosecution should have been discontinued ... but was not discontinued in a timely manner and was pursued further.","56.0.4. a person against whom a criminal prosecution should have been discontinued ..., but which was continued even though the decision [on discontinuation] was upheld;","56.0.5. a person unlawfully arrested or placed in a medical or educational institution by force or a person kept in detention on remand without legal grounds for longer than the prescribed period of time;","56.0.6. a person unlawfully subjected to coercive procedural measures during criminal proceedings ...\u201d","Article 57. Characteristics of compensation","\u201c57.1. The persons stipulated in Article 56 of this Code shall be paid compensation for non-material, physical and material damage resulting from error or abuse by the prosecuting authority. These persons\u2019 residence and labour rights shall also be restored; if that is not possible, they shall be guaranteed financial compensation for a breach of these rights ...\u201d","Article 58. Compensation for damage suffered","\u201c58.1. Material damage as a result of error or abuse by the prosecuting authority shall be substantiated, then calculated and compensated for in full.","58.2. Compensation for pecuniary and non-pecuniary damage shall be paid on the basis of a fair assessment by the court if no other statutory arrangement is laid down.","58.3. Compensation shall be paid as follows to the persons stipulated in Article 56 of this Code for:","58.3.1. loss of salary, pension, allowances and other income;","58.3.2. loss of property caused by forfeiture, transfer to the State, removal by the investigating authorities or distraint;","58.3.3. legal costs;","58.3.4. fees paid to defence counsel;","58.3.5. fines paid or taken during the execution of the sentence ... .\u201d","Article 59. Restoration of other rights in relation to compensation for damages","\u201c59.1. The persons provided in Article 56 of this Code shall have the following rights regarding compensation for damage suffered:","59.1.1. to be reinstated in their previous position; if that is not possible, to be appointed to an equivalent position or to receive financial compensation for loss of the previous position;","59.1.2. for periods of deprivation of liberty and restricted liberty to be included in their [recorded] periods of employment;","59.1.3. to return to their previous residence; if that is not possible, to move to equivalent accommodation with regard also to district and situation;","59.1.4. to the restoration of any special or military rank;","59.1.5. to the return of any honorary title or state award ... .\u201d","29.The Regulation on Pardoning, approved by the Order of the President of the Republic of Azerbaijan no. 538, dated 18July 2001, sets out the procedure to be followed in case of pardons. It provides that a convicted person may apply for pardon upon expiry of a certain period of time. A pardon application shall be submitted to the Commission on Pardon Issues (\u018ffv M\u0259s\u0259l\u0259l\u0259ri Komissiyas\u0131), operating directly under the authority of the President of the Republic of Azerbaijan. The Commission shall examine the case, consult the Prosecutor General and the Supreme Court, and deliver a recommendation to the President to refuse or to allow the pardon application. The relevant parts of that regulation read as follows:","I. General terms","\u201c1. In accordance with Article 109 \u00a7 22 of the Constitution of the Republic of Azerbaijan granting pardon, being a discretionary power of the President of the Republic of Azerbaijan, is applied in respect of individually identified persons. Pardoning shall be applied, as a rule, in line with the provisions of this Regulation. Decision on pardoning shall be formalised by an executive order of the President of the Republic of Azerbaijan.","2. Pardoning may be applied in relation to nationals of the Republic of Azerbaijan, foreigners or stateless persons convicted by the courts of the Republic of Azerbaijan or the courts of other States and serving sentence in the Republic of Azerbaijan.","3. Further to the executive order of the President of the Republic of Azerbaijan:","3.1. convicted person may be released from serving the remaining part of sentence;","3.2. term of imprisonment may be reduced;","3.3. the remaining part of the sentence may be replaced with a lighter sentence.","4. Further to the executive order of the President of the Republic of Azerbaijan, life imprisonment may also be replaced with imprisonment for a term not exceeding 25 years or the criminal record of the convict can be erased....","II. Application for pardon","... 8. Application for pardon may be submitted, as a rule, upon expiration of the following periods: ...","8.4. in relation to the person sentenced to life imprisonment \u2013 after serving 10 years of sentence...\u201d","30.The relevant parts of the Regulation on Military Service, approved by the Law of the Republic of Azerbaijan no. 377-IQ, dated 3 October 1997, read as follows:","Chapter IV \u2013 Military promotion","\u201c41. Every military serviceman shall be assigned relevant military rank depending on his\/her service position, military and special education, duration of service, duration of being a reservist, belonging to a type and a branch of the armed forces, achievements and other conditions provided in this Regulation. ...","42. Military servicemen shall be advanced in rank consecutively according to their military position and following expiration of their term of service in the previous rank.","Military servicemen shall be advanced in rank, having regard to the provisions of this Article, as follows:","junior rank officers \u2013 by the [Minister of Defence of the Republic of Azerbaijan];","senior rank officers \u2013 by the [Minister of Defence of the Republic of Azerbaijan];","general officers \u2013 by the [President of the Republic of Azerbaijan] upon submission of the [Minister of Defence of the Republic of Azerbaijan].","45. Following years in grade shall be defined:","...captain ... 4 years...","...major ... 5 years...\u201d","31.The relevant parts of the Law on Military Duty and Military Service (\u201cH\u0259rbi v\u0259zif\u0259 v\u0259 h\u0259rbi xidm\u0259t haqq\u0131nda qanun\u201d) (no. 274-IVQ of 23December 2011), provide as follows:","Article 32","\u201c32.1 Servicemen, demonstrating higher moral and military skills in the exercise of military duties, reaching higher results in military preparedness and in strengthening military discipline, performing an exemplary service and executing military duties, may be early promoted to a higher military rank after having accomplished the half of the service period provided for the previous military rank (in time of war regardless of the period of service).","Article 33","33.1 Servicemen, who have been convicted of a serious or an especially serious crime, may be deprived of their military rank by a court decision.\u201d","32.Article 166 of the Hungarian Criminal Code (Act No. IV of 1978), as in force at the material time, reads as follows:","\u201c(1) A person who kills someone commits a felony punishable by imprisonment for between five to fifteen years.","(2) The penalty shall be imprisonment for between ten to twenty years, or life imprisonment, if the homicide is committed:","a) with premeditation;","...","c) with other malice aforethought or with other malicious motive;","d) with particular cruelty;","...","(3) Any person who engages in preparations to commit homicide [may be punished] by imprisonment for between one to five years.\u201d","33.Below is a selection of legal documents, which are most relevant for the applicants\u2019 case.","34.Article 11 of the Draft Articles on the Responsibility of States of Internationally Wrongful Acts (\u201cthe Draft Articles\u201d) reads as follows:","Article 11 \u2013 Conduct acknowledged and adopted by a State as its own","\u201cConduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.\u201d","35.The relevant parts of the commentary on Article 11 of the Draft Articles (\u201cILC Commentary\u201d) read as follows:","\u201c(4) Outside the context of State succession, the United States Diplomatic and Consular Staff in Tehran case provides a further example of subsequent adoption by a State of particular conduct. There ICJ drew a clear distinction between the legal situation immediately following the seizure of the United States embassy and its personnel by the militants, and that created by a decree of the Iranian State which expressly approved and maintained the situation.","In the words of the Court:","\u2018The policy thus announced by the Ayatollah Khomeini, of maintaining the occupation of the Embassy and the detention of its inmates as hostages for the purpose of exerting pressure on the United States Government was complied with by other Iranian authorities and endorsed by them repeatedly in statements made in various contexts. The result of that policy was fundamentally to transform the legal nature of the situation created by the occupation of the Embassy and the detention of its diplomatic and consular staff as hostages. The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the Embassy and detention of the hostages into acts of that State.\u2019","...","(5) As regards State practice, the capture and subsequent trial in Israel of Adolf Eichmann may provide an example of the subsequent adoption of private conduct by a State. On 10 May 1960, Eichmann was captured by a group of Israelis in Buenos Aires. He was held in captivity in Buenos Aires in a private home for some weeks before being taken by air to Israel. Argentina later charged the Israeli Government with complicity in Eichmann\u2019s capture, a charge neither admitted nor denied by Israeli Foreign Minister Golda Meir, during the discussion in the Security Council of the complaint. She referred to Eichmann\u2019s captors as a \u2018volunteer group\u2019. Security Council resolution 138 (1960) of 23 June 1960 implied a finding that the Israeli Government was at least aware of, and consented to, the successful plan to capture Eichmann in Argentina. It may be that Eichmann\u2019s captors were \u2018in fact acting on the instructions of, or under the direction or control of\u2019 Israel, in which case their conduct was more properly attributed to the State under article 8. But where there are doubts about whether certain conduct falls within article 8, these may be resolved by the subsequent adoption of the conduct in question by the State.","(6) The phrase \u2018acknowledges and adopts the conduct in question as its own\u2019 is intended to distinguish cases of acknowledgement and adoption from cases of mere support or endorsement. ICJ in the United States Diplomatic and Consular Staff in Tehran case used phrases such as \u2018approval\u2019, \u2018endorsement\u2019, \u2018the seal of official governmental approval\u2019 and \u2018the decision to perpetuate [the situation]\u2019. These were sufficient in the context of that case, but as a general matter, conduct will not be attributable to a State under article 11 where a State merely acknowledges the factual existence of conduct or expresses its verbal approval of it. In international controversies, States often take positions which amount to \u2018approval\u2019 or \u2018endorsement\u2019 of conduct in some general sense but do not involve any assumption of responsibility. The language of \u2018adoption\u2019, on the other hand, carries with it the idea that the conduct is acknowledged by the State as, in effect, its own conduct. Indeed, provided the State\u2019s intention to accept responsibility for otherwise non-attributable conduct is clearly indicated, article 11 may cover cases where a State has accepted responsibility for conduct of which it did not approve, which it had sought to prevent and which it deeply regretted. However such acceptance may be phrased in the particular case, the term \u2018acknowledges and adopts\u2019 in article 11 makes it clear that what is required is something more than a general acknowledgement of a factual situation, but rather that the State identifies the conduct in question and makes it its own.","...","(8) The phrase \u2018if and to the extent that\u2019 is intended to convey a number of ideas. First, the conduct of, in particular, private persons, groups or entities is not attributable to the State unless under some other article of chapter II or unless it has been acknowledged and adopted by the State. Secondly, a State might acknowledge and adopt conduct only to a certain extent. In other words, a State may elect to acknowledge and adopt only some of the conduct in question. Thirdly, the act of acknowledgment and adoption, whether it takes the form of words or conduct, must be clear and unequivocal.","(9) The conditions of acknowledgement and adoption are cumulative, as indicated by the word \u2018and\u2019. The order of the two conditions indicates the normal sequence of events in cases in which article 11 is relied on. Acknowledgement and adoption of conduct by a State might be express (as for example in the United States Diplomatic and Consular Staff in Tehran case), or it might be inferred from the conduct of the State in question.\u201d","36.In the Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 27 February 2007, ICJ Reports 2007, p. 43, the International Court of Justice (\u201cthe ICJ\u201d) held as follows:","\u201c414. Finally, the Court observes that none of the situations, other than those referred to in Articles 4 and 8 of the ILC\u2019s Articles on State Responsibility, in which specific conduct may be attributed to a State, matches the circumstances of the present case in regard to the possibility of attributing the genocide at Srebrenica to the Respondent. The Court does not see itself required to decide at this stage whether the ILC\u2019s Articles dealing with attribution, apart from Articles 4 and 8, express present customary international law, it being clear that none of them apply in this case. The acts constituting genocide were not committed by persons or entities which, while not being organs of the FRY, were empowered by it to exercise elements of the governmental authority (Art. 5), nor by organs placed at the Respondent\u2019s disposal by another State (Art. 6), nor by persons in fact exercising elements of the governmental authority in the absence or default of the official authorities of the Respondent (Art. 9); finally, the Respondent has not acknowledged and adopted the conduct of the perpetrators of the acts of genocide as its own (Art. 11).","415. The Court concludes from the foregoing that the acts of those who committed genocide at Srebrenica cannot be attributed to the Respondent under the rules of international law of State responsibility: thus, the international responsibility of the Respondent is not engaged on this basis.\u201d","37.In its Decision on defence motion challenging the jurisdiction of the Tribunal, issued on 9 October 2002 in Prosecutor v. Dragan Nikoli\u0107, Case No. IT-94-2, the International Criminal Tribunal for the former Yugoslavia (the \u201cICTY\u201d) held as follows:","\u201c60.In determining the question as to whether the illegal conduct of the individuals can somehow be attributed to SFOR, the Trial Chamber refers to the principles laid down in the Draft Articles of the International Law Commission (\u2018ILC\u2019) on the issue of \u2018Responsibilities of States for Internationally Wrongful Acts\u2019. These Draft Articles were adopted by the ILC at its fifty-third session in 2001. The Trial Chamber is however aware of the fact that any use of this source should be made with caution. The Draft Articles were prepared by the International Law Commission and are still subject to debate amongst States. They do not have the status of treaty law and are not binding on States. Furthermore, as can be deduced from its title, the Draft Articles are primarily directed at the responsibilities of States and not at those of international organisations or entities. As Draft Article 57 emphasises,","[t]hese articles are without prejudice to any question of the responsibility under international law of an international organization, or of any State for the conduct of an international organization.","61.In the present context, the focus should first be on the possible attribution of the acts of the unknown individuals to SFOR. As indicated in Article I of Annex 1-A to the Dayton Agreement, IFOR (SFOR) is a multinational military force. It \u2018may be composed of ground, air and maritime units from NATO and non-NATO nations\u2019 and \u2018will operate under the authority and subject to the direction and political control of the North Atlantic Council.\u2019 For the purposes of deciding upon the motions pending in the present case, the Chamber does not deem it necessary to determine the exact legal status of SFOR under international law. Purely as general legal guidance, it will use the principles laid down in the Draft Articles insofar as they may be helpful for determining the issue at hand.","...","64.The Trial Chamber observes that both Parties use the same and similar criteria of \u2018acknowledgement\u2019, \u2018adoption\u2019, \u2018recognition\u2019, \u2018approval\u2019 and \u2018ratification\u2019, as used by the ILC. The question is therefore whether on the basis of the assumed facts SFOR can be considered to have \u2018acknowledged and adopted\u2019 the conduct undertaken by the individuals \u2018as its own\u2019. It needs to be re-emphasised in this context that it cannot be deduced from the assumed facts that SFOR was in any way, directly or indirectly, involved in the actual apprehension of the accused in the FRY or in the transfer of the accused into the territory of Bosnia and Herzegovina . Nor has it in any way been argued or suggested that SFOR instructed, directed or controlled such acts. What can be concluded from the assumed facts is merely that the Accused was handed over to an SFOR unit after having been arrested in the FRY by unknown individuals and brought into the territory of Bosnia and Herzegovina. From the perspective of SFOR, the Accused had come into contact with SFOR in the execution of their assigned task. In accordance with their mandate and in light of Article 29 of the Statute and Rule 59 bis, they were obliged to inform the Prosecution and to hand him over to its representatives. From these facts, the Trial Chamber can readily conclude that there was no collusion or official involvement by SFOR in the alleged illegal acts.\u201d","38.The 1983 Council of Europe Convention on the Transfer of Sentenced Persons (ETS No. 112 \u2013 \u201cthe Transfer Convention\u201d) was ratified by both Azerbaijan and Hungary, in 2001 and 1993, respectively. The relevant provisions of that treaty read as follows:","Preamble","\u201cThe member States of the Council of Europe and the other States, signatory hereto,","Considering that the aim of the Council of Europe is to achieve a greater unity between its members;","Desirous of further developing international co-operation in the field of criminal law;","Considering that such co-operation should further the ends of justice and the social rehabilitation of sentenced persons;","Considering that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society; and","Considering that this aim can best be achieved by having them transferred to their own countries ...\u201d","Article 2 \u2013 General principles","\u201c1.The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention.","2.A person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the provisions of this Convention, in order to serve the sentence imposed on him. To that end, he may express his interest to the sentencing State or to the administering State in being transferred under this Convention.","...\u201d","Article 6 \u2013 Supporting documents","\u201c1.The administering State, if requested by the sentencing State, shall furnish it with:","(a) a document or statement indicating that the sentenced person is a national of that State;","(b) a copy of the relevant law of the administering State which provides that the acts or omissions on account of which the sentence has been imposed in the sentencing State constitute a criminal offence according to the law of the administering State, or would constitute a criminal offence if committed on its territory;","(c) a statement containing the information mentioned in Article 9.2.","...\u201d","Article 9 \u2013 Effect of transfer for administering State","\u201c1.The competent authorities of the administering State shall:","(a)continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or","(b)convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.","2.The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.","3.The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions.","...\u201d","Article 10 \u2013 Continued enforcement","\u201c1.In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.","2.If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.\u201d","Article 11 \u2013 Conversion of sentence","\u201c1.In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:","(a)shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State;","(b)may not convert a sanction involving deprivation of liberty to a pecuniary sanction;","(c)shall deduct the full period of deprivation of liberty served by the sentenced person; and","(d)shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.","2.If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.\u201d","Article 12 \u2013 Pardon, amnesty, commutation","\u201cEach Party may grant pardon, amnesty or commutation of the sentence in accordance with its Constitution or other laws.\u201d","39.A declaration by the Azerbaijani Government in respect of Article12 of the Convention on the Transfer of Sentenced Persons contained in the instrument of ratification by submitted by the Azerbaijani Government reads as follows:","\u201cIn accordance with Article 12 of the Convention, the Republic of Azerbaijan declares that decisions regarding the pardons and amnesties of sentenced persons transferred by the Republic of Azerbaijan should be agreed with the relevant competent authorities of the Republic of Azerbaijan.\u201d","40.Recommendation 1527 (2001) of the Parliamentary Assembly of the Council of Europe on the Operation of the Council of Europe Convention on the Transfer of Sentenced Persons \u2013 critical analysis and recommendations, in so far as relevant, reads as follows:","\u201c1.The Council of Europe Convention on the Transfer of Sentenced Persons (ETS No. 112) provides for the transfer of foreign prisoners to their home countries, both for their own sake and because transfer enhances rehabilitation and reintegration into society, and consequently reduces recidivism. ...","9.For the reasons set out above, the Assembly recommends that the Committee of Ministers: ...","9.3.draw up a new recommendation to member states on the interpretation and application of the Convention, with the following objectives:","...","b. to state clearly that the Convention is not designed to be used for the immediate release of prisoners on return to their own country; ...\u201d","41.Resolution 2022 (2014) of the Parliamentary Assembly of the Council of Europe on measures to prevent abusive use of the Convention on the Transfer of Sentenced Persons (ETS No. 112), in so far as relevant, reads as follows:","\u201c1. The Convention on the Transfer of Sentenced Persons (ETS No. 112) provides for the transfer of foreign prisoners to their home countries. Its purpose is primarily humanitarian, to improve prospects of rehabilitation and reintegration of prison inmates into society.","...","3.The Assembly notes with concern that the Convention was invoked in order to justify the immediate release, upon transfer to Azerbaijan, of [R.S.], an Azerbaijani soldier convicted of murdering an Armenian fellow participant on a \u201cPartnership for Peace\u201d training course in Hungary, sponsored by the North Atlantic Treaty Organization (NATO). Upon his arrival in Azerbaijan, he was welcomed as a national hero and granted an immediate pardon \u2013 long before the expiry of the minimum sentence set by the Hungarian court \u2013 and a retroactive promotion as well as other rewards.","4.While recognising that States Parties, by virtue of Article 12 of the Convention, have a sovereign right to grant pardons and amnesties to persons sentenced to a term of imprisonment, the Assembly recalls that the principle of good faith in international relations, recognised, inter alia, by the Vienna Convention on the Law of Treaties, and the principles of the rule of law require that treaties be interpreted in line with their objects and purposes.","5.The Assembly therefore:","5.1. condemns the use of Article 12 of the Convention by Azerbaijan in the case of [R.S.] as a violation of the principles of good faith in international relations and of the rule of law;","5.2. confirms its position, expressed in Recommendation 1527 (2001) on the operation of the Council of Europe Convention on the Transfer of Sentenced Persons \u2013 critical analysis and recommendations, that the Convention is not designed to be used for the immediate release of prisoners upon return to their home country;","5.3. underscores the importance of applying the Convention in good faith and, in interpreting its provisions, adhering to the principles of the rule of law, in particular in transfer cases that might have political or diplomatic implications;","5.4. recommends to States Parties to the Convention to make, where appropriate, ad hoc arrangements between a sentencing and an administering State in the form of an addendum to a transfer agreement under the Convention, which would spell out mutual expectations and provide for adequate assurances by the administering State.\u201d","42.In its resolution of 13 September 2012 on Azerbaijan: the [R.S.] case (2012\/2785(RSP)) the European Parliament held as follows:","\u201cThe European Parliament,","...","A. whereas [R.S.] had been jailed in a Hungarian prison since 2004 after brutally killing an Armenian colleague during a course sponsored by NATO\u2019s Partnership for Peace Programme in Budapest; whereas [R.S.] had pleaded guilty and had expressed no remorse, defending his action on the grounds that the victim was Armenian;","B. whereas on 31 August 2012 [R.S.], a lieutenant of the Azerbaijani armed forces who had been convicted of murder and sentenced to life imprisonment in Hungary, was transferred to Azerbaijan at the longstanding request of the Azerbaijani authorities;","C. whereas immediately after [R.S.] was transferred to Azerbaijan the Azerbaijani President, Ilham Aliyev, pardoned him in line with the Constitution of the Republic of Azerbaijan and Article 12 of the Convention on the Transfer of Sentenced Persons;","D. whereas Article 9 of the Convention on the Transfer of Sentenced Persons, to which Hungary and Azerbaijan are both signatory parties, states that a person sentenced in the territory of one state may be transferred to the territory of another in order to serve the sentence imposed on him or her, provided that the conditions laid down in that Convention are met;","E. whereas the Deputy Minister of Justice of the Republic of Azerbaijan, Vilayat Zahirov, sent an official letter to the Ministry of Public Administration and Justice of Hungary on 15 August 2012, in which he stated that the execution of the decisions of foreign states\u2019 courts regarding the transfer of sentenced persons to serve the remaining part of their prison sentences in the Republic of Azerbaijan were carried out in accordance with Article 9(1)(a) of the Convention, without any conversion of their sentences; whereas he further gave an assurance that, according to the Criminal Code of the Republic of Azerbaijan, the punishment of a convict serving a life sentence could only be replaced by a court with a term of imprisonment for a specified period, and that the convict could be released on conditional parole only after serving at least 25 years of his or her prison sentence; and whereas the Azerbaijani authorities subsequently denied having given any diplomatic assurances to the Hungarian authorities;","F. whereas [R.S.] received a glorious welcome in Azerbaijan and a few hours after his return was granted a presidential pardon, set free and promoted to the rank of major during a public ceremony;","G. whereas the decision to set [R.S.] free triggered widespread international reactions of disapproval and condemnation;","...","1.Stresses the importance of the rule of law and of honouring commitments made;","2.Deplores the decision by the President of Azerbaijan to pardon [R.S.], a convicted murderer sentenced by the courts of a Member State of the European Union; regards that decision as a gesture which could contribute to further escalation of the tensions between two countries, and which is exacerbating feelings of injustice and deepening the divide between those countries, and is further concerned that this act is jeopardising all peaceful reconciliation processes within the societies concerned and may undermine the possible future development of peaceful people-to-people contact in the region;","3.Considers that, while the presidential pardon granted to [R.S.] complies with the letter of the Convention on the Transfer of Sentenced Persons, it runs contrary to the spirit of that international agreement, which was negotiated to allow the transfer of a person convicted on the territory of one state to serve the remainder of his or her sentence on the territory of another state;","4.Considers the presidential pardon granted to [R.S.] as a violation of the diplomatic assurances given to the Hungarian authorities in Azerbaijan\u2019s request for transfer on the basis of on the Convention on the Transfer of Sentenced Persons;","5.Deplores the hero\u2019s welcome accorded to [R.S.] in Azerbaijan and the decision to promote him to the rank of major and pay him eight years\u2019 back salary upon his arrival, and is concerned about the example this sets for future generations and about the promotion and recognition he has received from the Azerbaijani state;","6.Takes the view that the frustration in Azerbaijan and Armenia over the lack of any substantial progress as regards the peace process in Nagorno-Karabakh does not justify either acts of revenge or futile provocations that add further tension to an already tense and fragile situation;","...\u201d"],"170":["5.The applicant was born in 1939 and lives in Baden-Baden.","6.In 2009 he was living in a common household with his partner, P.B., and her daughter, V. The latter was born in 1987, was then 22 years old, and suffers from a mental disability. P.B. had been appointed V.\u2019s guardian in2007.","7.On an unspecified date in 2009, the public prosecutor initiated criminal proceedings against the applicant in respect of his alleged sexual abuse of a person who had been incapable of resistance. P.B. had reported sexual contact between the applicant and V. She had initially claimed to have caught the applicant and V. naked in bed and touching one another. She had also reported that the applicant had admitted to engaging in sexual contact with V. and that the applicant had attributed the incident to the fact that P.B. had refused the applicant sexual intercourse in the past. P.B. had moreover claimed that the applicant, owing to her financial dependency, had \u201ctaken liberties\u201d in respect of V. Later on in the criminal proceedings, P.B. withdrew her allegations, stating that V. had a right to sexual self\u2011determination and that she had consented to the planned marriage of V. and the applicant.","8.On 10 December 2009 the public prosecutor discontinued the criminal proceedings. On the basis of a statement by V.\u2019s general practitioner dated 10 November 2009, according to which V. had been perfectly capable of physical resistance if she had not consented to sexual relations with the applicant, the public prosecutor considered that it would not be possible to establish that V. was incapable of resistance to sexual acts.","9.On 20 September 2010 the Erding District Court, by means of an interim injunction, placed V. in a residential home for people with disabilities, discharged P.B. as V.\u2019s guardian and appointed a professional guardian. It noted that the proceedings had been initiated after the court had been notified by a medical clinic that V. had likely suffered from sexual abuse, because she suffered from a moderate mental disability and was pregnant by P.B.\u2019s seventy-one-year-old partner \u2013 the applicant. The interim injunction was essentially based on the fact that P.B. had not prevented the applicant from abusing V. and making her pregnant, as well as the fact that P.B. and V. had not manifested any wish to change the circumstances that had led to the abuse of V. and her pregnancy. Prior to delivering its decision, the District Court had heard V. and P.B. and also the applicant in person.","10.The District Court ordered three expert opinions concerning V.\u2019s physical and mental state of health.","11.Subsequently, the public prosecutor, who had been informed by the District Court, initiated criminal proceedings in respect of sexual abuse \u2013 again against the applicant, and for the first time against P.B. (as V.\u2019s guardian at the relevant time).","12.On 2 March 2011 V. gave birth to a son, who has been living with a foster family ever since. At the time that the application was lodged, the applicant, whose paternity had been established, had been having supervised contact with his son about once a month. V. had separate contact with her son about once every four to six weeks.","13.On 21 March 2011 the Erding District Court upheld the interim injunction of 20 September 2010. Relying on three expert opinions dated 3November, 20 December 2010 and 2 March 2011, which were summarised extensively and assessed as valuable in the wording of the decision, relying furthermore on the submissions of the relevant authority, on the criminal case files of the prosecution, on the hearing of V., P.B. and the applicant and on the new hearing of V. in the presence of her guardian on 15 March 2011, it found that V. was in need of a guardian because she was unfit to manage any of her affairs by herself. She suffered from a moderate mental disability and from epilepsy. She was highly restricted in her ability to comprehend, concentrate and memorise things, as well as in her sense of orientation. Her ability to communicate was limited to word fragments, which rendered impossible any meaningful communication. She had no ability to make judgments, as her intellectual development corresponded to that of a four-year-old child (whereas her physical development corresponded to that of a 14- or 15-year-old).","14.The District Court further observed that V. was incapable of resistance in the sense of the relevant criminal provisions, since she had proved easily susceptible to any and every seemingly friendly suggestion. In this respect, she was unable to detect or even oppose inappropriate advances. She was not able to build up lasting relationships, had no sense of the appropriateness (or otherwise) of social situations or time, and no sense of responsibility or the needs of others. She had no comprehension of sexual relationships, marriage or even her pregnancy. Moreover, owing to the events leading up to her pregnancy, she had become significantly distracted. This state of mind had proved to be temporary, due to her lack of memory and any sense of time. The District Court concluded, given the background of the aforementioned facts and developments that guardianship was therefore to be conferred upon the professional guardian already appointed under the interim injunction of 20 September 2010.","15.The District Court also explained in detail why the opinion of the private expert Z. commissioned by P.B. was not convincing and did not lead to other conclusions. In this respect it held that the opinion did not comply with scientific standards as it essentially reproduced information and opinions given by P.B., without appreciating their veracity and reliability and without taking into account available objective information from other sources. The District Court moreover observed that the supposed expert had never met the applicant or V. and concluded that Z.\u2019s expert opinion had no value.","16.As regards the (brief) hearing of the applicant the District Court noted that the applicant declared that in view of the prosecutor\u2019s decision to stay the criminal proceedings (see paragraph 8 above) there was no reason to separate V. from her mother or him. In his view V. was of full age, had a free will and could have sexual intercourse with whoever she wanted.","17.On 24 May 2012 the Traunstein Regional Court proposed to discontinue the criminal proceedings on condition that P.B. pay a fine of 1,000 euros (EUR) and the applicant pay a fine of EUR8,000. The court suggested that condition, as it had established that \u2013 irrespective of whether it was determined that V. had been able to resist (which required an assessment of whether any consent given by her could be considered to have had legal effect) \u2013 it could not be ruled out that the applicant had inevitably erred in his assessment of the legality of his acts. In particular, it could not be ruled out that the applicant was not accountable for relying on the assessment of the public prosecutor of 10 December 2009, according to which it would not be possible to establish that V. was incapable of resisting invitations to engage in sexual intercourse. As a result, criminal liability pursuant to section 179 of the Criminal Code (see paragraph 43 below) was ruled out in these proceedings. The Regional Court, however, drew particular attention to the fact that this December 2009 assessment had been proved wrong, given the findings in the present proceedings. It added that criminal liability pursuant to section 174 c \u00a7 1 of the Criminal Code (see paragraph 43 below) had to be considered as the applicant had taken advantage of the special relationship of confidence between V. and her mother. However, in view of the circumstances and, in particular, the existence of claims for child support and inheritance, the public interest in prosecuting could be satisfied with the payment of the sums indicated to non-profit organisations.","18.On 26 July 2012, after the public prosecutor, P.B., and the applicant had agreed to the proposal, the Regional Court discontinued the criminal proceedings provisionally and on 14 September 2012, after the fines had been paid, definitively.","19.On 2 September 2012 P.B. and the applicant visited V. in order to take part in \u201copen day\u201d festivities on the premises of the residential home in which she now lived. After P.B. and the applicant had left the premises, V., according to the documentation produced by the staff of the residential home, showed clear signs of mental distress, which necessitated medication.","20.On 4 September 2012 V.\u2019s guardian wrote to the applicant prohibiting any contact between him and V. He informed the applicant that, as he (the applicant) had consistently maintained that he wished to pursue an intimate relationship with V., he (the guardian) would make use of his statutory right to prohibit any further contact between the applicant and V. On the same day the guardian also wrote to P.B. prohibiting contact and informed the Erding District Court of these decisions and requested that it issue formal approval of such contact bans.","21.On 6 September 2012 the applicant replied to the guardian in writing, asking him to stop treating V. with psychotropic drugs and to remove the \u201charmful forced\u201d contraceptive coil. Moreover, he opposed the contact ban, since he considered that there was no reason for it. The same day, P.B. who indicated that she lived at the same address as the applicant, replied to the guardian that after the criminal proceedings had been stayed, there were no reasons to prohibit any longer meetings between her daughter and the applicant. She submitted that the contact ban was not in her daughter\u2019s interest and constituted an illegal deprivation of liberty. The mental distress which the guardian had mentioned in his request was the consequence of the arbitrary placement in the residential home of her daughter who wished to come home.","22.On 12 September 2012 the District Court appointed a guardian ad litem (Verfahrenspfleger) for V. since the proceedings concerned the guardian\u2019s request for judicial confirmation of the contact ban and this decision might affect V.\u2019s fundamental rights.","23.On 18 October 2012 the District Court heard V. in the residential home in the presence of her guardian and her guardian ad litem.","24.On 22 November 2012, the District Court decided \u2013 referring to section 23 \u00a7 2 and 7 \u00a7 2 of the Act on Proceedings in Family Matters (see paragraphs 40 and 41 below) \u2013 that the guardian\u2019s request for a contact ban to protect V. was to be communicated to the applicant for his comments, since he would be affected by such a decision.","25.On 22 November 2012, according to a note to the file, the District Court judge met V. on the occasion of a visit to the residential home in the context of another case. V. told him that the applicant would come at Christmas. In reply to the judge\u2019s questions she replied twice that the applicant was the friend of her mother.","26.On 24 November 2012 the applicant received a copy of the request for a contact ban. The responsible judge notified him that in deciding on the contact ban he would take account of (i) the findings which had been made in the guardianship proceedings and the criminal proceedings, (ii) a website, which P.B. had created and on which she portrayed her, V.\u2019s and the applicant\u2019s fight for a common \u201cfamily life\u201d, and (iii) V.\u2019s latest personal hearing, which had taken place before the District Court on18October2012. Lastly, the judge invited the applicant to submit his written comments by 15 December 2012. The applicant did not respond to that invitation.","27.On 10 January 2013 the District Court, presided over by the same judge who had, prior to the decision of 20 September 2010, heard V., P.B. and the applicant in person, prohibited any form of contact between the applicant and V. (including personal encounters, letters and telephone calls), referring to sections 1908i \u00a7 1, 1632 \u00a72 of the Civil Code taken in conjunction with section 23 et seq. of the Act on Procedure in Family Matters (see paragraphs 38-40 below). It added that in case of non\u2011observance of the contact ban a penalty of up to EUR 25,000, alternatively (ersatzweise) up to six months\u2019 imprisonment could be imposed.","28.The District Court held that the applicant\u2019s alleged right to contact with V. lacked any basis in the codified law, because that law provided contact rights only with regard to minors, but not with regard to adults.","29.Moreover, the District Court held that the applicant could not base his claim to a right to contact on the guarantee of family life under Article 6 of the Basic Law (Grundgesetz). V. was, for reasons of her disability, incapable of contracting and of entering into marriage (nicht gesch\u00e4fts- und ehef\u00e4hig). The applicant\u2019s and V.\u2019s child was the result of a severe, massive and illegal violation of V.\u2019s personality rights \u2013 not to say the criminal sexual abuse of a person incapable of resistance. V. had been fully incapable of forming the will to resist seemingly friendly suggestions. Her mental disorder had precluded the ability even to grasp the substance, consequences and risks of sexual acts and pregnancy; her blindly confident and obedient personality had meant that convincing her to engage in sexual relations had not required significant effort.","30.According to the District Court, those conclusions were not put into doubt by the fact that the first set of criminal proceedings had been discontinued because V. had been assumed to be capable of physically resisting (see paragraph 8 above). The public prosecutor had issued that decision without personally hearing V. and had not commissioned an expert opinion on her. The same was true as regards the Regional Court\u2019s decision to discontinue the second set of criminal proceedings (see paragraphs 15 and 16 above). In this respect the District Court observed that P.B.\u2019s changing and contradictory allegations also had to be considered. They suggested that, initially, P.B. had rejected the applicant\u2019s sexual advances, so he had subsequently sought sexual relations with V. Moreover it seemed likely that P.B.\u2019s subsequently expressed wish that the parties be allowed to engage in a normal family life (including a wedding) had been rooted in her fear that she and the applicant would be held criminally liable for aiding and abetting the sexual abuse of a person incapable of resistance.","31.The District Court further noted that V. had not shown that she had any particular bond with the applicant. Rather, she only had unemotional, fleeting and changing memories of a person who, when being personally heard by the District Court, she had consistently referred to as her mother\u2019s partner. Throughout the previous two years, during which she had been living in the above-mentioned residential home, she had not asked for contact with or visits from the applicant, or even noticed his absence.","32.The District Court underlined that V. had the right to have contact with anyone she wished to see and that the guardian\u2019s right to determine her contacts was limited by the right of third persons and by the purpose of the guardianship, which was, in particular, to protect V.\u2019s best interests. It considered that the decision to impose a contact ban had taken sufficient account of V.\u2019s interests. V. had not wished to have contact with the applicant; her guardian ad litem had also agreed that there was no necessity or purpose \u2013 nor any wish on V.\u2019s part \u2013 for any written or personal contact with the applicant. Therefore contact with the applicant not only was not in V\u2019s best interest, but would put her interest severely and durably into danger. The District Court noted in this respect that the applicant continued to pursue his intention to abuse V., which would likely lead to further pregnancies and therefore significant further risks for V., since she did not grasp the implications of pregnancy and was unable to give birth without Caesarean section. Having regard to all of the material before it, it concluded that the contact ban was not only necessary, but even imperative.","33.On 24 January 2013 the applicant, represented by counsel, requested access to the case file in the guardianship proceedings. The Erding District Court informed him that access to a case file in guardianship matters could, under section 13 of the Act on Procedure in Family Matters (see paragraph 40 below), only be granted in so far as strictly necessary, as such a file contained highly personal and sensitive data pertaining to the subject of those proceedings.","34.After the applicant specified that his request concerned all parts of the case file that had been of relevance for the District Court\u2019s decision on contact of 10 January 2013, the District Court provided him with copies of pages 848 to 996 of that file, which included: its decision of 20 September 2010; its decision of 21 March 2011 (which gave detailed summaries of the expert opinions that the court had cited in its decisions); handwritten observations by staff at V.\u2019s residential home concerning her behaviour on 2September 2012 and the following day; the guardian\u2019s request for a contact ban to be ordered; and a detailed record of the personal hearing of V. on 18 October 2012.","35.On 11 February 2013 the applicant appealed against the contact decision of 10 January 2013. On 4 March 2013 he reasoned his appeal and requested a hearing. He complained that he had not been heard in person and that he lacked the necessary knowledge of the contents of the case file in the guardianship proceedings concerning V. Furthermore, the District Court had based its decision on erroneous and insufficiently established conclusions. He requested that further evidence be adduced \u2013 in particular, that different witnesses be heard and another expert opinion be ordered.","36.On 15 March 2013 the Landshut Regional Court dismissed the appeal. Relying on the expert opinions it repeated and endorsed the District Court\u2019s reasoning and confirmed that, in view of the situation, the contact ban was not only lawful but imperative in order to protect V. from sexual assault. It added that there had been no need to hear the applicant in person. He had replied to the guardian\u2019s letter of 4September 2012, had been invited to submit comments by the District Court (see paragraph 24 above) and, assisted by counsel, had submitted twenty-five pages of reasons justifying his appeal. There was therefore no need to hear the applicant in person. Section 34 \u00a7 1 of the Act on Procedure in Family matters did not require a hearing in person because the applicant had had sufficient opportunity to be heard by other means. The Regional Court did not grant leave to appeal against its decision.","37.On 3 June 2013, the Regional Court dismissed the applicant\u2019s complaint of a violation of his right to be heard.","38.On 25 August 2013 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant, without giving any reasons (no. 1BvR1202\/13).","39.Article 6 of the Basic Law (Grundgesetz), in so far as relevant, reads as follows:","\u201c(1) Marriage and the family shall enjoy the special protection of the State.\u201d","40.Sections 1896 et seq. of the Civil Code (B\u00fcrgerliches Gesetzbuch) set out the conditions of guardianship, the criteria used to appoint a guardian and the scope of that person\u2019s guardianship, as well as the rights and duties of the guardian. Section 1901 \u00a7 2 of the Civil Code stipulates that the guardian must attend to the affairs of the person under guardianship in a manner that is conducive to his or her welfare. The best interests of the person under guardianship also include the possibility for him or her, within the limits of his or her capabilities, to shape his or her life according to his or her own wishes and ideas. Lastly, under section 1908i \u00a7 1 of the Civil Code, several other provisions are applicable with regard to guardianship. That applicability pertains, inter alia, to section 1632 \u00a7 2 of the Civil Code, a family law provision that stipulates that childcare duties include the right to determine who has contact with the child in question \u2013 even in respect of \u201cthird parties\u201d.","41.Section 1 of the Act on Procedure in Family Matters (Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction \u2013 Gesetz \u00fcber das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit) specifically provides that the Act is applicable to proceedings in respect of non-contentious matters, to the extent allotted to the courts by law. Sections 271 et seq. of that Act deem guardianship proceedings to constitute such a matter.","42.The procedural rules under the Act on Procedure in Family Matters differ from the procedure provided for regular civil law proceedings in many ways: Under section 7(2)(1) of the Act, persons whose rights would be directly affected by the proceedings are to be included in the proceedings as participants. Section 274(1) of the Act explicitly stipulates in respect of guardianship proceedings that the person concerned, the guardian and the guardian ad litem are parties to such proceedings. Section 13 of the Act provides that participants in such proceedings may inspect the case court file at the offices of the court registry in so far as this does not conflict with any serious interests (schwerwiegende Interessen) of a participant or a third party. Section 23(2) of the Act provides that the relevant court shall transmit \u201cthe application\u201d to the \u201cremaining participants\u201d.","43.The courts can, under section 23 et seq. of the Act on Procedure and Family Matters, initiate certain proceedings ex officio. Moreover, under section 26 of the Act, a court shall conduct necessary enquiries ex officio in order to establish facts that are relevant to the decision in question. Under section 32 \u00a7 1 of the Act, the court may discuss matters with the parties concerned during a court hearing. Under section 34(1) of the Act, the court must conduct an \u201cin-person hearing\u201d when that is necessary in order to ensure a fair legal hearing for the participants, or when so required by the provisions of this or another statute. Under section 48 of the Act, the court of first instance may, possibly also ex officio, rescind or modify a final and binding decision with permanent effect if the factual or legal circumstances have changed significantly. Also, under section 65, a complaint against a decision of a first instance court may be supported by new facts and evidence.","44.Section 170 \u00a7 1 of the Courts Constitution Act (Gerichts-verfassungsgesetz) provides that proceedings, discussions and hearings in respect of family matters and non-contentious matters must not be public. Acourt may admit the public to proceedings but not, however, against the will of a participant. In respect of matters concerning guardianship of an adult and the admission of a person to a closed institution, at the request of the adult concerned a person who holds a position in that adult\u2019s confidence may be permitted to be present.","45.Section 179 of the Criminal Code (Strafgesetzbuch) penalizes sexual abuse of persons incapable of resisting. Section 174c \u00a71 sanctions sexual abuse by abusing, inter alia, a care relationship installed due to a mental or an emotional illness or disability.","46.The relevant provisions of the United Nations Convention on the Rights of Persons with Disabilities, which Germany adopted on 30March2007 and which entered into force on 26 March 2009, are reproduced in A.\u2011M.V. v. Finland, no. 53251\/13, \u00a7\u00a7 39\u201148, 23 March 2017 and I.C.v.Romania, no. 36934\/08, \u00a7\u00a741\u201144, 24 May 2016.","47.In 2015, the United Nations Committee on the Rights of Persons with Disabilities issued its concluding observations on the initial report of Germany. In its observations, the Committee expressed concern that the legal instrument of guardianship, as outlined in and governed by the German Civil Code, was incompatible with the Convention. It recommended that: all forms of \u201csubstituted\u201d decision-making be eliminated and replaced by a system of supported decision-making, in line with the Committee\u2019s General Comment No. 1(2014) on equal recognition before the law; the development of professional-quality standards for supported decision-making mechanisms; and (in close cooperation with persons with disabilities) the provision of training on Article 12 of the Convention, in line with the Committee\u2019s General Comment No. 1, at the federal, regional and local levels for all actors (including civil servants, judges, social workers, health and social services professionals and people from the wider community)."],"171":["1.The applicant was born in 1955. At the material time he lived in Rostov-on-Don. The applicant, who had been granted legal aid, was represented by MrE.Markov, a lawyer admitted to practice in Ukraine.","2.The Government were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.","3.The facts of the case, as submitted by the parties, may be summarised as follows.","4.The applicant is a journalist. At the material time he was the sole owner of Informatsionno\u2011pravovoy Tsentr Aleksandra Tolmacheva (\u201cIPT\u201d), a legal entity responsible for editing the Argumenty Nedeli Yug newspaper (\u201cthe newspaper\u201d).","5.On 27 May 2010 the newspaper published an article entitled \u201cAnIncident Involving the Judiciary\u201d (\u0427\u041f \u0441\u0443\u0434\u0435\u0439\u0441\u043a\u043e\u0433\u043e \u043c\u0430\u0441\u0448\u0442\u0430\u0431\u0430). The article was an editorial that followed on from a series of articles that had criticised certain judges in Rostov-on-Don \u2013 in particular, Ms M., President of the S.District Court. One of the earlier articles had reported allegations that Ms M. had usurped part of the communal space in a block of flats, to the detriment of her neighbours. The article of 27May 2010 addressed a court hearing in that case.","6.On 22 June 2010 Ms M. brought civil proceedings for defamation against the applicant, IPT, the newspaper and another legal entity involved in the newspaper\u2019s activities. She demanded a retraction of the following parts of the article:","\u201cMany a man came to see how this lawless person in a judge\u2019s robe could protect her tainted honour and dignity with the help of her colleagues ...","\u2018Ms M.\u2019s unlawful position\u2019","... I would like to know how the case pending before the Z. Court is related to the defamation claim of Ms M., president of the S. District Court, who has disgraced herself in front of the whole country. ... It is high time that Ms M. begged the ... members of the condominium [that she robbed] for forgiveness [and] apologises for her actions, yet she has taken an \u201coffensive\u201d position, having gained support from other lawless people just like herself. After all that has been done by the judges to discredit our newspaper I am persuaded that people like [name redacted] and Ms M. should not be vested with judicial powers. [Such people] use the [judicial powers] for their personal gain and are a disgrace to the Russian judiciary.\u201d","7.Ms M. subsequently modified her statement of claim, asking that the following extract from another article by the applicant \u2013 entitled \u201cMoscow \u2018Teachers\u2019 of Ethics\u201d (\u041c\u043e\u0441\u043a\u043e\u0432\u0441\u043a\u0438\u0435 \u00ab\u0443\u0447\u0438\u0442\u0435\u043b\u044f\u00bb \u044d\u0442\u0438\u043a\u0438) and published in the newspaper on 15 July 2010 \u2013 be declared defamatory:","\u201cEven Mr O. himself could not say anything of essence. He ... covered up for the President of the S. District Court, Ms M., who had usurped communal space in the block of flats ...\u201d","8.On 4 October 2010 the Oktyabrskiy District Court of Rostov-on-Don (\u201cthe District Court\u201d) allowed Ms M.\u2019s defamation claim in part. It reasoned that the article of 27 May 2010 had contained negative information about Ms M., both as a private individual and as the holder of a public office. The District Court dismissed the claim in so far as it concerned the phrase \u201cMsM.\u2019s unlawful position\u201d, which had served as a subheading, and the phrase \u201cI am persuaded that people like ... and Ms M. should not be vested with judicial powers\u201d, which, in the District Court\u2019s view, had constituted a value judgment. It described the remainder of the impugned extracts from the article as allegations that MsM.\u2019s had behaved unlawfully and engaged in immoral actions \u2013 that is to say as statements of fact. The applicant insisted that the article had contained his personal opinion regarding (i) MsM., which had been supported by an official document confirming that some residents of the block of flats had unlawfully commandeered parts of the communal space in the building by installing partitions and (ii) Mr E., the owner of a flat in the building, who had appeared as a witness before the District Court to testify that MsM. had installed a partition, cutting off other residents\u2019 access to the communal space. The District Court summarily dismissed the applicant\u2019s argument that those allegations had constituted value judgments and observed that (i)the official document confirming the installation of additional partitions had not named Ms M., and (ii) Mr E. had not been a reliable witness, as he had previously complained about Ms M. It accordingly found that the defendants had not submitted proof of the veracity of the impugned statements, and ordered that those statements be retracted. It furthermore ordered that the applicant and IPT each pay Ms M. 500,000 Russian roubles(RUB) in respect of non-pecuniary damage, together with RUB7,500 as compensation for the fees incurred by the claimant in the course of the defamation proceedings \u2013 that is to say a total of RUB1,015,000 (approximately 24,360 euros (EUR)).[1] The District Court did not consider the applicant\u2019s financial situation when making the award but did take into account the fact that the claimant had been a judge, which meant that the allegations of her improper conduct had been particularly cynical.","9.The applicant appealed. On 13 December 2010 the Rostov Regional Court (\u201cthe Regional Court\u201d) dismissed the applicant\u2019s appeal in its substantive part. However, it noted as follows:","\u201c... the amount to be recovered [from the defendant] must be proportionate to the damage caused and should not infringe on the freedom of information or impose an excessive burden on mass media. Therefore, on the basis of Article 361 of the Civil Procedure Code, the appeal tribunal considers it necessary to lower the amount of compensation in respect of non-pecuniary damage [to be paid by] each defendant from RUB500,000 to RUB 100,000.\u201d","The amounts awarded as compensation for the fees to be paid by each defendant remained unchanged. As a result, the applicant, the sole owner of IPT, was held liable to pay the total of RUB 215,000 (RUB 107,500 in his own name and RUB 107,500 in the name of IPT; approximately EUR5,250). At the material time the monthly minimum wage under the domestic law was RUB4,330 (approximately EUR 105).","10.The case material available to the Court contained no information indicating that the judgment in Ms M.\u2019s favour was actually enforced.","11.On 11 July 2008 a judge of the L. District Court of Rostov-on-Don, MsA., resigned from office. Around that time, the investigative authorities began a pre-investigation inquiry into acts of bribery allegedly committed by Ms. A.","12.On 31 July 2008 the newspaper published an article by the applicant entitled \u201cA Judge\u2019s Multiplication Table\u201d (\u0421\u0443\u0434\u0435\u0439\u0441\u043a\u0430\u044f \u0442\u0430\u0431\u043b\u0438\u0446\u0430 \u0443\u043c\u043d\u043e\u0436\u0435\u043d\u0438\u044f) covering, in particular, Ms A.\u2019s resignation. The article read, in so far as relevant, as follows:","\u201cDeputy Head of the L. District Court Ms A. was caught taking a bribe. For almost a year this guardian of the law could not be removed from her office. It has just become known that she has been deprived of her powers and that a criminal case against her will finally be opened.\u201d","13.In September 2008 the newspaper and ProRostov magazine published an article by the applicant entitled \u201cWhat does the bitch have to do with it?\u201d (\u0410 \u0441\u0443\u043a\u0430 \u0437\u0434\u0435\u0441\u044c \u043f\u0440\u0438\u0447\u0435\u043c?), which contained the following passage:","\u201cThe experience of the former judge of the L. District Court Ms A., who was caught taking bribes, has been standard practice among judges for a long time ...\u201d","14.On 16 September 2008 Ms A. lodged a defamation claim against, among others, the applicant and IPT claiming that the two aforementioned articles were defamatory.","15.On 6 November 2008 the District Court allowed Ms A.\u2019s claim in part, ordered a retraction of the impugned statements and made an award in respect of non-pecuniary damage.","16.However, after the applicant appealed, Ms A. withdrew her claim. On 29 December 2008 the Regional Court accepted her refusal to pursue her claim further, quashed the judgment of 6 November 2008 and discontinued the proceedings.","17.On 30 November 2009 it was decided not to initiate criminal proceedings against Ms A. in respect of alleged bribery and forgery of official documents.","18.On 10 June 2010 the newspaper published another article by the applicant entitled \u201cHeirs to the Judiciary\u201d (\u041d\u0430\u0441\u043b\u0435\u0434\u043d\u0438\u043a\u0438 \u0441\u0443\u0434\u0435\u0431\u043d\u043e\u0439 \u0432\u043b\u0430\u0441\u0442\u0438), which read, in so far as relevant, as follows:","\u201cWe covered this issue in the articles in which we shone the spotlight on the former judge of the L. District Court and bribe-taker, Ms A.\u201d","19.On 21 June 2010 Ms A. lodged a defamation claim against the applicant and IPT in respect of the article of 10 June 2010.","20.On 13 July 2010 Ms A. died.","21.On 13 September 2010 the District Court terminated the proceedings in respect of Ms A.\u2019s defamation claim in view of the fact that the claimant had died. It reasoned that her heirs could not pursue the defamation proceedings in MsA.\u2019s stead as the right to reputation was not transferrable.","22.On 9 November 2010 a claim for defamation in relation to the three articles concerning Ms A. were brought in the name of her minor son, MrA., who was born in 1995. The applicant, ITP, and the newspaper\u2019s publishing house, Glas (\u0413\u043b\u0430\u0441) were listed as defendants. Mr A. argued that his late mother had suffered immensely because of the three articles, which had also caused profound suffering to him.","23.The District Court accepted the statement of claim and commenced the proceedings. It initially scheduled a hearing for 14December 2010. Subsequently it rescheduled it twice \u2013 for 27 January and 28February 2011. The applicant informed the court that he could not attend the hearing of 28February 2011 because of a business trip and lodged a request for a postponement.","24.On 28 February 2011 the District Court, having dismissed the applicant\u2019s request for postponement as unsubstantiated, examined the case in his absence. It found in the claimant\u2019s favour. Briefly touching upon the issue of whether Mr A. had had standing to lodge a defamation claim in his own name following his mother\u2019s death, the District Court emphasised that although the decision of 29 December 2008 remained res judicata, Mr A. was entitled to protect his right to reputation and dignity, as \u201cdissemination of untruthful defamatory information regarding the deceased person defames to a certain extent [Ms A.\u2019s] son as well.\u201d The District Court furthermore asserted, without providing its reasons for doing so, that the impugned statements in the three articles constituted statements of facts, not value judgments, and that the applicant had submitted no proof of their veracity. The court did not refer to the fact that the applicant was a journalist or to the context in which the articles had been published, but it did emphasise that the impugned statements had suggested that Ms A. had committed unlawful acts. The District Court ordered that the allegations be retracted and ordered that the applicant and IPT each pay Mr A. RUB500,000 (approximately EUR 12,500) \u2013 that is to say a total of RUB1,000,000 (approximately EUR 25,000); it also ordered that the publishing house pay Mr A. RUB 250,000 (approximately EUR6,250). The District Court did not explain what method it had employed to calculate the award. It noted that it had considered \u201cthe financial situation of each defendant\u201d, but without providing any description of that financial situation. It also referred to Mr A. witnessing his mother\u2019s psychological suffering after the publication of the impugned articles and the negative attention from classmates and their parents that the article must have drawn to him as a pupil at his school.","25.Following an appeal by the defendants, on 5 May 2011 the Regional Court summarily upheld the judgment in full. As regards the amount awarded, it reproduced the District Court\u2019s reasoning word by word.","26.The case material before the Court contained no information regarding whether the judgment in Mr A.\u2019s favour was actually enforced."],"172":["1.The applicant was born in 1982 and lives in Timi\u015foara. He was represented by Ms R. Bercea, a lawyer practising in Timi\u015foara.","2.The Government were represented by their Agent, most recently MsO.F. Ezer, of the Ministry of Foreign Affairs.","3.The facts of the case, as submitted by the parties, may be summarised as follows.","4.The applicant has been insulin-dependent since 1996 when he was first diagnosed with type-1 diabetes, and, on those grounds, has been in receipt of disability benefits.","5.While at home on 30 March 2017, the applicant was feeling ill \u2013 he had already been taking medication for a cold for ten days, but his state was not improving. He phoned his diabetologist, C.H., who advised him to go to the pharmacy and told him what to buy. At about 11a.m. he went to the closest pharmacy, some 200 meters from his home. On arrival he had to sit down as he was feeling weak. He explained his situation to the pharmacist and she called an ambulance to help him.","6.An ambulance arrived at around noon. The paramedic team consisted of two nurses: M.G. and M.E., a medical student who was working as a volunteer, A., and their driver, B. M.G. suspected that the applicant had taken drugs and confronted him. The applicant denied having taken drugs and informed the paramedics about his medical condition. A blood test performed in the ambulance confirmed an imbalance in the applicant\u2019s glucose level. As there was no insulin available in the ambulance, the applicant asked the paramedics to help him walk home to take his treatment. They refused and allegedly told him that they would first take him to hospital to check what prohibited drugs he had taken, and only after that would he receive insulin.","7.The applicant called the emergency number again, but was refused assistance when he told the call centre that an ambulance was already present on the spot.","8.The applicant refused to be taken to the hospital. According to him, the paramedics then closed the ambulance door and restrained him on a stretcher. M.E., who was standing outside the ambulance, called the police for help. In the commotion, the applicant managed to alert his wife.","9.When two police officers arrived, the applicant told them that he needed to take his insulin from his home and reiterated that he was not under the influence of drugs. He asked the police officers to accompany him to his home. They refused, but assured him that he would get his insulin at the hospital. They accompanied the ambulance to the Timi\u015foara municipal hospital (hereinafter \u201cthe TMH\u201d).","10.When he arrived at the TMH, the applicant told O.T., the doctor on duty, that he had diabetes and needed to take his insulin. The ambulance paramedics told the doctor that the applicant was on drugs. O.T. refused to administer the insulin, asking the applicant to take a blood test for prohibited drugs first. The applicant refused to take the test.","11.O.T. decided that the applicant\u2019s state did not qualify for emergency treatment and sent him to the Timi\u015foara psychiatric hospital (hereinafter \u201cthe TPH\u201d). He was taken there by the same ambulance under the same police escort.","12.At the TPH the applicant was again restrained on a stretcher and the medical personnel tried to inject him with medication to calm him down. The applicant refused the medication and eventually managed to untie himself.","13.The applicant telephoned C.H., his diabetologist (see paragraph5 above). When he told her about his situation, she tried to talk to the medical personnel in TPH, but they refused to take the call. C.H. phoned a nurse whom she knew was working in the same medical facility and asked her to explain the applicant\u2019s situation to the medical team attending him.","14.Meanwhile, the applicant\u2019s wife arrived at the hospital. She was informed that the applicant would be transferred to another psychiatric hospital, JH, outside town, where he would receive appropriate treatment for his drug addiction. Together with the nurse sent by the applicant\u2019s diabetologist, she insisted that the applicant\u2019s situation had been caused by his chronic disease and that he was not a drug addict.","15.Eventually, the applicant relented and accepted to be tested for drugs. To that end, he was taken back to the TMH by the same ambulance and police escort.","16.Back in the TMH, O.T. tested the applicant\u2019s blood and confirmed that he had not taken any prohibited drugs. The applicant then received insulin, but in a dose that was different from his prescribed treatment. The blood test also revealed that the applicant was severely anaemic. Because of that, and since the applicant still had a fever, he was advised to go to the hospital for infectious diseases \u201cVBT\u201d. He refused to go by ambulance and left with his wife, stopping at his home to take his insulin, and then went to VBT where he received adequate treatment.","17.The TMH records stated that the applicant had been suffering from hypothermia, headache, bronchial asthma and anaemia, and was insulin\u2011dependent.","18.The TPH records also indicated that the applicant had shown \u201cpsychomotor agitation with clear consciousness, hetero-aggressive verbal and physical behaviour, vindictive and oppositionist\u201d. It stated that \u201cthe patient had been sent back to the [TMH] for medical tests and blood sugar rebalancing\u201d.","19.According to the applicant, he remained under police custody for about six hours.","20.On 4 April 2017 the applicant lodged a criminal complaint against the four members of the ambulance team (see paragraph 6 above) who, in his view, had withheld medical treatment on 30 March 2017, thus putting his life in danger. He described in great detail the sequence of events of 30March 2017 (see paragraphs 5 to 16 above) and explained how his life had been put at risk.","21.On 18 April 2017, police officer E.P. called the applicant to give a statement. According to the applicant, E.P. advised him to withdraw his complaint on the grounds that the acts allegedly committed by the paramedics did not constitute crimes. She also allegedly pointed out that the applicant would not be able to produce evidence to support his assertions. The applicant refused to withdraw his complaint and insisted that the police take his statement.","22.On 16 May 2017 the applicant was fined by the police for verbal abuse against the ambulance service team on 30 March 2017. On 13October2017, following an objection lodged by the applicant, the Timi\u015foara District Court annulled the police report on the grounds that the acts allegedly committed by the applicant had not been proved (netemeinicia faptei). Consequently, the fine was cancelled.","23.The applicant complained about E.P.\u2019s behaviour during the investigation. His complaint was examined together with his initial complaint against the ambulance team (see paragraph 20 above).","24.On 19 June 2017 C.H. gave an out-of-court statement describing the applicant\u2019s medical history and the events of 30 March 2017. According to the applicant, her statement was not taken into account in the investigation. C.H. explained that the applicant attended regular medical check-ups for his disease, was aware of his condition and was able to detect and correct signs of blood sugar imbalance. He followed an intensive treatment scheme, with three doses of insulin during the day and another one in the evening. He had experienced one low-blood-glucose diabetic coma in 1996, two months after his initial diagnosis.","25.C.H. described as follows the events of 30 March 2017:","\u201cOn 30 March 2017, at about noon, while I was seeing patients in my surgery ... Iwas contacted by phone by the patient Mihai Aftanache. I should point out that all my patients have my phone number and I promptly answer, especially to those with type-1 diabetes, as is [the applicant]\u2019s case. He was crying and was extremely agitated. ... He told me that he had been taken by force to the hospital and had not been allowed to take his insulin. I asked him where he was. I heard him over the phone asking: \u2018police officer, police officer, where am I?\u2019. He had to repeat his question several times before someone finally answered. He was eventually told that he was in the [TPH]. He told me that he had a fever and his blood sugar level was 300 mg\/dl and that he was not allowed to take his insulin. I asked to talk on the phone with someone from the medical personnel, even shouted through the phone to make myself heard, but they all refused ...","Desperate, and as I was too far to reach the hospital on time, I called a nurse who works [in the same medical complex] and who is also a patient of mine ... and asked her to go to the psychiatric ward and explain that [the applicant] was diabetic and that most certainly his metabolism was unbalanced and he needed urgent treatment to rebalance his diabetes. Unfortunately [the nurse] ... could only arrive one hour later ...\u201d","26.On 26 October 2017 the applicant was interviewed by the prosecutor\u2019s office. The next day, he returned to the prosecutor\u2019s office with a CD containing the recording of a telephone conversation he had had about the events of 30 March 2017 with one of the paramedics present during those events.","27.The prosecutor also interviewed E.P. (see paragraphs 21 and 23 above) and her office colleague. They both denied that any pressure had been put on the applicant during his interview of 18 April 2017.","28.M.E., one of the nurses of the ambulance team, declared that the applicant had not been abused by anyone. He had been verbally aggressive and agitated, and had refused treatment. Because of his behaviour, the police officers had had to handcuff him. She said that because of his aggressive behaviour and lack of cooperation, the doctor on duty in the TPH had decided to send him for confinement in JH, but that the applicant\u2019s wife, who had meanwhile arrived at the hospital, had opposed the transfer. M.E. also alleged that throughout the incident, the applicant had refused to state his identity.","29.M.G., the other nurse of the ambulance team, declared that when the ambulance had arrived at the pharmacy they had found the applicant, who had told them that he was diabetic and was not feeling well. The team had dispensed medical care and had taken the decision to take the applicant to the TMH. At that moment, he had become uncooperative, and tried to stand up from the stretcher with the intention of hitting M.G. in the head. M.E. had then called the police for support. He claimed that the applicant had been aggressive in the hospitals as well.","30.A. and B., the other two members of the ambulance team (see paragraph6 above), were also interviewed by the prosecutor. Their statements were similar to those given by M.E. and M.G.","31.The prosecutor\u2019s office also received the TPH records (see paragraph18 above) and the police report on the events of 30March2017, whereby it had been recorded that the applicant \u201c[had been] aggressive and [had] refused a medical examination\u201d.","32.On 22 May 2018 the prosecutor\u2019s office decided to end the investigation (clasarea sesiz\u0103rii). In so far as E.P. was concerned, the prosecutor considered that the evidence did not support the applicant\u2019s allegations. The prosecutor\u2019s office reached the same conclusion concerning the allegations against the paramedics. The reasoning in this respect reads as follows:","\u201cIn the light of the above [reference to the description of the witness statements and medical evidence], the allegations about the ambulance team cannot be accepted, as they are not supported by evidence.\u201d","33.On 9 July 2018, following an objection lodged by the applicant, that decision was upheld by the prosecutor-in-chief of the same prosecutor\u2019s office. The applicant was also ordered to pay 50 Romanian lei (RON, approximately 10 euros (EUR) at that time) representing costs.","34.The applicant lodged a complaint with the Timi\u015foara District Court against the decision of the prosecutor\u2019s office of 9 July 2018 (see paragraph33 above), arguing that the prosecutor had failed to investigate the case properly. In particular, no relevant evidence had been collected and the decision had been based exclusively on the statements made by the persons under investigation. He also complained that the medical evidence had been disregarded, even though it had proved without doubt that because of his medical condition at that time, he could not have been violent with the paramedics or the police. He appended to his request the statement made by his diabetologist (see paragraph 25 above). The applicant reiterated that, in his view, he had been the victim of aggravated deprivation of liberty and of attempted murder, the latter insofar as his life had been put in danger by the refusal to administer emergency medical treatment.","35.On 23 August 2018 the pre-trial judge of the Timi\u015foara District Court upheld the prosecutor\u2019s decision, holding that the evidence presented by the prosecutor had not supported the applicant\u2019s allegations. The applicant was also ordered to pay RON 50 (approximately EUR 10 at that time) to the State, representing costs, and RON 500 (approximately EUR100 at that time) to each of the five persons he had named in his complaint: the four members of the ambulance team and the police officer he had accused, representing their lawyers\u2019 fees.","36.On 29 November 2018 the Timi\u015foara Court of Appeal declared inadmissible an appeal lodged by the applicant as the decision in question was final and not amenable to appeal. The applicant was ordered to pay RON100 (approximately EUR 20 at that time) to the State, representing costs, and RON 500 (approximately EUR 100) to each of the five accused persons, representing lawyer\u2019s fees.","37.On 22 May 2017 the applicant lodged a complaint with the Directorate for Public Health of County Timi\u015f. He reiterated his allegations of professional misconduct and violence at the hands of the medical professionals who had received him on 30 March 2017.","38.On 20 June 2017 the Directorate for Public Health informed the applicant that the medical records issued by the hospitals had not confirmed his allegations. It also informed him that his allegations concerning medical negligence had been forwarded to the Commission for Monitoring and Professional Competence.","39.On 3 July 2017 the Commission informed the applicant that he was required to pay RON 9,000 (approximately EUR 1,900 at that time) for experts\u2019 fees. The fee was due within five working days.","40.The applicant could not afford to pay the fee, which exceeded his monthly income at the time (RON 375, approximately EUR 80, from disability benefits)."],"173":["1. The applicant, Ms Marie Ringler, is an Austrian national who was born in 1975 and lives in Vienna. She was represented before the Court by Ms M. Windhager, a lawyer practising in Vienna.","2. The Austrian Government (\u201cthe Government\u201d) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.","The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. On 1 January 2008 Federal Law no. 114\/2007 containing an amendment to the Security Police Act ( Sicherheitspolizeigesetz; hereinafter: \u201cSPA\u201d) entered into force. Among other measures, its section 53(3a) and (3b) extended the powers of the police authorities to request personal data of telephone\/mobile phone and internet users from telecommunications providers (see paragraphs 20-21 below).","5. The applicant was a member of the Vienna Regional Parliament and lodged a complaint under Article 140 of the Federal Constitution ( Bundesverfassungsgesetz ) with the Constitutional Court requesting it to review the constitutionality of section 53(3a) and (3b) of the SPA.","6. She did not allege that any of these measures had in fact been ordered or implemented against her, nor that she had been affected by measures directed against other persons. However, she contended that she hosted a website and was as such considered a provider of telecommunications services and might therefore be required to give information under 53(3a) of the SPA. Moreover, as an internet and mobile phone user, she might be subjected to measures under section 53(3a) and (3b) at any point in time and without having any effective remedy at her disposal.","7. On 1 July 2009 the Constitutional Court rejected the applicant\u2019s complaint as inadmissible. It noted that only persons with whose rights a law interfered directly, without being applied through a decision of a court or an administrative authority, had the right to lodge a complaint under Article 140 of the Federal Constitution.","8. In so far as the applicant alleged that she was required to give certain information as a telecommunications provider, the Constitutional Court held that, although section 53(3a) of the SPA did not contain any new obligations to retain data, it contained an obligation to provide certain types of information. It accepted that in so far as section 53(3a) obliged the applicant, as a provider of telecommunications services, to give information, it interfered with her rights. However, if such information were actually requested she had a remedy, namely a complaint to the Independent Administrative Panel under section 88 of the SPA at her disposal. She was therefore not directly affected.","9. In so far as she had asserted that she was a mobile phone and internet user and was therefore likely to be affected by section 53(3a) and (3b) of the SPA, the Constitutional Court referred to its decision of 1 July 2009 (G 147,148\/08-14) in a similar case.","10. In that case also, the applicants had not alleged that the police authorities had requested any information about them or taken any measures against them under the contested provisions. They had merely asserted that they were likely to be affected by these provisions as they were mobile phone and internet users and exercised certain professions. In the Constitutional Court\u2019s view this was not sufficient to show that they were directly affected by the said provisions.","11. Referring to the case-law of the European Court of Human Rights ( Klass and Others v. Germany, 6 September 1978, Series A no. 28, and Weber and Saravia v. Germany (dec.), no. 54934\/00, ECHR 2006 \u2011 XI), the Constitutional Court observed that section 53(3a) and (3b) of the SPA did not regulate secret surveillance of communications but merely empowered the police authorities to obtain specific information about telephone or internet users from providers of telecommunications services. Since the circumstances at issue were therefore distinct from those in the Court\u2019s case-law, the applicants\u2019 complaint in respect of these provisions was inadmissible on that ground alone.","12. If the applicants had reason to believe that their data had been requested or processed by the police authorities on the basis of the contested provisions, they had remedies under the Data Protection Act 2000 at their disposal, in particular the right to obtain information and the right to request the destruction of data under sections 26 and 27 of that Act.","13. Finally, the Constitutional Court observed, inter alia, that a system of safeguards was in place: pursuant to section 91c of the SPA the police authorities had to inform the Legal Protection Commissioner ( Rechtsschutzbeauftragter ) of requests for information about telephone or internet users under section 53(3a) and (3b); in cases in which the Legal Protection Commissioner considered that an individual\u2019s right had been violated by the use of personal data he was entitled to inform the person concerned or, where that was not possible pursuant to section 26(2) of the Data Protection Act 2000, he or she was entitled to lodge a complaint with the Data Protection Commission.","Relevant domestic law","(a) The Security Police Act (\u201cSPA\u201d)","(i) General tasks of the police authorities","14. The SPA regulates the tasks and powers of the police authorities for providing assistance in case of immediate threat to life, health, security or property of persons ( erste allgemeine Hilfeleistungspflicht ) and for maintaining public peace, order and security ( Aufrechterhaltung der \u00f6ffentlichen Ruhe, Ordnung und Sicherheit ) (section 3).","15. In the context of the task of maintaining public security, the police authorities have, inter alia, to assess and avert dangers emanating from criminal organisations or from intentional criminal offences (section 21(1) read in conjunction with section 16). Further tasks include the protection of the constitutional institutions of the Republic, the protection of representatives of foreign states or international organisations, the protection of vulnerable persons, in particular of persons who may give information about criminal organisations or about the commission of criminal offences (section 22). A further task is the search for wanted or helpless persons (section 24).","16. Introduced by a later amendment to the SPA, the police authorities also have the task of protecting facilities for providing basic public utilities such as energy, communications, water and so on (section 22).","(ii) Police authorities","17. In 2010, the police authorities were the Federal Minister for the Interior, the Regional Security Authorities ( Sicherheitsdirektionen ), the subordinated Federal Police Authorities ( Bundespolizeidirektionen ) and District Administrative Authorities ( Bezirksverwaltungsbeh\u00f6rden ).","18. After reorganisation measures in 2012, the police authorities are now the Federal Minister for the Interior, the Regional Police Authorities ( Landespolizeidirektionen ) and the subordinated District Administrative Authorities.","(b) Powers to request data from telecommunications providers","19. Sections 51 to 54 of the SPA regulate the police authorities\u2019 powers to collect, process and transmit personal data ( personenbezogene Daten ). Section 53(3a) and (3b) which entered into force on 1 January 2008 regulate specifically the power to request personal data of telephone\/mobile phone and internet users from telecommunications providers.","20. Section 53(3a) allows the police authorities to request the providers to disclose the name, address and number of a specific telephone line, to disclose the IP-address relating to a specific message and the time of its transmission and to disclose the name and address of the user to whom an IP-address was attributed at a specific point in time.","21. Section 53(3b) allows the police authorities to request from telecommunications providers the location data and the international mobile phone user code (IMSI) of the mobile phone or other terminal carried by that person and to use technical devices to locate it.","22. The law, as in force at the time of the Constitutional Court\u2019s decision of 1 July 2009, required for requests under section 53(3a) specific facts that gave reason to believe that there was a situation of danger and that the data was required for the fulfilment of the police authorities\u2019 tasks. For requests under Section 53(3b) specific facts were required that gave reason to believe that there was an immediate danger for the life or health of a person.","23. Further amendments to section 53 were introduced on 1 April 2012, on 1 July 2014, on 1 July 2016 and on 25 May 2018: inter alia, requests under section 53(3a) to disclose the name, address and number of a specific telephone line no longer require a situation of danger; for requests under section 53(3a) concerning IP-addresses, the prerequisites of having a \u2018situation of danger\u2019 and \u2018required for the fulfilment of their tasks\u2019 were replaced by the wording \u201cto avert a situation of danger for the life, health and liberty of a person in the context of the general obligation to provide assistance ( erste allgemeine Hilfeleistungspflicht ); to avert an intentional criminal offence ( gef\u00e4hrlicher Angriff ) or to avert a criminal association ( kriminelle Vereinigung )\u201d; requests under section 53(3b) are additionally possible if there is an immediate danger for the liberty of a person and it is allowed to locate the mobile phone or terminal also of the companion of the person who is in danger, and the person posing a threat.","(c) Legal Protection","(i) General principles for the protection of personal data","24. Both, the SPA and the Data Protection Act 2000, which was replaced by the new Data Protection Act on 25 May 2018, contain safeguard and remedy provisions. While the Data Protection Act 2000 implemented the EU Data Protection Directive 95\/46\/EC, the new Data Protection Act 2018 followed the new General Data Protection Regulation (EU) 2016\/679. In the context of the security police, it also implemented the Directive (EU) 2016\/680 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data. The provisions of the Data Protection Act apply unless explicitly provided otherwise (section 51(2) of the SPA).","25. The police authorities are responsible for the lawfulness of requests for personal data under section 53 (3a) and (3b) of the SPA. They may only use personal data in so far as is necessary for the fulfilment of their tasks and have to respect the general principle of proportionality (sections 29 and 52 of the SPA).","(ii) Legal Protection Commissioner","26. The Legal Protection Commissioner ( Rechtsschutzbeauftragter ) was created by an amendment to the Federal Constitution in 1997 as an independent organ for the protection of human rights in the security police. He is not bound by any instructions (section 91a of the SPA).","27. The police authorities must generally give the Legal Protection Commissioner access to their documents and recordings and provide him with any information necessary for the fulfilment of his tasks (section 91d of the SPA).","28. The Legal Protection Commissioner supervises, inter alia, the police authorities\u2019 implementation of data requests and their compliance with the rules on correction and deletion of data (section 91d of the SPA).","(iii) Data Protection Authority (former: Data Protection Commission)","29. The former Data Protection Commission consisted of six members who had legal experience in data protection. They were appointed for a term of five years by the Federal President of the Republic of Austria on the basis of a proposal by the Federal Government and were independent in the performance of their duties (section 36 of the Data Protection Act 2000).","30. An amendment to the Data Protection Act 2014 replaced the Data Protection Commission with the Data Protection Authority, which is also independent in the performance of its duties. The head of the Data Protection Authority and the deputy are appointed for a term of five years by the Federal President of the Republic of Austria on the basis of a proposal by the Federal Government. Re \u2011 appointment is permitted. They must, inter alia, have specific knowledge of data protection law and at least five years\u2019 experience in the legal profession (section 20 of the Data Protection Act).","31. Like section 40 (4) of the Data Protection Act 2000, its main task is to ensure compliance with the rules for data protection and to rectify infringements of these rules (sections 31 to 34 of the Data Protection Act; see also Article 28 of the EU Data Protection Directive 95\/46\/EC and Article 51 of the General Data Protection Regulation (EU) 2016\/679).","(iv) Notification","32. The SPA and the Data Protection Act 2000\/new Data Protection Act contain rules on notification.","33. Pursuant to section 24 of the Data Protection Act 2000, as in force on 1 July 2009, anyone who requested the processing of personal data, including the police authorities, had the duty to provide information for the data subject ( Betroffener ). The new Data Protection Act introduced, in particular, the duty for the police authorities to notify the data subject additionally on data protection rights and remedies (section 43 of the Data Protection Act).","34. However, like section 24 of the Data Protection Act 2000, section 43 of the new Data Protection Act does not require a notification if data is obtained by transmission from another entity and the processing is provided for by law. Notifications may also be delayed, restricted or omitted to the extent necessary, and as long as it proves necessary and proportionate, to avoid prejudicing the prevention and combating of crime; to protect public and national security; to protect the institutions of the Republic; to protect the military facilities and to protect the rights and freedoms of others.","35. Pursuant to section 91c of the SPA, the police authorities must notify the Legal Protection Commissioner, inter alia, on requests made under section 53(3a) of the SPA, which concerned IP-addresses (see paragraph 20 above) and about requests made under section 53(3b) of the SPA (see paragraph 21 above).","36. If the Legal Protection Commissioner perceives that a right of a data subject, who has no knowledge of the data collection, has been violated by the use of personal data, he must notify him or her. If a notification is not possible pursuant to the exceptions of the Data Protection Act (see paragraph 34 above), he must lodge a complaint with the Data Protection Authority (section 91d of the SPA). The obligation was introduced on 1 April 2012 by an amendment to the SPA and replaced the initial wording that the Legal Protection Commissioner was \u2018entitled\u2019 to notify and lodge a complaint.","37. On 1 April 2012 an obligation was also introduced for the police authorities to notify the data subject if retained data ( Vorratsdaten ) were required to answer a request under section 53(3a) and (3b) of the SPA (section 53(3c) of the SPA).","(v) Information rights","38. Pursuant to section 26 of the Data Protection Act 2000, as in force on 1 July 2009, everyone had the right to obtain information (nature of the data, its source, transmission to third persons, the purpose and legal basis of the processing) from anyone who requested the processing of personal data, including the police authorities. The new Data Protection Act introduced, in particular, a duty for the police authorities to inform the data subject also on the period of retention, on the rights for rectification, restrictions or deletion and on the data protection rights and remedies (section 44 of the Data Protection Act).","39. However, like section 26 of the Data Protection Act 2000, section 44 of the new Data Protection Act restricts the information rights by referring to section 43 of the Data Protection Act (see paragraph 34 above). In the event of such restrictions, the authorities have to inform the data subject about the restriction and to provide him or her with the reasons for it. If no data exists or if the disclosure of the restriction would jeopardise the measure, the police authorities can respond with a standard reply (\u201c no data, which is subject to the duty of disclosure and concerning the person requesting the information, is used\u201d [\u201cKeine der Auskunftspflicht unterliegenden Daten \u00fcber den Auskunftswerber werden verwendet\u201d] ). The reasons for the restrictions must be documented and made available to the Data Protection Authority.","(vi) Rectification, restriction or deletion","40. Like section 27 of the Data Protection Act 2000, the new Data Protection Act contains rules on rectification, restriction or deletion of data which is no longer needed or was unlawfully processed (section 45 of the Data Protection Act and section 63 of the SPA).","(vii) Remedies","41. Like sections 30 and 31 of the Data Protection Act 2000, the new Data Protection Act gives everyone who considers that the processing of personal data has infringed his data protection rights the right to lodge a complaint with the Data Protection Authority (sections 32(1 no. 4), 34(5) and 24 of the Data Protection Act).","42. The right to complain applies also to restrictions on notifications (see paragraph 34 above) and to applicants who did not receive the requested information (see paragraph 39 above) or whose request for rectification, restriction or deletion was refused (sections 32(1) and 42(8) of the Data Protection Act).","43. If a data subject has no knowledge of a violation of his rights, the Legal Protection Commissioner is obliged to lodge such a complaint (see paragraph 36 above).","44. Pursuant to section 40 (2) of the Data Protection Act 2000 a data subject had a right to appeal against a decision of the Data Protection Commission to the Administrative Court ( Verwaltungsgerichtshof ). The new Data Protection Act contains the right to complain to the Federal Administrative Court ( Bundesverwaltungsgericht ) against a decision of the Data Protection Authority or its failure to act in time (sections 34 (5), 27 and 42 (9) of the Data Protection Act).","45. Under Article 140 \u00a7 1 of the Austrian Federal Constitution, every person can challenge the constitutionality of a law if he\/she alleges that the law has infringed his\/her rights and become immediately effective for him\/her without a court\u00b4s or administrative authority\u00b4s decision. In its well \u2011 established case-law, the Constitutional Court requires \u201cdirect interference\u201d by the contested law with the person\u00b4s rights and the unavailability of remedies against its application."],"174":["6.The applicant was born in 1942 and lives in Tirana.","7.During the communist period in Albania, households typically lived in State-owned premises, let as dwellings, in accordance with residential tenancy agreements which were entered into between tenants and the then State-owned Housing Maintenance Company (Nd\u00ebrmarrja Komunale Banesa - \u201cthe Housing Company\u201d). Privately owned dwellings which had passed into State ownership through legislation on nationalisation were allocated by the then Government to households - the members of which, as a rule, worked for the State at the time - on the basis of tenancy agreements.","8.In 1992, following the end of communist rule, the Privatisation Act was enacted, pursuant to which State-owned dwellings, save those which had formerly been privately owned property, would be subject to privatisation. The relevant provisions of the Privatisation Act are set out in paragraphs 21-24 below.","9.In 1993 the Property Restitution and Compensation Act (\u201cthe Property Act\u201d) was enacted, pursuant to which former owners or their heirs were entitled to claim restitution of expropriated or nationalised properties as well as compensation in lieu of restitution. However, flats in those properties were commonly occupied by tenants who had entered into a tenancy agreement with the State. The relevant provisions of the Property Act are set out in paragraphs 41-46 below.","10.The applicant\u2019s father owned two houses located in Tirana, each of which was made up of four rooms, a dining room and the appurtenant courtyard. On an unspecified date in the 1950s both properties were nationalised by the State, which were subsequently tenanted by households.","11.Following the entry into force of the Property Act in 1993, on an unspecified date - most likely in 1994 or 1995 - the applicant\u2019s father lodged a claim with the Tirana Commission on Property Restitution and Compensation (\u201cthe Commission\u201d) to have the houses restored.","12.It transpires that by a decision of 27 September 1995, no copy of which has been submitted by the parties, the Commission recognised the applicant\u2019s father\u2019s property rights over the houses.","13.On 15August 1997, following the death of the applicant\u2019s father, his and his siblings\u2019 title to the property was entered into the property register.","14.On an unspecified date, since the applicant could not regain possession of one of the houses as it was occupied by tenants, he lodged a civil action with the Tirana District Court (\u201cthe District Court\u201d) seeking their eviction. In his view, the tenants did not possess any property rights to the house, they had never paid him any rent and they were not legally homeless (i pastreh\u00eb). He argued that, being the lawful owner of the house, its occupation by the tenants had directly impinged upon his property rights, the protection of which was guaranteed by the Constitution and the Convention.","15.On 17 March 2003 the Tirana District Court upheld the applicant\u2019s action. It found that one of the tenants, namely J.D., did not possess a lawful occupancy authorisation to continue occupying the applicant\u2019s property. As regards the other tenants, the court stated that two of them, namely B.S. and M.S., had been living abroad for at least five years and one of them, namely F.S., had received housing from the State. The court ordered all tenants to vacate the house.","16.The tenants lodged an appeal with the Tirana Court of Appeal (\u201cthe Court of Appeal\u201d), which on 23 April 2004 partially quashed the District Court\u2019s decision insofar as it related to J.D., B.S. and M.S. The Court of Appeal held that those tenants had been occupying the house since 1980s. As regards J.D., the court found that he was legally homeless and had gained the right to a tenancy since 1993. As regards B.S. and M.S., the court held that, because they had been living abroad as economic migrants for the last two years and had not established any permanent residence there, they had not abandoned their dwelling in Albania. The Court of Appeal, however, upheld the District Court\u2019s decision insofar as it concerned F.S. and ordered that tenant to vacate a room located on the ground floor.","17.The applicant lodged an appeal with the Supreme Court contending that J.D. had not had a lawful occupancy authorisation, on the basis of which he could enter into a tenancy agreement. He further argued that B.S. and M.S. had been living abroad for ten years.","18.On 19 July 2005 the Supreme Court upheld the Court of Appeal\u2019s decision. The Supreme Court recognised the applicant\u2019s undisputed property rights over the house. However, as regards J.D., the Supreme Court found that, as he was legally homeless, he had been lawfully occupying one of the flats on the basis of an occupancy authorisation since 1986. He had further obtained a final court decision in 1993, which remained unenforced, entitling him to the continuation of the tenancy. It further held that, even though B.S. and M.S. were living abroad, they were lawfully occupying the flat on the ground of being legally homeless.","19.The Supreme Court further stated that, having regard to section 14 of the Property Act 1993 which determined the relationship between former owners and tenants (see paragraph 42 below), there existed a legal possibility for the parties to regulate their relationship (pal\u00ebt nd\u00ebrgjygj\u00ebse kan\u00eb hap\u00ebsira ligjore p\u00ebr rregullimin e marr\u00ebdh\u00ebnieve t\u00eb tyre).","20.On 20 May 2010 the applicant informed the Court that the tenants living in his property, without specifying their names, had died and that he had taken possession of the house.","21.The Privatisation Act was intended to privatise State-owned dwellings and to create a free market for housing, thus enabling occupying tenants to become owners. Households living in State-owned dwellings, pursuant to a tenancy agreement, could purchase those dwellings and become owners subject to the completion of a set of actions, such as payment of the full privatisation price and registration of the property at the relevant land registry office.","22.Section 16 provided that homeless people were entitled to receive loans from financial institutions to resolve their housing needs. The interest payments would be borne by the State through the National Housing Entity (\u201cNHA\u201d \u2013 Enti Komb\u00ebtar i Banesave).","23.Section 21 provided that State-owned dwellings which had previously been privately owned property would not be subject to privatisation under the Privatisation Act. As tenants would continue to pay rent, section 19 stated that rents for State-owned dwellings, which had formerly been privately owned property, would be liberalised from December 1995. Section 21\/1, as introduced in 1994, stated that State-owned dwellings which had formerly been privately owned property, in respect of which no restitution claim had been made in application of the Property Act 1993, would continue to be administered and maintained by the NHA.","24.Under section 25 the State would provide tenants living in dwellings belonging to former owners who were to vacate the dwelling as a result of their restitution to the former owner with rental housing to be constructed in the future.","25.The Privatisation Act, the operation of which was frequently extended at least until 31 December 1995, was repealed by the entry into force of the Social Programmes Act, as amended in 2007 (see paragraph 37 below).","Constitutional Court decision no. 11\/1993","26.Following a request for constitutional review of the Privatisation Act on the ground that it discriminated against tenants occupying properties which would be restored to former owners, filed with the Constitutional Court by 265 tenants occupying former privately owned properties, on 27August 1993 the Constitutional Court rejected the request as ill-founded. It held, inter alia, as follows:","\u201cThe [Constitutional] Court observes that [the Privatisation Act] and [the Property Act] govern the problems of the privatisation of State-owned dwellings and of the restitution of properties to former owners or compensation for them.","Under both laws, tenants of State-owned dwellings have the right to take them into private ownership in compliance with the conditions prescribed by the law. In order to resolve their housing needs, tenants of dwellings that have been restored to former owners have been granted the right to obtain loans from financial institutions, the interest payments on which ... are to be borne by the State, as expressly provided for in section 16 of the Act, or, alternatively, are to be accommodated as tenants in housing units to be constructed by the State in accordance with section 25 of the said Act.","The different solutions to the housing problems that concern these categories of tenants do not arise from any type of discrimination between them, but are a result of the different status they enjoy: the first are tenants of State-owned dwellings, the second are tenants of dwellings that have been restored to former owners.","The complainants\u2019 request that they were discriminated against [on the basis of their belonging to the category of tenants occupying former privately owned properties] on account of the Privatisation Act and the Property Act is ill-founded.\u201d","27.According to section 1, the Act was intended to determine the State obligations for homeless households (that is, households rendered homeless as a result of the operation of the Privatisation Act) through the grant of a housing allowance and loans. It also aimed to give them the opportunity to benefit from the free property market.","28.Under section 2, homeless households were entitled to receive a housing allowance (p\u00ebrfitim) from the State. Under section 6 the allowance could be used to purchase dwellings from the State or private persons, to purchase a plot of land for the construction of a dwelling by the State or private persons and to pay contractual rent for the use of a State or private dwelling. Upon depletion of the allowance the household\u2019s homeless status would be revoked. Moreover, homeless households were entitled to a loan from the then Savings Bank (Banka e Kursimeve) for the construction or purchase of a dwelling, as provided for in sections 7 and 8.","29.The amended section 2 further stipulated that homeless households living in dwellings that belonged to former owners would be treated as a priority category. The State would secure them housing through the NHA. The privatisation of such housing units would be carried out in accordance with the Privatisation Act, with the sale price to be linked to the inflation index (duke i shtuar tarif\u00ebs indeksin e korrigjimit t\u00eb cmimeve).","30.Section 11 introduced the notion of liberalisation of rents that homeless tenants living in dwellings which belonged to former owners would be obliged to pay. It established the ratio of the rent payable by the tenant and by the State. Tenants would have to pay a rent similar to that paid for State dwellings, estimated in accordance with the size of the property they occupied. The State was obliged to pay the remaining rent amount, estimated in accordance with rents paid for State dwellings and the size of the property. This section was subsequently repealed by the Constitutional Court in 1997 (see paragraph 35 below).","31.Following the repeal of section 11 by the Constitutional Court, section 10 of the Act, as amended in 2000, stated that until the resolution of the housing problem, homeless citizens who lived in dwellings belonging to former owners would pay rent on the basis of the rates that they were paying at the time of entry into force of the Property Act 1993.","32.The Contribution to Homeless Households Act was repealed by the entry into force of the Social Programmes Act in 2004 (see paragraph 37 below).","(a) Council of Minister\u2019s decision no. 250 of 16 April 1996 on procedures and priorities relating to the application of the Contribution, to Homeless Households Act, as amended (\u201cCMD no. 250\/1996)","33.Households living in privately owned dwellings belonging to former owners were the first category of homeless households which would benefit from the housing allowance provided for in the Contribution to Homeless Households Act, the housing problem of which would be dealt with by order of priority as stipulated in section 6. Section 2.1 of the decision provided that as a result of the operation of the Property Act 1993, the previous tenancy agreements entered into between tenants and the State were as of that point deemed concluded between tenants and the former owners on the basis of documentation to be submitted by the latter. The local government authorities would draw up a list of such households.","34.Section 14 provided that existing tenancy agreements between tenants and former owners would be renewed with the assistance of the local government authorities. Such agreements would be of a time-limited duration, which was until the tenant had completely used up the subsidy provided by the State. According to section 15, tenants living in dwellings belonging to former owners, which were within the housing standards (jo mbi normat e strehimit n\u00eb fuqi), would have to pay three-fifths of the rent while the State would pay the remainder.","(b) Constitutional Court decision no. 5\/1997","35.Following a request for constitutional review of the Contribution to Homeless Households Act, filed with the Constitutional Court by the Association of Tenants of State-owned dwellings which were formerly privately owned property (Shoqata e Qiramarr\u00ebsve n\u00eb Sht\u00ebpit\u00eb Shtet\u00ebrore Ish-Pron\u00eb Private), on 27 February 1997 the Constitutional Court decided to repeal section 11 of the said Act. Having examined the requirement set down by CMD no. 250\/1996 that tenants would have to pay three-fifths of the rent amount to former owners, the Constitutional Court found that the ratio of the rent payable by tenants would be almost the equivalent of an old age pension. In view of the fact that the majority of tenants living in dwellings belonging to former owners had retired and benefited from the old age pension or received financial aid, the court had made a determination that they would be obliged to use the entire pension or the financial aid towards the payment of the rent, rendering its allocation devoid of purpose and their subsequent accommodation untenable. Consequently, it would be impracticable to apply the said Act, which would have adverse effect on the interests of tenants and former owners.","36.The Constitutional Court directed that a new provision should be adopted, which would regulate the obligation of tenants occupying former privately owned dwellings to pay rent to former owners within their financial capacity, until the resolution of the housing problem. The Constitutional Court further recommended that a new provision should provide for the indexation of the housing allowance to inflation","37.The Social Programmes Act, which in 2004 repealed the Contribution to Homeless Households Act, and in 2007 the Privatisation Act, was intended to provide possibilities for affordable and suitable housing having due regard to the financial capacity of households which needed housing. The said Act provided for three types of social-housing programmes: (i) programmes for the provision of social rental housing; (ii)programmes for the provision of low-cost housing; and (iii) programmes for the provision of construction land for development and housing purposes (programe t\u00eb pajisjes s\u00eb truallit me infrastruktur\u00eb) (section 3). Households which had not benefited from the application of the Privatisation Act, provided that they met the requirements prescribed by the Social Programmes Act, would be treated as a matter of priority in accordance with section 5.","38.The Social Programmes Act was repealed by the entry into force of the Social Housing Act (Ligji p\u00ebr Strehimin Social) in November 2018.","39.Article 41 of the Constitution, which entered into force in 1998, provides that the right of private property is protected by law. The law may provide for expropriation or limitations in the exercise of a property right only in the public interest.","40.Article 131 (f) of the Constitution provided at the material time that the Constitutional Court would hear final complaints by individuals alleging a violation of their constitutional right to a fair hearing, after all legal remedies for the protection of that right had been exhausted.","(a) Property Act 1993 (Law no. 7698 of 15 April 1993, as amended)","41.According to the Property Act 1993 former owners or their legal heirs had the right to claim their ownership over the original immovable property which had been expropriated, nationalised or confiscated by the communist regime. Following the determination of ownership, they were entitled either to have the original immovable property restored or to be awarded compensation in lieu in one of the forms provided for by law. However, pursuant to the Property Act, the authorities\u2019 decision to restore the property to former owners did not affect the pre-existing tenancy agreements which entitled the tenants to continue occupying those properties.","42.The relevant provision of the Property Act 1993, as referred to in the Supreme Court\u2019s decision of 9 July 2005 in paragraph 19 above, provided as follows:","Section 14","\u201cThe relationship between tenants and former owners who become owners\/landlords pursuant to this [Act] shall be governed by [the Privatisation Act].","If ... the former owner provides the tenant with a dwelling within the same [local government] area, consisting of a surface area [to be determined] in accordance with the housing standards in force at the time of the adoption of this Act, the tenant shall be obliged to vacate the dwelling.","The State is obliged to resolve the housing needs of current tenants in accordance with the current housing standards, by giving priority to households with limited financial means.","At their request former owners may be compensated in one of the forms determined by this [Act].\u201d","(b) Property Act 2004 (Law no. 9235 of 29 July 2004, as amended)","43.In so far as relevant, the Property Act 2004, which repealed the Property Act 1993 and entered into force on 15 September 2004, provided:","Section 9","\u201c1.Properties which are the property of former owners shall be vacated by tenant(s) within three years. The tenants shall continue to pay the rent set by the Council of Ministers for two years after the entry into force of this Act. The Council of Ministers shall be responsible for housing homeless tenants by providing a dwelling at a low rent, offering a low-interest loan or providing a dwelling the rent of which is borne by the State.\u201d","Constitutional Court decision no. 26\/2005","44.Following a request for constitutional review of section 9 (1) of the said Act, filed with the Constitutional Court by the Association of Tenants of State-owned dwellings which were formerly privately owned property, on 2 November 2005 the Constitutional Court struck down that provision as being unconstitutional. The court attached importance to the fact that the provision had worsened the status of tenants compared to the provisions that had existed prior to the entry into force of the Property Act 2004. It found that the amendment to the legislation had not respected the principle of legal certainty. It concluded that a limitation on tenants\u2019 right to housing could not be justified by the public interest in upholding former owners\u2019 property rights. The decision, in so far as relevant, reads:","\u201cUntil the entry into force of the above provision, tenants of State-owned dwellings which were formerly private property were entitled to certain rights ... in particular: a fixed rent at 1993 levels until a resolution is found to the housing problem; the provision of housing by the State through its National Housing Agency, in compliance with the criteria set forth in [the Privatisation Act 1992]. On the basis of these provisions, the State, firstly, undertook to provide housing by means of privatisation, in compliance with the criteria that were used for the privatisation of housing in 1992, and, secondly, guaranteed that rents would remain unchanged until the resolution of the [housing] problem.","Section 9(1) [of the Property Act 2004] makes significant changes to tenants\u2019 rights. While, under the previous provisions, the State undertook to resolve the housing problem by enabling tenants to become owners on the basis of criteria that applied to the rest of the population, the impugned provision does not expressly put that obligation on the State. The section envisages the provision of housing through low-rent dwellings, low-interest loans or [the payment of] rents ... by the State.","Moreover, in contrast with the previous provision, which \u2018froze\u2019 rents until a resolution for the housing problem had been found, the impugned provision expressly envisages the payment of such \u2018frozen\u2019 rents for the first two years after the Act\u2019s entry into force, implying that rents would be liberalised on the expiry of that time-limit.","The new Act contains other provisions which seriously worsen the status of tenants. While the previous Act provided that dwellings would be vacated when their tenants had been provided with permanent housing, the impugned provision arbitrarily, and without giving any express assurances, envisages that tenants are to vacate dwellings within three years.","It is clear that section 9(1) [of the Property Act 2004] significantly impinges upon some of the rights that tenants had acquired under the previous legislation ... .","The Constitutional Court also observes that section 9(1) breaches ... the principle of legal certainty ...","Legal certainty presumes, inter alia, that citizens should have trust in the State and the irreversibility (pandryshueshm\u00ebrin\u00eb) of the law. That trust is related to the fact that citizens should not have to worry continuously about the ever-changing nature and consequences of legal norms which impinge upon and worsen a previously settled status.","... This principle [of legal certainty] cannot prevail in every instance. Thus, if it happens that the legal regulation of a relationship is directly influenced by the public interest, it is the latter which prevails over the principle of legal certainty.","In the instant case, the amendment to the law in favour of a certain section of the population cannot be justified by an essential public interest. It is true that the amended provision favours property owners; on the other hand, however, it discriminates against another group (even though small in number), impinging upon tenants\u2019 basic right to life and the provision of housing. Denying tenants their rights to become owners and ending their tenancy without guaranteeing another dwelling cannot be justified on any public interest ground.\u201d","(c) Property Act 2006","45.Following the Constitutional Court decision no. 26\/2005, in 2006 section 9 of the 2004 Act was amended to read as follows:","Section 9","\u201c1.Properties which are the property of former owners and which were leased to tenants by the State before the entry into force of [Privations Act 1992], which are used for housing needs, shall be transferred to the possession of the former owner(s) when one of the following conditions is met:","a.the housing needs of the tenants have been met in any other lawful way;","b.the former owner provides the tenants with a dwelling that has a surface area no smaller than the dwelling they already occupy and which is in an approximately similar condition and within the same local-government area, until such time as the tenants\u2019 housing needs are met in one of the other ways provided by this section.","c.the tenants conclude a loan agreement with a financial institution, in accordance with the ... [the Social Programmes Act 2004];","d.the tenants benefit from housing or a plot of land as provided for by ... [the Social Programmes Act 2004]\u201d","...","4.Homeless persons who are tenants in dwellings which are the property of former owners and who have not concluded a loan agreement in accordance with sub-paragraph (c) of the first paragraph of this section, or have not yet been provided with housing in accordance with subparagraphs (a), (c) and (d) of the first paragraph of this section, shall lose their right to occupy lawfully the dwelling by 31 December 2008. They shall be offered social housing programmes, in accordance with section 4 of the Social Programmes Act. The former owner shall be entitled to take lawful possession of the dwelling under his ownership.","5.The rent for dwellings occupied by homeless persons as provided for in paragraph 1 of this section shall be indexed ... to annual price and salary increases, and its aim is to cover the expenses of the owner for the maintenance and good administration of the dwelling ...\u201d","Constitutional Court decision no. 11\/2007","46.Following a request for constitutional review of the amended section9 on the ground that it was in breach of the principle of acquired rights and the findings of the Constitutional Court in its decision no.26\/2005, filed with the Constitutional Court by the Association of Tenants of State-owned dwellings which were formerly privately owned property, on 4 April 2007 the Constitutional Court repealed the amended section for the same reasons set out in in its decision no. 26\/2005. It directed that new provisions be adopted to fill the legal vacuum.","(d) Normative Act 2012","47.On 1 August 2012 the Government introduced a normative act for the vacation of former owners\u2019 properties which continued to be occupied by tenants. The normative act was subsequently endorsed by parliament on 13 September 2012.","48.The deadline to vacate voluntarily former owners\u2019 properties was set as 1 November 2012. In the event of a failure to vacate a property voluntarily within the prescribed time-limit, the NHA, upon written notification of the former owner, would issue an eviction order, which would be considered an executable decision within the meaning of the Code of Civil Procedure. The NHA would then ask the District Court to issue an enforcement writ for the vacation of the flat. Section 3 bars a stay of execution of the enforcement writ.","49.Details of the Normative Act, including the unsuccessful constitutional review proceedings brought against it before the Constitutional Court, have been described in this Court\u2019s decision in the case of Bakiu and Others v. Albania (dec.), nos. 43928\/13 and 16 other applications, 10 April 2018.","50.In decisions no. 36\/2002 and no. 531\/2002, the Supreme Court dismissed the landlords\u2019 civil actions concerning the payment of free-market (liberalised) rents by tenants occupying dwellings that had been returned to the landlords, in their capacity as former owners, and remitted the cases for examination before the Court of Appeal. The Supreme Court reasoned that section 11 of the Contribution to Homeless Households Act had been repealed by the Constitutional Court decision no. 5\/1997. It further stated that its section 10, as amended in 2000, had provided that tenants should pay a rent on the basis of the rates that they had been paying at the time of the entry into force of the Property Act 1993 (also see paragraph 31 above).","51.In decision no. 44 of 24 February 2009 the Supreme Court, relying on the Constitutional Court\u2019s decisions no. 26\/2005 and no. 11\/2007, dismissed a landlord\u2019s civil claim for the vacation of a property occupied by tenants, insofar as the tenants\u2019 housing problem had not been resolved by the authorities. Consequently, the Supreme Court rejected the landlord\u2019s claim for the payment of a free-market rent by the tenants."],"175":["1.The applicant was born in 1969 and lives in Moscow. He was represented by Mr D. Gaynutdinov, a lawyer admitted to practice in Russia.","2.The Government were represented initially by Mr A. Fedorov, head of the office of the Representative of the Russian Federation to the European Court of Human Rights, and then by Mr M. Galperin, the Representative.","3.The facts of the case, as submitted by the parties, may be summarised as follows.","4.The applicant is the executive director of the Association of Electronic Publishers, a non-commercial partnership, and co-founder of the Association of Internet Users, a non-governmental organisation. He is the owner and administrator of the website Electronic Publishing News (http:\/\/www.digital-books.ru), which features a compilation of news, articles and reviews about electronic publishing.","5.The website was set up 2008 and was hosted by DreamHost, a provider of a shared web-hosting service based in the United States. The service hosts multiple websites which have the same numerical network address (\u201cInternet protocol or IP address\u201d) but different domain names. When a user\u2019s browser requests a website from the server, it includes the requested domain name as part of the request. The server uses this information to determine which website it would show the user.","6.In late December 2012, users from various Russian regions reported to the applicant that access to his website was blocked by their Internet service providers by reference to \u201ca decision by the competent Russian authority\u201d. He checked the register of websites black-listed by the Russian telecoms regulator (Roskomnadzor) and discovered that the IP address of his website had been put on the blocking list pursuant to a decision of the Federal Drug Control Service dated 19 December 2012. The decision was intended to block access to another website, rastaman.tales.ru \u2013 a collection of cannabis-themed folk stories \u201cThe Rastaman Tales\u201d[1] \u2013 which was also hosted by DreamHost and had the same IPaddress as the applicant\u2019s website. According to the Government, on 22March 2013 the blocking of the IP address ceased; copies of the blocking and unblocking decisions have not been made available to the applicant or the Court.","7.The applicant complained to the Taganskiy District Court in Moscow that the decision to block the entire IP address had had the effect of blocking access to his website which did not contain any illegal information.","8.On 19 June 2013 the District Court rejected the applicant\u2019s complaint, holding that Roskomnadzor had acted within its competence, in accordance with the applicable laws and for the purpose of protecting children from harmful information relating to the use of drugs. It did not assess the impact of the contested measure on the applicant\u2019s website.","9.The applicant appealed, relying in particular on the Court\u2019s findings in the case of Ahmet Y\u0131ld\u0131r\u0131m v. Turkey (no. 3111\/10, ECHR 2012), which concerned the indiscriminate blocking of a hosting service.","10.On 12 September 2013 the Moscow City Court dismissed the appeal in a summary fashion, finding that the principle of proportionality had been respected because Roskomnadzor had lawfully blocked access to illegal information. It did not address the effect of the blocking decision on the applicant\u2019s website.","11.On 17 July 2014 the Constitutional Court refused to consider an application lodged by the applicant for a constitutional review of section 15.1 of the Information Act. The court held:","\u201cAs regards the owners of websites that do not contain any prohibited information, who had seen access to their websites blocked as a consequence of having their network address added to the register, what affected their right to impart information was not, in essence, the decision to add the network address to the Integrated Register but the failure on the part of the hosting service provider to act diligently. Accordingly, their right to impart information must be asserted, first and foremost, in their legal relationship with the hosting service provider.\u201d"],"176":["1. The applicant, Mr Carl J\u00f3hann Lilliendahl, is an Icelandic national, who was born in 1946 and lives in Reykjavik. He was represented before the Court by Mr \u00c1sgeir \u00de\u00f3r \u00c1rnason, a lawyer practising in Reykjavik.","The circumstances of the case","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","3. On 15 April 2015, the municipal council of the town of Hafnarfj\u00f6r\u00f0ur, Iceland, approved a proposal to strengthen education and counselling in elementary and secondary schools on matters concerning those who identify themselves as lesbian, gay, bisexual or transgender. This was to be done in cooperation with the national LGBT association, Samt\u00f6kin \u2018 78.","4. The decision was reported in the news and led to substantial public discussion, inter alia on the radio station \u00da.S., where listeners could phone in and express their opinions on the decision of the municipal council. In a subsequent online news article, one of the initiators of the proposal, \u00d3.S.\u00d3., criticised the radio show for what he described as allowing people to phone in and express \u201cclear prejudice and hate speech\u201d without criticism from the show \u2019 s host. \u00d3.S.\u00d3. furthermore expressed his wish to come on the show and answer criticism of the municipal council \u2019 s decision.","5. The applicant was one of those who took part in the public discussion. He wrote comments below the above-mentioned article on 21 April 2015, stating the following:","We listeners of [\u00da.S.] have no interest in any [expletive] explanation of this kynvilla [derogatory word for homosexuality, literally \u2018 sexual deviation \u2019 ] from [\u00d3.S.\u00d3.]. This is disgusting. To indoctrinate children with how kynvillingar [literally \u2018 sexual deviants \u2019 ] e\u00f0la sig [ \u2018 copulate \u2019, primarily used for animals] in bed. [\u00d3.S.\u00d3.] can therefore stay at home, rather than intrude upon [\u00da.S.]. How disgusting.","6. Subsequently, Samt\u00f6kin \u2018 78 reported the applicant \u2019 s comments to the Reykjav\u00edk Metropolitan Police, claiming it violated Article 233 (a) of the General Penal Code No. 19\/1940 (see paragraph 20 below). The case was dismissed by a police prosecutor on 8 September 2015, but that decision was annulled on 6 November 2015 by the Director of Public Prosecution, who instructed the Metropolitan Police to carry out an investigation.","7. The subsequent investigation led to the applicant \u2019 s indictment on 8 November 2016. According to the indictment, his comments, quoted above, were considered to constitute publicly threatening, mocking, defaming and denigrating a group of persons on the basis of their sexual orientation and gender identity, in violation of Article 233 (a) of the General Penal Code.","8. By a judgment of 28 April 2017, the District Court of Reykjav\u00edk acquitted the applicant. Citing the applicant \u2019 s freedom of expression, the District Court considered that the comments did not reach the threshold required for them to fall within the scope of Article 233 (a) and that it had not been shown that the applicant had had the intent of violating that provision.","9. The judgment was appealed against by the Director of Public Prosecution to the Supreme Court of Iceland.","10. By a judgment of 14 December 2017, the Supreme Court overturned the District Court \u2019 s judgment and convicted the applicant.","11. The Supreme Court \u2019 s judgment first discussed the origins of Article 233 (a) of the General Penal Code, noting that it had originally been introduced following Iceland \u2019 s ratification of the United Nations \u2019 Convention on the Elimination of All Forms of Racial Discrimination and subsequently amended inter alia to extend its protection to sexual orientation and gender identity. These amendments had been made with reference to Nordic developments, to the Additional Protocol to the Council of Europe \u2019 s Convention on Cybercrime concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, to the Recommendation of the Committee of Ministers to Member States on measures to combat discrimination on grounds of sexual orientation or gender identity, and to the Parliamentary Assembly \u2019 s Resolution on Discrimination on the basis of sexual orientation and gender identity.","12. The Supreme Court then discussed the charges against the applicant, noting at the outset that although the applicant enjoyed freedom of expression under the Constitution of Iceland and the European Convention on Human Rights, that freedom was subject to some limitations. Such limitations could notably be those necessary to protect the rights of others, including the right of homosexual persons to respect for private life and to enjoy human rights equally to others, irrespective of their sexual orientation. Establishing that Article 233 (a) of the General Penal Code constituted one such limitation of the freedom of expression clearly established by law, the Supreme Court furthermore reasoned that the limitation established by the provision was clearly necessary, in general, in order to safeguard the rights of social groups which had historically been subjected to discrimination. It noted that the protection afforded to such groups by Article 233 (a) was compatible with the national democratic tradition, reflected in Article 65 of the Constitution, of not discriminating against persons based on their personal characteristics or elements of their personal lives, and that it was in line with international legal instruments and declarations to protect such groups against discrimination by way of penalization.","13. The Supreme Court went on to discuss the substance of the provision, and stated:","\u201cArticle 233 (a) \u2019 s description of the conduct which it penalizes is worded in a clear and comprehensible manner. The provision does not mention the concept of \u2018 hate speech \u2019, although it is used in the indictment at the beginning of the description of the charges against the [applicant], as well as in the aforementioned preparatory works of the Bill which became Act No. 13\/2014 [amending Article 233 (a), see paragraph 19] and the international recommendations and resolutions concerning legislation in this area. This concept can be seen as the common denominator for the mocking, defaming, denigrating or threatening behaviour which the provision criminalizes, and simultaneously as a threshold of the requisite severity of the expression necessary for it to fall under the provision. The expression must thus convey such disgust, antipathy, contempt or condemnation that it can be considered to amount to hate speech towards the subject of the expression. This substance of the provision must be considered clear and foreseeable to the public.\u201d","14. Turning to the applicant \u2019 s comments, the Supreme Court noted the following:","\u201cConsidering the discussion in which the [applicant] made the comment, it is evident that it referred to homosexual men and homosexuality as such, in relation to the idea of introducing education on homosexuality in elementary and secondary schools. Although the words kynvilla [sexual deviation] and kynvillingar [sexual deviants] may in the past have been considered appropriate, by some, to describe homosexuality and homosexuals, it is beyond any doubt that today, these words constitute prejudicial slander and disparagement of those against whom they are employed. This was aggravated by the applicant \u2019 s expression of disgust at such conduct and orientation. His conduct thus falls under Article 233 (a) of the General Penal Code.\u201d","15. The Supreme Court added that the comments had been made publicly, fulfilling the public forum requirement of Article 233 (a). On the subject of the applicant \u2019 s intent to commit the crime, the Supreme Court stated:","\u201cAccording to the wording of Article 233 (a) of the General Penal Code, cf. Article 18, the provision entails a requirement of intent. Such intent must apply to the action of expressing oneself with words, symbols, pictures or in another manner, but whether such expression constitutes mocking, defaming, denigrating or threatening a person for their nationality, colour, race, religion, sexual orientation or gender identity must be assessed in an objective manner. In that assessment, account should not be taken of the motives which the person in question claims were behind their expression. Thus, the [applicant \u2019 s] conduct must be considered intentional, as he has not claimed that the comment was made negligently or by accident.\u201d","16. Having established that the applicant \u2019 s comments fell under Article 233 (a) of the General Penal Code, the Supreme Court went on to assess whether it was necessary to restrict the applicant \u2019 s freedom of expression under Article 73 of the Constitution. It noted that according to established case-law, restrictions on that freedom were only justified if they addressed a pressing social need and that caution should be employed when accepting any such restrictions; speech which was merely insulting or hurtful did not reach the applicable threshold. The Supreme Court went on to note that the applicant \u2019 s comments had been made in the context of a public discussion on the important topic of the raising and schooling of children, and that the discussion had already become heated and vituperative to some extent. Although the comments had not been directly aimed at children, seeing as the discussion had taken place in a public forum and concerned the interests of youth, it was to be expected that children might take part in the discussion and read the applicant \u2019 s comments. Considering that the decision which was the subject of the discussion had merely intended for Samt\u00f6kin \u2018 78 to act as an advisor to those in charge of writing the educational material and providing the counselling, the applicant \u2019 s comments had had little connection with the subject of the discussion. The Supreme Court then stated:","\u201cThe [applicant \u2019 s] comment was serious, severely hurtful and prejudicial, none of which was necessary for him to express his opposition to such education. Within such a discussion, a reasonable purpose for the [applicant \u2019 s] comment can hardly be discerned.\u201d","17. The Supreme Court thus found that the private life interests protected by Article 71 of the Constitution and Article 233 (a) of the General Penal Code outweighed the applicant \u2019 s freedom of expression in the circumstances of the case and that curbing that freedom was both justified and necessary in order to counteract the sort of prejudice, hatred and contempt against certain social groups which such hate speech could promote. It convicted the applicant and, referring to his age and clean criminal record, sentenced him to a fine of 100,000 Icelandic kr\u00f3nur (ISK, approximately 800 euros (EUR) at the time).","18. One of the three Supreme Court judges sitting on the panel in the applicant \u2019 s case dissented. In his opinion, the applicant \u2019 s comments did not reach the threshold of Article 233 (a) of the General Penal Code. The minority reasoned that although the comments had been derogatory, they had constituted neither a call for violence nor accusations of criminal behaviour. Considering that the comments had been part of a public discussion and not particularly forced upon anyone, the minority found that the applicant \u2019 s comments should be protected by the freedom of expression and his acquittal confirmed.","Relevant domestic law","19. The relevant provisions of the Icelandic Constitution ( Stj\u00f3rnarskr\u00e1 l\u00fd\u00f0veldisins \u00cdslands ) read as follows:","Article 65","\u201c Everyone shall be equal before the law and enjoy human rights irrespective of sex, religion, opinion, national origin, race, colour, property, birth or other status. Men and women shall enjoy equal rights in all respects.\u201d","Article 71","\u201cEveryone shall enjoy freedom from interference with privacy, home, and family life.","... Notwithstanding the provisions of the first paragraph above, freedom from interference with privacy, home and family life may be otherwise limited by statutory provisions if this is urgently necessary for the protection of the rights of others.\u201d","Article 73","\u201cEveryone has the right to freedom of opinion and belief. Everyone shall be free to express his thoughts, but shall also be liable to answer for them in court. The law may never provide for censorship or other similar limitations to freedom of expression. Freedom of expression may only be restricted by law in the interests of public order or the security of the State, for the protection of health or morals, or for the protection of the rights or reputation of others, if such restrictions are deemed necessary and in agreement with democratic traditions.\u201d","20. Article 233 (a) of the General Penal Code No. 19\/1940 ( Almenn hegningarl\u00f6g ), which forms a part of Chapter XXV entitled \u201cDefamation of character and violations of privacy\u201d, reads as follows:","\u201cAnyone who publicly mocks, defames, denigrates or threatens a person or group of persons by comments or expressions of another nature, for example by means of pictures or symbols, for their nationality, colour, race, religion, sexual orientation or gender identity, or disseminates such materials, shall be fined or imprisoned for up to 2 years.\u201d","According to the preparatory works of the provision, it was introduced due to Iceland \u2019 s ratification of the United Nation \u2019 s International Convention on the Elimination of All Forms of Racial Discrimination. It was later amended also to include sexual orientation and gender identity. This was done inter alia with reference to the Additional Protocol to the Council of Europe \u2019 s Convention on Cybercrime concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, to the Recommendation of the Committee of Ministers to Member States on measures to combat discrimination on grounds of sexual orientation or gender identity, and to the Parliamentary Assembly \u2019 s Resolution on Discrimination on the basis of sexual orientation and gender identity.","Relevant international material","21. The Recommendation adopted by the Council of Europe \u2019 s Committee of Ministers on 31 March 2010 (CM\/Rec(2010)5) on measures to combat discrimination on grounds of sexual orientation or gender identity provides, in so far as relevant:","\u201c6. Member states should take appropriate measures to combat all forms of expression, including in the media and on the Internet, which may be reasonably understood as likely to produce the effect of inciting, spreading or promoting hatred or other forms of discrimination against lesbian, gay, bisexual and transgender persons. Such \u201chate speech\u201d should be prohibited and publicly disavowed whenever it occurs. All measures should respect the fundamental right to freedom of expression in accordance with Article 10 of the Convention and the case law of the Court.\u201d","22. The Resolution adopted by the Council of Europe \u2019 s Parliamentary Assembly on 29 April 2010 (Resolution 1728 (2010)) on discrimination on the basis of sexual orientation and gender identity provides, in so far as relevant:","\u201c7. Hate speech by certain political, religious and other civil society leaders, and hate speech in the media and on the Internet are also of particular concern. The Assembly stresses that it is the paramount duty of all public authorities not only to protect the rights enshrined in human rights instruments in a practical and effective manner, but also to refrain from speech likely to legitimise and fuel discrimination or hatred based on intolerance. The boundary between hate speech inciting to crime and freedom of expression is to be determined in accordance with the case law of the European Court of Human Rights.","...","16. Consequently, the Assembly calls on member states to address these issues and in particular to:","...","16.4. condemn hate speech and discriminatory statements and effectively protect LGBT people from such statements while respecting the right to freedom of expression, in accordance with the European Convention on Human Rights and the case law of the European Court of Human Rights; ...\u201d"],"177":["1.For details about the applicants, see the table in the annex. The applicants were represented by Dr E. Borg Costanzi and Dr P. Borg Costanzi, lawyers practising in Valletta.","2.The Government were represented by their Agent, Dr Peter Grech, Attorney General, and subsequently by their Agent Dr Victoria Butti\u0121ie\u0121, State Attorney.","3.The facts of the case, as submitted by the parties, may be summarised as follows.","4.By means of a Governor\u2019s Declaration published in the Government Gazette in 1961, the applicants\u2019 agricultural land in Safi (as well as other land not belonging to the applicants) was declared to be needed for a public purpose under the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta (\u201cthe Ordinance\u201d).","5.The Government took physical possession of the land in 1993 to construct a school (with its grounds) and roads.","6.A \u201cnotice to treat\u201d was sent to the applicants on 14 January 2003, describing the land, measuring 665 square metres (\u201csq.m.\u201d), as touching another property at its south-west side and a road on the east side. Compensation was offered on the basis of its status as agricultural land in 1961 i.e. 1,490Maltese liri (MTL), approximately 3,471 euros (EUR). According to the valuation report of 5 December 2002, the land then formed part of the extension of the grounds to the school and had previously formed part of a larger surface and was therefore agricultural land in terms of the Ordinance.","7.The amount of compensation was refused by the applicants in February 2003, who considered that given the lapse of time they should be compensated on the basis of the value in 2003, when they considered it to be developable land since it was close to a school, and in view of its potential, was worth MTL 120,000, approximately EUR 279,525. Thus, in the same year, proceedings were initiated before the Land Arbitration Board (\u201cLAB\u201d), which, by a decision of 15October 2009, established the compensation as being EUR20,134 plus interest according to law, on the basis of a report by the experts, who visited the site, which designated the land as agricultural according to the Ordinance. The LAB noted that, the two experts having been unanimous, it was bound to adopt their findings according to Section 25 (5) of the Ordinance. It thus ordered the parties to proceed to conclude the contract transferring ownership.","8.During these proceedings the applicants had argued, based on documents they submitted to the LAB, that property in the vicinity had been expropriated at much higher values. In particular, in 2007 and 2003 respectively, A.Z. had been paid EUR 104,356 for land measuring 186sq.m.; and family Z. had been paid EUR 64,757 (plus EUR 71,125.09 in interest calculated at 5 % from 4 February 1981) for only part of a piece of land measuring 615 sq.m.","9.The parties appealed before the Court of Appeal (consisting of three judges). The applicants complained primarily that the land had been valued as being agricultural, and secondly that, in any event, the price per square metre as calculated by the architect had been erroneous. They noted that the LAB had simply rubberstamped the experts\u2019 report, which had not explained why the land was deemed to be agricultural and not developable. Indeed, the LAB had been bound by law to follow the experts, thus denying the owners an effective review by a court. Moreover, no consideration had been given to the passage of time when determining compensation, thus breaching the applicants\u2019 property rights.","10.According to the Court of Appeal, the applicants, in particular, complained that the experts had not substantiated why the land was considered to be agricultural. In that regard the applicants argued that, given that another piece of land expropriated by the same declaration had been considered as being developable and that their land fell within a development scheme, both under the old law and the new one, the land had to be considered as developable land. They considered that the compensation awarded was ridiculous and that, even assuming it had to be considered as agricultural land, it had to attract higher compensation in the light of other factors such as the locality and the price of adjacent property. Furthermore, it had not been fair that compensation proceedings had started only forty years later and yet they were being compensated on the basis of a declaration of 1961, because in their case (unlike others) no new declaration (accompanied by a new valuation) had been issued in breach of their rights under Article 6 of the Convention in conjunction with Article 1 of ProtocolNo. 1. They asked the Court of Appeal to revoke the valuation of the experts subject to, if necessary, a declaration as to the characterisation of the land and the criteria to be used; to quash the LAB\u2019s decision and refer it back, and in the alternative, to vary the LAB\u2019s decision augmenting the compensation awarded.","11.During these proceedings a request by the applicants for a constitutional reference in relation to claims under Article 1 of ProtocolNo.1 to the Convention, alone and in conjunction with Article 14 (concerning the compensation) and Article6 (length of proceedings), was rejected by the Court of Appeal by means of an interlocutory decision of 6May 2013. The Court of Appeal considered that the claims were frivolous and vexatious as the applicants had not yet exhausted ordinary remedies, namely the proceedings on appeal where their claims on the merits could still be accepted.","12.By a judgment of 29November 2013 the Court of Appeal (in the main proceedings) rejected the applicants\u2019 appeal and confirmed the first\u2011instance decision. It noted that the LAB\u2019s decision being dated 15October 2009 the applicable procedural law was the one before the amendments of 2009 (Act XXI of 2009 of 1 December 2009 amending various laws related to civil matters - in particular revoking the limitation on appeals which could previously be lodged solely on points of law); thus, that the applicants could only appeal on points of law (Section 25 (7) of the Ordinance [as stood before 2009]); and that the experts having been unanimous in their valuation, the Chairman of the LAB was bound by law to follow their findings.","13.The Court of Appeal considered that, in so far as this was a point of law, the lack of any reasoning by the experts as to the land being considered as agricultural did not vitiate the LAB\u2019s decision, since the experts had been unanimous and the LAB had to follow their findings in accordance with the law. The Court of Appeal noted that the experts had stated in their report that the land was agricultural \u201caccording to the Ordinance\u201d, and in the minutes of their site visit they had also stated that \u201cthey took account of the locality and considered other factors\u201d. The Court of Appeal, noting that the law left such an evaluation in the hands of the experts, considered that it could not be said that their unanimous evaluation was arbitrary.","14.The Court of Appeal also considered that it could not deal with the pleas in relation to the lack of a proper evaluation by the experts; the higher compensation awarded to others; and the fact that they were being compensated at the value of 1961 despite proceedings being undertaken forty years later, as these were not pleas on points of law. However, on the last mentioned plea, it found it opportune to note that the Government having taken possession of the land at the time of the issuance of the declaration (sic.), it was understandable that compensation had to be calculated on the basis of its value then.","15.On 25 May 2013 the applicants instituted constitutional redress proceedings complaining under Article1 of Protocol No.1 to the Convention, alone and in conjunction with Article14 and Article6 of the Convention, about the lack of access to court\/length of proceedings (1961\u20112013). They argued that they had been severely prejudiced by the delay in payment of compensation, as a result of which the land had become developable when the notice to treat was issued. Yet they had been paid the price of the land (as agricultural) in 1961, while they considered that they should have been paid the price of the land in 2003 \u2013 the date of the notice to treat. In fact, adjacent land subject to the same circumstances had been revalued in the light of development potential, but not the applicants\u2019, they had thus also been discriminated against (on political grounds).","16.During the proceedings the architect\u2019s report of 5 December 2002, as well as the report of the LAB experts (see paragraphs 6 and 7 above), were submitted to the court and a Government employee also gave evidence. He considered that, as evident from the aerial photographs of 1957, the land was agricultural land, as it did not satisfy the requirements to be classified as developable land under Section 18 of the Ordinance in force at the date of the expropriation. In particular it had no frontage on a road, was not in a built up zone and it was not situated at less than 91.5metres of a built up zone.","17.By a judgment of 10October 2016 the Civil Court (First Hall) in its constitutional competence found a violation of all the provisions relied on and awarded pecuniary damage in respect of the violation of Article 1 of Protocol No. 1 in the amount of EUR 270,000 (based on a valuation dated 5December 2014, by an expert appointed by the Commissioner of Land, of the land as it stood in 2013, plus interest from 2014 to date of contract). The Civil Court (First Hall) in its constitutional competence considered that the applicants had to be paid compensation on the basis of its designation as building land, as had been the case for others who had similar properties in the area and who had been subject to the same measure. It also awarded EUR10,000 in non\u2011pecuniary damage for the breaches of Articles6 and 14 in conjunction with Article 1 of Protocol No 1. The applicants were to pay no costs.","18.In particular it found that the delay to issue the notice to treat \u2013 during which time the applicants had no access to court to pursue compensation proceedings \u2013 had breached the applicants\u2019 rights under Article 6 of the Convention, as of 1987 i.e. the date of the introduction of individual petition in Malta. It also found that the compensation offered was not adequate and if paid, together with interest, for the expropriation, would breach the applicants\u2019 property rights. In particular the court considered that in 2002 when the architect drew up the report for the notice to treat to be issued, the land was no longer agricultural but had become developable, satisfying the conditions stipulated in the law. It was therefore not just for the architect and later the LAB experts to award the value on the basis of it being agricultural land.","19.In relation to the complaint concerning discrimination the court considered that the applicants were not in the same situation as another family (A.Z.) who had been paid compensation in 2007 for land (measuring 187 sq.m.) which had been taken much later than 1961. The same could not be said about the situation of family Z. \u2013 in relation to a parcel of land (measuring 615 sq.m.) situated near that of the applicants and which had also been taken in 1961 at a time when it was agricultural land \u2013 whereby, despite being in an analogous situation, family Z. had been paid, in 2003, EUR 64,757 for 615 sq.m. of land while the applicant had been offered, in the same year, EUR 3,470 for 655 sq.m. (later valued at EUR 20,134 by the LAB). There had been a substantial difference in the values offered and no reasonable justification for such a difference in treatment.","20.The parties appealed to the Constitutional Court, consisting of the same three judges who had decided the applicants\u2019 civil case on appeal. The applicants challenged the judges and requested their withdrawal, relying on Article 734 (1) (d) of the Code of Organisation and Civil Procedure (see paragraph 30 below).","21.By an interlocutory decree of 20February 2017 the applicants\u2019 challenge was rejected by the same judges on the basis that the first case had concerned civil issues while the current one concerned constitutional issues.","22.By a judgment of 26 January 2018 the Constitutional Court confirmed the violation of Article 6 and awarded EUR 7,500 in non\u2011pecuniary compensation in this respect, but revoked the rest of the first\u2011instance judgment finding no violation of Article 14 (as the comparator was not in a similar situation \u2013 the latter\u2019s property having been classified as building land for the purposes of compensation) and no violation of Article 1 of Protocol No.1, considering, however, that the compensation should be augmented to EUR26,093 based on the guidelines set out in Schembri and Others v.Malta ((just satisfaction), no.42583\/06, 28September 2010) to which had to be added interest,as provided by domestic law, on the date of transfer which was to be not later than three months from date of judgment.","23.In relation to the Article 14 complaint the Constitutional Court considered that the first-instance court should not have acted as a third instance court reversing the finding by the experts (who had considered that the land was agricultural) and therefore finding that the situations of the two cases were analogous. The applicants had not challenged the law by means of which their land was deemed to be agricultural, thus the LAB\u2019s decision to that effect was binding. This was the case irrespective of the new valuation dated 5 December 2014 by the expert appointed by the Commissioner of Land. Moreover, the mere fact that the applicants\u2019 land was in the same area, did not mean that both could be developed.","24.As to Article 1 of Protocol No. 1 the Constitutional Court noted that the applicants were not contesting the lawfulness of, or the public interest behind, the measure but its proportionality. The Constitutional Court disagreed with the applicants that they were to be paid the value of the land as developable since it had changed designation over the years, noting that it had not been contested that the land was agricultural in nature in 1961, nor had there been a challenge to the applicable law, the applicants\u2019 argument being limited to the assessment by the experts which was final (res judicata following the LAB\u2019s decision confirmed by the Court of Appeal). It considered that the European Court of Human Rights\u2019 case-law made it clear that the value to be taken into account was that at the time of the taking of the land which had to be updated at the date of payment, and interest should be paid as from the date of taking, in line with the methodology provided by the Ordinance.","25.The applicants were made to pay half the costs of the entire proceedings, in view of their failed claims.","26.Following this judgment the applicants wrote to the authorities to receive the payment due, however only an acknowledgment was received and to date of submissions (2020) the applicants had not yet received any compensation.","27.The Land Acquisition (Public Purposes) Ordinance (Chapter 88 of the Laws of Malta), in so far as relevant, reads as follows:","Section 3","\u201cThe President of Malta may by declaration signed by him declare any land to be required for a public purpose.\u201d","28.Prior to the amendments introduced in 2002, the Land Acquisition (Public Purposes) Ordinance provided that:","Section 12(1)","\u201c...the competent authority shall give to the owner a notice ... by means of a judicial act, stating the amount of compensation, as shown in a valuation to be attached to the notice to treat.\u201d","Section 13(1)","\u201cThe amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner (...).\u201d","Section 17","\u201cAny land which is not a building site shall be valued for the purpose of determining the compensation payable in the case of compulsory acquisition as rural land or as wasteland, as the case may be.\u201d","Section 18","\u201c(1) Land shall be deemed to be a building site for the purposes of this Ordinance if it has a frontage on an existing street and is situated within a built up area or, subject to sub section (2) of this section, within a distance of not more than ninety-one and a half metres of a built up area, measured along the axis of the street.","(2) In determining whether land is a building-site by reason of the fact that it is situated within a distance of not more than ninety-one and one half meters of a built up area regard shall be had to the probable immediate expansion of the built up area in the direction of the land in question.","(3) Land falling within the definition of subsection (1) or (2) of this section shall be deemed to be a building site to a maximum depth of twenty-five metres.\u201d","Section 17 (as amended in 2006)","\u201cAny land which is not a building site shall be valued for the purpose of determining the compensation payable in the case of compulsory acquisition as rural land or as wasteland, as the case may be;","Provided that in determining such compensation, consideration shall be given to the value of any structures existing thereon and whether such structures are covered by a permit according to law.\u201d","Section 18 (as amended in 2006)","\u201c(1) Land shall be deemed to be a building site if it falls within the limits of a building scheme or as indicated and approved for development in a Structure Plan or subsidiary plan which has been adopted for the time being in force under any law relating to planning.","(2) In determining the compensation due for a building site, consideration shall be given to the use or development that can be made thereof or thereon in accordance with the provisions of subarticle (1).\u201d","Section 18A (introduced in 2006) concerning the valuation of land expropriated prior to 2003","\u201cNotwithstanding the provisions of this or any other law, the value of any land \u2013","(a) still in the course of acquisition on the 1st January 2005","(b) in respect of which a declaration under article 3 was issued before the 5th March 2003, and","(c) in respect of which a notice to treat was not issued before the 1st January 2005 under the provisions of this Ordinance as in force before the date mentioned in this paragraph,","shall, saving any interests due until payment is made under sub-article (3) of article12 of this Ordinance, be its value as on the 1st January 2005.\u201d","Section 22","\u201cIf the owner shall by a judicial act decline to accept the offer made by the competent authority, the matter shall be brought before the Board by an application to be made by the competent authority, and the Board shall give all necessary orders or directions in accordance with the provisions of this Ordinance.\u201d","29.The amendments introduced in 2002 by means of Act XI of 2002, provided, in so far as relevant, that compensation should no longer be paid on the basis of the date of the \u2018notice to treat\u2019 but on the basis of the date of the \u2018Presidential Declaration\u2019. Its transitory provisions also provided that interest would be paid as from the date of the Presidential Declaration and:","\u201cFor the purposes of determining whether land is to be valued as a building site, agricultural or rural land or waste land for the purposes of this sub-article the relevant date shall be the date when the original Declaration was issued by the President before the coming into force of this article.\u201d","30.Article 734 of the Code of Organisation and Civil Procedure concerning the grounds for challenge or abstention of a judge, reads as follows:","\u201c(1) A judge may be challenged or abstain from sitting in a cause -","(a) if he is related by consanguinity or affinity in a direct line to any of the parties;","(b) if he is related by consanguinity in the degree of brother, uncle or nephew, grand-uncle or grandnephew or cousin, to any of the parties, or if he is related by affinity in the degree of brother, uncle, or nephew, to any of the parties;","(c) if he is the tutor, curator, or presumptive heir of any of the parties; if he is or has been the agent of any of the parties to the suit; if he is the administrator of any establishment or partnership involved in the suit, or if any of the parties is his presumptive heir;","(d) (i) if he had given advice, pleaded or written on the cause or on any other matter connected therewith or dependant thereon;","(ii) if he had previously taken cognizance of the cause as a judge or as an arbitrator:","Provided that this shall not apply to any decision delivered by the judge which did not definitely dispose of the merits in issue or to any judgment of non-suit of the plaintiff;","(iii) if he has made any disbursement in respect of the cause;","(iv) if he has given evidence or if any of the parties proposes to call him as a witness;","(e) if he, or his spouse, is directly or indirectly interested in the event of the suit;","(f) if the advocate or legal procurator pleading before a judge is the son or daughter, spouse or ascendant of the said judge;","(g) if the advocate or legal procurator pleading before a judge is the brother or sister of the said judge;","(h) if the judge or his spouse has a case pending against any of the parties to the suit of happens to be his creditor or debtor in such manner as may reasonably give rise to suspicion of a direct or indirect interest that may influence the outcome of the case.","(2) A judge may be challenged or abstain from sitting in a cause when he has previously taken cognizance of and expressed himself on the same merits of that cause when sitting as a judge in the Court of voluntary jurisdiction.\u201d"],"178":["9.The applicant was born in 1990 and lives in Z.","10.Owing to problems in her family, between 2000 and 2004 she lived with a foster family. Then she moved to a public home for children and young persons, where she stayed until she completed her professional training in catering service. Afterwards she moved to live with her father in S. and occasionally visited her mother in Z.","11.On 27 September 2012 the applicant came to a police station in Z. and on the record made a criminal complaint against a certain T.M. She alleged that during the summer of 2011 T.M. had physically and psychologically forced her into prostitution.","12.The applicant submitted that sometime before the summer of 2011 T.M. had contacted her via Facebook and presented himself as a friend of her parents. Following this initial contact, for about a month or two she had continued exchanging messages with T.M. over everyday things. Then sometime in June or July 2011 she had met T.M. and went for a drink with him. On that occasion T.M. had explained that he wanted to help her with finding a job because he knew her parents. For that purpose T.M. left his phone number. Already on that occasion the applicant felt that T.M. was a person who insisted on having things his own way and who could not be contradicted.","13.The applicant further stated that following this meeting she had continued exchanging messages with T.M. via Facebook. As she had had no reason to question T.M.\u2019s intentions, about two weeks after the first meeting she had contacted T.M. and they had decided to meet again. This time when they met T.M. had said that he would take her to a man to whom she should provide sexual services for money. T.M. had explained that she should charge 400 Croatian kunas (HRK; approximately 50 euros (EUR)) for her services and that she should give him half of that money. She had told T.M. that she did not want to do this. T.M. had then said that she would only have to do this until he found her a proper job. As she had earlier realised that T.M. was not a person to whom one could say \u201cno\u201d, out of fear she had agreed to go with him to see the man.","14.T.M. had then taken her in his car to a place in the proximity of Zap. (a city near Z.) where the man had been waiting for her in a house. The applicant had explained to the man what was happening and the man had not insisted on having intercourse with her but said that he would give her HRK 400. T.M. had listened to this conversation behind the door and, after the man had left the room, T.M. had slapped the applicant saying that she should never talk to clients and that she should listen to him and do only what he told her.","15.The applicant further explained that after this incident, T.M. would pick her up every day in front of the place where she lived in Z. and he would take her in his car to provide sexual services to men who had answered an advertisement on a social network. After a while, he had given her a mobile telephone so that clients could contact her and had continued to drive her to meet clients in various places. Soon afterwards T.M. had rented a flat in Z. (the applicant provided the address) where she continued rendering sexual services to men. This arrangement had allowed T.M. to have her constantly under control as he had always been in the flat and had also said that he would install cameras so that he could know what was happening.The applicant had been afraid of T.M. as he had said that he had done the same thing with some other girls, whom he would physically punish if they did not listen to him. T.M. had also physically punished her when she opposed him over something. When she had refused to provide sexual services to other men, he had beaten her.","16.The applicant also stated that at the beginning of September 2011, when she knew that T.M. would be absent from the flat for a longer time, she had left the flat and gone to the house of her friend M.I. She explained to M.I. what had happened to her. After he had realised that she had left him, T.M. had at first started contacting her via Facebook asking her to come back and saying how he loved her and that she would never again have to provide sexual services. As the applicant had not answered these messages, T.M. had started threatening that he would find her and that she and her parents would \u201cpay\u201d for everything. The applicant had continued ignoring these messages so after a while T.M. had stopped sending them. A year later, and two weeks before the applicant lodged her criminal complaint, T.M. had again contacted her via Facebook mentioning her mother. All this had made the applicant feel frightened for her own safety and the safety of her parents and sister.","17.The applicant finally explained that on average she had had one client per day because when T.M. had not been around she would turn off the phone and deactivate the advertisement so that clients could not contact her. In total she had some thirty clients and she had earned approximately HRK 13,000 (approximately EUR 1,700). Half of this amount she had given to T.M.","18.On the same day when the applicant made her criminal complaint, the police informed the Z. Municipal State Attorney\u2019s Office (hereinafter \u201cthe State Attorney\u2019s Office\u201d) that the complaint had been lodged and that they were conducting a preliminary investigation.","19.On 10 October 2012, following an order by the Z. County Court (hereinafter \u201cthe County Court\u201d), the police conducted a search of T.M.\u2019s premises and his car. In the car, the police found and seized condoms. During the search of T.M.\u2019s premises, the police seized two automatic rifles with ammunition, a hand grenade and a number of mobile phones.","20.The police also established that T.M. was registered in the police records as a perpetrator of the criminal offences of procuring prostitution, and rape. His criminal record, obtained by the State Attorney\u2019s Office, indicated that in 2005 T.M. had been convicted of the offence of procuring prostitution using coercion, under Article 195 \u00a7\u00a7 2 and 3 of the Criminal Code (see paragraph 96 below) and rape under Article 188 \u00a7 1 of the Criminal Code, and that he had been sentenced to six and a half years\u2019 imprisonment.","21.On 10 October 2012 T.M. was arrested and questioned by the police. It was established that T.M. had trained as a policeman. He denied the allegations made by the applicant and stated that everything was an attempt by the applicant and her mother to take revenge on him for the difficult relationship he had had with the applicant\u2019s mother.","22.On 11 October 2012 the police sent the applicant\u2019s criminal complaint and all the collected evidence to the State Attorney\u2019s Office. The police classified the applicant\u2019s complaint under Article 195 \u00a7 3 of the Criminal Code (procuring prostitution using coercion). T.M. was also brought before an investigating judge of the County Court who ordered his pre-trial detention. He remained in detention until the end of the criminal proceedings against him in the Municipal Court.","23.On 11 October 2012 T.M. was questioned in the State Attorney\u2019s Office. He reiterated the arguments made during the police questioning. He also explained that the applicant had contacted him because she had asked him to protect her from another person for whom she was engaged in prostitution. T.M. denied that he had ever proposed to her that she engage in prostitution for him. He also stressed that the applicant had rented a flat in Z. and that he had lent her money for that, which she had later returned. T.M. further explained that at the applicant\u2019s request he used to drive her around. However, she had not told him where she was going but he had suspected that she might be engaged in prostitution. T.M. stated that he had not lived with the applicant in the same flat. He would only sometimes stay overnight when she would invite him as they had had a relationship. T.M. admitted that once he might have hit the applicant but that was because she had provoked him. He denied that he had given her a mobile phone as she had had her own phone.","24.On 16 October 2012, in the context of the investigation against T.M., the applicant was questioned in the State Attorney\u2019s Office. The applicant was informed of all her rights as a victim of an offence under Article 43 \u00a7 1, Article 45 and Article 52 \u00a7 4 of the Code of Criminal Procedure (see paragraph 98 below). She stated that she had understood the instructions and made no specific request in that regard.","25.During the questioning, the applicant repeated her statement concerning the first contact she had had with T.M. (see paragraphs 12-13 above). She also explained that sometime in spring 2011 T.M. had started suggesting that he could find a job for her in a shopping mall. As she had been without employment, she had started communicating with him more intensively. In this context, she had met T.M. on various occasions in caf\u00e9s and he had continued saying that he could find a job for her. She had had no reason to question his intentions.","26.The applicant also provided further details concerning the incident when T.M. had taken her to provide sexual services to a man in a house near Zap. She stated that it had happened at the beginning of July 2011 and that T.M. had taken her there by deceiving her into thinking that he would take her to a friend who could find her a job. The applicant repeated her statement as regards the events in the house and how the man had not insisted on sexual intercourse but had still paid her HRK 400. She also reiterated that T.M. had stormed into the room where she was with the man and started to shout at her, following which he had slapped her. Moreover, on their way to Z., T.M. had threatened to throw her out of the car on the highway because she had started asking what was happening.","27.The applicant further explained that the next day T.M. had again contacted her and told her that they needed to talk about what had happened. She had agreed to meet him but they had not discussed what had happened as he had avoided the topic. A few days later T.M. had given her a mobile telephone. He had explained that clients seeking sexual services would contact her on that number. T.M. had also told the applicant that she had to give her physical description to men who would contact her and charge HRK400 for half an hour of sexual services or HRK 600 (approximately EUR 80) for an hour, and that she had to give half of that money to T.M. The applicant had acquiesced to all that because she had been scared that T.M. would attack her again and that he would tell her parents everything that was happening.","28.The applicant also submitted that the men who would contact her had explained that they had seen the advertisement on the Internet. Some ten days after the incident in Zap., T.M. had rented a flat (the applicant provided the address), where the applicant and T.M. had then lived together. She had provided sexual services in that flat and sometimes T.M. had driven her to clients. Since T.M. had lived in the same flat with her, he had controlled everything she did. When she had refused to have sexual intercourse with other men or with him or when she had talked to the clients, T.M. had beaten her. He had beaten her every couple of days. She repeated the statement concerning the amount of money she had earned and stressed that she had given half of it to T.M.","29.Asked as to why she had not contacted the police earlier, the applicant answered that she had been afraid of T.M. and that he had had her under his control. However, once, when T.M. had been out of the flat and had left the key, she had called her friend M.I. and asked her for help. M.I. had known that she had been giving sexual services to men for money against her will and that she had been in trouble. After this discussion, M.I.\u2019s boyfriend, T., had arrived by taxi, helped the applicant to collect her things and taken her to M.I.\u2019s home, where she had then stayed for several days.","30.The applicant further said that after she had left, T.M. had at first started contacting her via Facebook asking her to come back to him and telling her that he loved her. As the applicant had not answered these messages, T.M. had started threatening that he would tell everything she had done to her parents. She had truly been afraid that he might do that so she had decided to lodge a criminal complaint to put an end to everything that had happened.","31.The applicant also said that T.M. had told her that he had previously had a girlfriend, A., whom he had treated in the same way as the applicant. She had also learned from Facebook that T.M. had later had another girlfriend who had been engaged in prostitution. T.M. had told the applicant that he had filmed those girlfriends and punished them when they had been insolent. He had also threatened to do the same thing to the applicant. T.M. had told her all that in order to break her will to stand up to him.","32.On 6 November 2012 the State Attorney\u2019s Office questioned M.I. She said that the applicant was her friend and she had known her for some two years. M.I.\u2019s last contact with the applicant (before the applicant had come to her flat) had been some eight or nine months previously.","33.M.I. explained that at the end of summer 2011 the applicant had suddenly come to her home with a bag containing her things. M.I. had then learned that the applicant had agreed with M.I.\u2019s mother that she would come to stay with them, but she (M.I.) did not know any details since she was not on very good terms with her mother. Also, M.I.\u2019s boyfriend (whose full name and address she gave) had told her that he had spoken to the applicant. However, soon afterwards M.I. had broken up with her boyfriend so they had not discussed any details concerning his contact with the applicant.","34.M.I. further stated that the applicant had told her about T.M., from whom she had escaped because she had no longer wished to be involved in prostitution for him. Before the applicant had come to her flat, M.I. had known that the applicant was engaged in prostitution but she had not known where or for whom the applicant was doing this. Only then had M.I. learned that the applicant had being doing it for T.M. According to M.I., the applicant had been very distressed and scared. She had told M.I. that T.M. had repeatedly beaten her, had watched her through a key hole when she had been giving sexual services to clients and afterwards had also beaten her for not being in a position he had approved of.","35.M.I. also said that she understood that the applicant had voluntarily given sexual services because she had needed money. The applicant had told her that she had had an agreement with T.M. to work for him and to share the money, that she had had a mobile telephone for clients to call her and that there had been a small ad through which she had been contacted for appointments by clients. The applicant had said that T.M. had given her that mobile telephone and placed the advertisement.","36.M.I. further stated that she could not remember if the applicant had told her that she had resisted T.M. It was true that the applicant had said that she had not wished to \u201cdo it\u201d but in M.I.\u2019s understanding that had rather meant that the applicant had been \u201cdoing it\u201d because she had had no other means to earn money. The applicant had also told her that T.M. had slapped her for very minor reasons which she (the applicant) had not expected. The applicant had also said to M.I. that when she had refused sexual relations with him T.M. would beat her and the applicant had not known what would make him explode again. According to M.I.\u2019s knowledge, T.M. had also told the applicant that he had had another girlfriend whom he had treated in the same way as the applicant. The applicant told M.I. that she had used the opportunity to run away from T.M. when he had been out of the flat where they had lived.","37.M.I. also said that the applicant had stayed with her and her mother for more than half a year and that T.M. had continued to contact the applicant through Facebook. M.I. had seen the messages that he had sent and they were threatening to the applicant and the applicant\u2019s mother. He had also sent messages saying that he loved her and asking her to come back to him.","38.On 6 November 2012 the State Attorney\u2019s Office indicted T.M. in the Z. Municipal Criminal Court (hereinafter \u201cthe Municipal Court\u201d) on charges of procuring prostitution using coercion, as an aggravated offence of procuring prostitution, proscribed by Article 195 \u00a7 3 of the Criminal Code (see paragraph 96 below).","39.The indictment alleged that T.M., in order to obtain pecuniary gain, had deceived the applicant into believing that he would find her a job. However, after that he had taken her to provide sexual services to a man in Zap. As the applicant had refused to do that, T.M. had hit her and then, on their way back to Z., had threatened to throw her out of the car. Soon afterwards T.M. had provided the applicant with a mobile phone to answer the clients\u2019 calls. He had also instructed her how to charge for sexual services and to give half of the money to him. According to the indictment, the applicant had consented to this out of fear. T.M. had then taken the applicant to the addresses of clients where she had provided sexual services for money and after a while he had rented a flat in Z. where the applicant had continued providing sexual services to a number of men. T.M. had kept the applicant under surveillance and had also told her that he had beaten other girls who did not do what he had requested. When the applicant resisted him saying that she did not want to provide sexual services anymore, T.M. would hit her. She had therefore, out of fear of him, continued providing sexual services to men for money until September 2011, when she had run away from the flat.","40.The indictment relied on the applicant\u2019s statement and considered that it was corroborated by M.I.\u2019s evidence. The indictment also considered that T.M.\u2019s defence, although denying the commission of the offence, essentially made the applicant\u2019s statement even stronger.","41.On 22 November 2012 a three-judge panel of the Municipal Court confirmed the indictment and sent the case for trial.","42.The first hearing before the Municipal Court scheduled for 12December 2012 was adjourned because T.M. claimed to be on hunger strike and could not therefore participate in the proceedings. The judge conducting the proceedings commissioned an expert report to establish whether T.M. could participate in the trial.","43.The expert report established that T.M. had worked as a policeman for a number of years and that he had been a member of the special police forces during the war in Croatia in the 1990s. He had retired from the police in 2001. He suffered from a post-traumatic stress disorder (PTSD) related to his participation in the war and he had also developed a personality disorder. He had received psychiatric treatment over a number of years. According to the report, T.M.\u2019s capacity to understand the nature of the impugned acts had been diminished but not to a significant degree. The report therefore recommended that, in the event of conviction, an order for mandatory psychiatric treatment be made. The report also considered that T.M. could participate in and follow the proceedings.","44.At a hearing on 14 January 2013 T.M. pleaded not guilty. He denied that he had forced the applicant into prostitution. He confirmed that he had contacted the applicant through Facebook because he had recognised her surname since he had known her mother. After several exchanges of messages via Facebook, T.M. and the applicant had started to see each other and the applicant had told him that she had had no money and needed a job and that she had some debts. She had also said that she was in fear of a certain B., whom T.M. had known from prison and it had therefore been clear to him \u201cwhat the applicant was doing\u201d. Moreover, she had said that she had kept contact details of her clients which she had obtained from B. The applicant had also asked T.M. to lend her money to rent a flat, which he had done and she had later returned the amount she had borrowed in two instalments. The applicant had also said that she would try to find a job.","45.T.M. further stated that a few weeks after he had met the applicant, they had engaged in a relationship. The applicant had asked him to take her to certain addresses by car and on five or six occasions he had done so. He had known that she was going there to give sexual services for money. However, he had not known how much she had been earning from the provision of her services. T.M. confirmed that he had once hit the applicant because they had had a disagreement over \u201cwork\u201d and she had provoked him. He specified that this concerned the fact that the applicant had said that she had found a job in a bakery but that she did not want to work. T.M. had not liked her attitude so there had been an argument and, as he had not been able to control himself, he had hit her. Later on, he had found a job for the applicant in a restaurant in Zap. but then she had disappeared. This had happened in August 2011 and the only thing he had found in the flat she had rented had been a message from the owner of the flat addressed to the applicant.","46.When questioned by the judge conducting the proceedings, T.M. explained that he had not lived with the applicant in the flat she had rented but only sometimes spent the night there. He had had the keys of the flat. Sometimes the applicant would go alone to see her clients or to see a doctor or her friends, and she would later inform T.M. that she had some money. T.M. could not explain why he had agreed to the applicant providing sexual services to other men when he had been in a relationship with her. He stressed that she had wanted to be independent and to earn her own money so he had not wanted to interfere in that. He also explained that he had only used one mobile phone and that those found by the police during the search had been his old phones which he had no longer used.","47.When questioned by the prosecutor, T.M. denied that he had given any mobile phone to the applicant. According to him, she had had her own two mobile phones. T.M. also stated that on two or three occasions the applicant had given him some money for fuel because he had driven her around. However, she had constantly complained that she had no money so he used to give her money as well. T.M.\u2019s impression was not that the applicant had been afraid of him as she had not been the kind of person to be afraid of anybody.","48.Following T.M.\u2019s questioning, the prosecutor asked that the applicant and M.I. be heard as witnesses. The defence agreed and made no other proposal for the taking of evidence. The trial court accepted the parties\u2019 proposal and scheduled the next hearing for 29 January 2013.","49.The summons for the hearing served on the applicant contained detailed information on her rights as a victim, such as psychological and practical support and the possibility to contact the Department for Organising and Providing Support for Witnesses and Victims within the Municipal Court. The contact details of that Department were also provided.","50.At a hearing on 29 January 2013 the Municipal Court heard evidence from the applicant and M.I. The applicant was accompanied by a lawyer provided to her by the non-governmental organisation the Rosa Centre.","51.Before giving her evidence the applicant told the trial court that she was afraid of T.M. He was then removed from the courtroom and the applicant gave evidence in his absence.","52.During questioning, the applicant repeated her statement given during the investigation (see paragraphs 25-31 above) and said that she wanted to clarify certain aspects of that statement. In this connection, she explained that before the incident in Zap. she had met T.M. three or four times for a coffee and they had exchanged messages on Facebook. He had promised to do his best to find her a job as a waitress or in a shop. The applicant further clarified that when T.M. had taken her to see the man in Zap., he had said that they would have a coffee with him. In the house, the man had seen T.M. slapping her. With regard to the events that happened on their way back to Z., the applicant explained that she had wanted to run away from T.M. but that he had managed to catch her and had forced her to stay in the car. The next day when they had met they had not talked about these events but about her attempts to find a job. The applicant also explained that she had agreed to move into the flat which T.M. had found without him using any force on her. She had done that in order to protect her roommate with whom she had lived at the time. T.M. had commented on how good-looking she was and the applicant had tried to avoid getting her in any of these things and to end up like she (the applicant) did.","53.When questioned by the judge conducting the proceedings, the applicant explained that when T.M. had rented the flat for her she could guess what she was expected to do there, namely to provide sexual services. She had been afraid of him and for that reason had agreed to give sexual services to other men. He had also threatened that he would tell everything to her parents and that he would put her mother in prison. The applicant also repeated her statement from the investigation about the number of clients she had had and the money she had earned, half of which she had given to T.M.","54.The applicant further stated that T.M. had been present in the flat when she had provided sexual services to other men. Sometimes he had watched her through the keyhole and he would slap her if she refused to be with a client or to have the intercourse in the way T.M. had wanted. She had also been forced to have sex with T.M. She had not sought medical help or contacted the police because she could not get out of the flat.","55.When further questioned by the judge conducting the proceedings, the applicant said that she had not known T.M.\u2019s background when they had first got in touch. At that time, he had known that she had no job and he had promised to try to find her one. As to the incident in Zap., the applicant repeated her statement from the investigation. She explained that she had voluntarily given the money she had received from the man to T.M.","56.The applicant also explained that she had accepted the mobile phones which T.M. had procured for the contacts with clients because she had been afraid of him. Later on, while no longer living in the flat which T.M. had rented, the applicant had learned from T.M. that her mother had previously reported him (the applicant did not specify for what) and that he had been in prison. The applicant also stated that it was she alone who had answered the clients\u2019 calls. Clients would sometimes come to the flat or T.M. would drive her to meet them. In the flat, she had lived with T.M. although she had been required to pay rent, and she had done so. She had not had keys to the flat. She had had one mobile phone which T.M. had provided and she had her own mobile phone but did not have money on the pre-paid SIM card. She had stayed in the flat for about a month and a half. She had not tried to run away because she had been afraid of T.M. She had also not tried to contact the police because T.M. had said that he had contacts in the police and that he would very quickly learn if she had reported him.","57.As regards her escape from the flat, the applicant explained that once she had taken advantage of the fact that T.M. had been absent for a while and that the key had been left in the front door. She had then called her friend M.I., with whom she had been in contact over the Internet some fifteen days before when she had told M.I. that she was in trouble and that she would need her help. On the occasion when she had called M.I., the applicant had spoken to M.I. and her mother. She had not explained any details but had simply said that she was staying with a man in a flat and was engaged in prostitution and that she wanted to escape. The agreement was that M.I.\u2019s now former boyfriend T. would come by taxi to pick her up. The applicant explained that she had had some earlier contacts with T. via Facebook but she had not told him anything about her situation. When T. had taken her to M.I.\u2019s place, the applicant had found M.I. and her mother there. She had stayed with them for about ten days and she had told M.I. what she had been through. Meanwhile, she had also had contact with the owner of the flat where she had stayed with T.M. concerning the rent and how she could get some of her belongings that she had left there.","58.Further to the judge\u2019s questions, the applicant explained that she had not tried to escape from T.M. when he took her to see clients away from the flat because she had been sure that he would find her and he had strictly controlled the time she spent with clients. The applicant also stated that T.M. had told her that he had done the same thing to another girl. When confronted with T.M.\u2019s defence, the applicant denied that T.M. had ever lent her money to pay her rent. She said that she did not know any person by the name of B. and denied that she had had any contact details of clients. She also stated that T.M. had never told her that he had found her a job in the restaurant in Zap. Later on, when she had already left him, he had sent her some messages via Facebook mentioning that he had found her a job in a shop.","59.The applicant also stated that at first when she had run away from T.M. she had not wanted to report him to the police. However, after she had left, T.M. had continued contacting her via Facebook, had reported to the authorities that her mother had neglected and abused her younger daughter, and had threatened that as soon as she found a job or continued with her education he would destroy everything for her. She had therefore decided to report him to the police. The applicant also explained that after she had left T.M. she had been afraid to go out in public and felt fear every time she saw a car similar to T.M.\u2019s.","60.When questioned by the prosecutor, the applicant stated that she had been very afraid of T.M. She had never known how he would react and she had been in fear for her life because he used to threaten that he would beat her to death. Also, when she had refused to have sex with him, he would beat her. He had also beaten her when she said that she did not want to provide sexual services anymore. Moreover, he had deceived her by saying that she would have to provide sexual services only for a few days and that he would find her a proper job. As to the sharing of money, the applicant explained that she would first hand over all the money she had collected from a client to T.M. and he would then give part of it to her. T.M. had also set some rules concerning the way she was allowed to provide sexual services. When she did not obey this or if she gave sexual services in a manner that he did not like, he would then beat her. He had also taken photos of her naked and published them with the ad. She had not objected to him taking the photos because she had been scared. Then, he had threatened to show the photos to her parents.","61.When questioned by her lawyer, the applicant stated that T.M. had at first presented himself to her as a former policeman and said that he had been in the war with her father. Later on he had said that he knew people in every police station and that he would \u201cframe\u201d her if she tried to report him.","62.When questioned by the defence lawyer, the applicant stated that following her first contact with T.M. she had not tried to get in touch with her mother to check whether she had known him. At that time, her mother had not lived in Croatia and they had not been on good terms. However, she had then exchanged some messages with her mother, who had simply said that T.M. was not a reliable person. The applicant had also asked her father about T.M. and he had said that T.M. was \u201can okay person\u201d. The applicant had concluded from the messages which she had exchanged with T.M. that he was not a bad person and she had no reason to call into question his statement that he had been a policeman. Later on, after she had left T.M., the applicant had spoken to her mother about him. Her mother had told her that she had lived with T.M. after she had split from the applicant\u2019s father. When the applicant asked her mother why T.M. was angry with her and why she had reported him (it was not specified in the record for what), her mother had said that it had not been her but another girl who had reported him and that this girl had provided sexual services in the same manner as the applicant did. According to the applicant, that was the same girl about whom T.M. had also spoken to her.","63.When further questioned by the defence lawyer, the applicant explained that when she had gone to pick up her belongings from the flat where she had lived with T.M., the owner of the flat and M.I. had been there with her. She had been contacted by the owner as she had not paid the last rent. The flat had been rented in her name. During her stay in the flat with T.M. the owner used to come and T.M. would present them as a couple to the owner. The applicant also stated that T.M. had slept every night in the flat. She did not deny that there had been moments when she would leave the flat to go to a shop without T.M. It had happened three or four times during the period of a month and a half. However, she had not dared to run away because of her fear of T.M., who had always watched her from the window.","64.After the applicant\u2019s questioning, T.M. was brought back to the courtroom and her statement was read out to him. He had no questions and made a general objection as to the credibility of her statement.","65.The trial court then proceeded to the questioning of M.I. She repeated her statement given during the investigation (see paragraphs 32-37 above).","66.When questioned by the judge conducting the proceedings, and after being presented with the applicant\u2019s statement, M.I. denied that the applicant had called her when she had left T.M. She insisted that the applicant must have arranged everything with her (M.I.\u2019s) mother. M.I. further stated that she had known from before that the applicant was engaged in prostitution because the applicant had told her so. The applicant had explained to M.I. that she needed money and that she was living without parents. M.I. considered that the applicant had initially engaged in prostitution voluntarily. M.I.\u2019s opinion was that the applicant had also voluntarily engaged in the prostitution ring with T.M. because she had needed money. However, the applicant had not known who she was dealing with given that \u2013 as M.I. had learned from the applicant \u2013 T.M. had forced and beaten her. M.I. could not remember whether the applicant had told her that she had resisted T.M. when he had asked her to provide sexual services to men. The applicant had told M.I. that she did not want to do these things anymore but M.I. had understood that as a general complaint about the fact that she had to earn money in this way.","67.When further questioned by the judge conducting the proceedings, M.I. stated that the applicant had stayed for several months with her. When she had come to M.I.\u2019s place, the applicant had not had any visible injuries but had been very scared and upset. She had been in fear of T.M. and had said that she could not believe what had happened to her and that she had not expected that. M.I. also explained that she had seen the Facebook messages which T.M. had sent to the applicant on the applicant\u2019s laptop. They had been long messages in which T.M. had sometimes said how he loved the applicant and sometimes had made threats mentioning the applicant and her mother. M.I. denied that she had gone with the applicant to pick up her belongings in the flat where she had lived with T.M. According to M.I., it had been her boyfriend T. who had gone with the applicant to the flat.","68.When questioned by the defence lawyer, M.I. stated that the applicant had never mentioned to her a person by the name of B. She also said that at about the time when the applicant had come to her place she was about to break up with her boyfriend T. As far as M.I. knew, at the relevant time T. had only once exchanged a message with the applicant via Facebook.","69.Following M.I.\u2019s questioning, the applicant stated that she had no objections to M.I.\u2019s evidence. The applicant considered that, although there had been some discrepancies in their statements, this was the result of the peculiar course of events.","70.After hearing the applicant and M.I., the prosecutor proposed that the materials from the file be allowed as evidence. The defence asked that a certain K.Z. be heard as a witness concerning the threats of revenge that the applicant\u2019s mother had allegedly made towards T.M. The defence also asked that T.M.\u2019s brother be heard as a witness.","71.The prosecution opposed these proposals and the trial court considered that it was not necessary to take the evidence proposed by the defence. The next hearing was scheduled for 15 February 2013.","72.At the hearing on 15 February 2013 the applicant was represented by the lawyer provided by the Rosa Centre. T.M. asked the trial court to allow him to make a further statement, which the trial court agreed to.","73.In his statement, T.M. stated that he knew the applicant\u2019s mother because she had also been a prostitute but had lost touch with her when he had started serving his prison sentence. After he had made contact with the applicant via Facebook, the applicant had told him that she had talked to her mother about him. He had wanted to help the applicant to find a job and she had also told him that she was engaged in prostitution because that had been the easiest way to earn money. He had fallen in love with the applicant and wanted to have a relationship with her. He had agreed that she could continue with the prostitution because he was not a jealous person. However, he had told her that she should get a proper job.","74.T.M. further stated that it was the applicant who had rented the flat and organised everything. He knew that she had charged HRK 400 for half an hour and HRK 600 for an hour but it had been her, not him, who had set that price. He had not constantly stayed in the flat. He also denied that the incident in Zap., as stated in the indictment, had ever happened.","75.When questioned by the judge conducting the proceedings, T.M. admitted that sometimes he had been in the flat when the applicant had provided sexual services to men and that he had received half of the money which she had charged for her services. He had not wanted to take the money but the applicant had insisted saying that it was for the fuel that he had used when driving her to meet clients away from the flat. T.M. also denied that he had strictly controlled the time the applicant had spent with her clients. However, he admitted that he had given her money to buy a mobile phone but that was because she had asked for it. According to T.M., the applicant could have left the flat whenever she wished. However, he had been surprised to see that one day she had simply left. He assumed that the reason for that was the fact that he had put pressure on her to find a proper job and had even made certain contacts to arrange job interviews for her. T.M. admitted that he had hit the applicant once but the reason had again been related to his insistence that she find a proper job. T.M. also stated that he had not known how many clients the applicant had had in total. He had not always been with her and had not constantly controlled her. He denied any deception or force towards the applicant related to her provision of sexual services.","76.When asked by the applicant\u2019s lawyer why the applicant needed him at all when she had arranged everything on her own, T.M. refused to answer that question saying that he had already explained everything concerning their relationship.","77.After hearing T.M.\u2019s further statement, the parties made no further proposals for the taking of evidence. The judge conducting the proceedings admitted the documents provided by the prosecution as evidence, heard the parties\u2019 and the applicant\u2019s lawyer\u2019s closing statements and concluded the proceedings.","78.Following the hearing of 15 February 2013 the Municipal Court acquitted T.M. on the grounds that although it had been established that he had organised a prostitution ring into which he had recruited the applicant, it had not been established that he had forced or pressured her into prostitution, which was a constituent element of the offence he was charged with under Article 195 \u00a7 3 of the Criminal Code. In finding this, the court in particular noted the following:","\u201cOn the basis of the evidence given by the accused and the victim in these criminal proceedings the following facts have been established: that the accused and the victim met through the social network Facebook when the accused contacted the victim; that the accused had known the victim\u2019s mother and father from before; that after the initial contact, the contacts continued in that the accused and the victim met in caf\u00e9s in Z.; that at the time the victim lived in a rented flat with a friend K.; that she voluntarily, and at the invitation of the accused, moved to [another] flat in Z.; that she lived in that flat together with the accused for about month or month and a half. There is also no doubt that the accused gave a mobile telephone to the victim so that she could be contacted by the clients with whom she discussed providing sexual services; that the victim indeed did provide sexual services in the flat where she lived with the accused; that on five or six occasions the accused drove the victim to the addresses of clients where she provided sexual services; that the victim charged for providing sexual services the sum of HRK 400 for half an hour and the sum of HRK 600 for an hour. Moreover, there is no doubt that on one occasion the victim left the flat where she lived with the accused and went to her friend M.I.","However, it remains to be established whether the accused forced the victim to provide sexual services \u2013 which she undoubtedly provided \u2013 by the use of force or threat of the use of force or by deception, in order to obtain pecuniary gain.\u201d","79.In reaching the above conclusion, the Municipal Court noted that the decisive evidence on which the indictment was based was the applicant\u2019s witness statement. However, the Municipal Court considered that it could not give sufficient weight to the applicant\u2019s testimony because her statement had been incoherent, in places illogical and contrary to the evidence given by the witness M.I. and also by T.M. in his defence. Moreover, she had been unsure and had paused and hesitated when speaking. On the other hand, the Municipal Court considered that it could rely on the evidence given by M.I. and that it could generally accept T.M.\u2019s defence, despite the fact that he had changed his statement during the proceedings. The court also considered that T.M.\u2019s denial of the use of any coercion against the applicant was confirmed by the evidence given by M.I. as regards her knowledge of the applicant\u2019s previous life and the circumstances in which she had engaged in prostitution for T.M.","80.On 26 March 2013 the State Attorney\u2019s Office lodged an appeal against the first-instance judgment with the County Court. It argued that the first-instance court had erred in its factual findings concerning the charges against T.M. in not accepting the applicant\u2019s testimony. The State Attorney\u2019s Office considered that her statement had been coherent, credible, logical and convincing, given that in all relevant parts she had provided a consistent account of the manner in which T.M. had forced her into prostitution. It also considered that T.M.\u2019s statement could not be taken as credible and stressed that M.I. did not have direct knowledge of the relevant facts of the case.","81.On 21January 2014 the County Court dismissed the appeal of the State Attorney\u2019s Office and upheld the first-instance judgment, endorsing the reasoning as well as the facts as established by the Municipal Court.","82.The County Court\u2019s judgment was served on the applicant\u2019s lawyer on 28 February 2014.","83.On 31 March 2014 the applicant lodged a constitutional complaint with the Constitutional Court, complaining about the manner in which the criminal-law mechanisms had been applied in her case. She alleged, in particular, that the domestic authorities had not properly elucidated all the circumstances of the case relating to her participation in the prostitution ring organised by T.M. and had allowed that the offence committed by him to remain unpunished.","84.On 10 June 2014 the Constitutional Court declared the applicant\u2019s constitutional complaint inadmissible on the grounds that the applicant had not had the right to bring a constitutional complaint concerning the criminal proceedings against T.M. since these proceedings had concerned a criminal charge against him.","85.On 21 December 2012, following an identification process carried out by the Ministry of the Interior, the applicant was officially given the status of victim of human trafficking by the Office for Human and Minority Rights of the Government of Croatia (Vlada Republike Hrvatske, Ured za ljudska prava i prava nacionalnih manjina; hereinafter \u201cthe Human Rights Office\u201d; see paragraph 105 below).","86.On the same day the Ministry of the Interior contacted the Croatian Red Cross and its employees informed the applicant of her rights (safe accommodation, medical check-ups, psycho-social support, legal aid and material support).","87.The applicant did not wish to exercise the right to safe accommodation since she lived with her mother and sister. However, in the period between 17 January 2013 and 24 April 2015 the applicant contacted the Red Cross on several occasions. She received psycho-social support through individual counselling and material support. On two occasions the Red Cross also organised a dental examination for the applicant, as well as individual counselling with a psychologist.","88.Further to this the applicant was provided with legal aid by the non-governmental organisation the Rosa Centre (see paragraph 50 above), whose activities in the field of human trafficking were in part supported by the State.","89.On 13 March 2013 the non-governmental organisation the Rosa Centre complained to the Human Rights Office that the State Attorney\u2019s Office had not pursued the applicant\u2019s case diligently by collecting and presenting evidence capable of elucidating all the circumstances of the case. In this connection, the Rosa Centre stressed that there had been some inconsistencies in the statements of the applicant and the witness M.I., which required further clarification. It also submitted that the applicant had later explained that certain inconsistencies in her statement had been the result of her wish to protect other persons, namely her roommate, her friend M.I. and her mother.","90.The Rosa Centre further argued that the trial court, which had not been bound by the prosecution\u2019s legal classification of the facts, had not reclassified the charges to the basic form of procuring prostitution under Article 195 \u00a7 2 and convicted T.M. of that offence. The Rosa Centre also suggested that after the hearing, in an informal context, the judge conducting the proceedings had said to its lawyer that probably eighty percent of his colleagues would have convicted T.M. but that he had not considered that T.M. should be convicted as charged by the State Attorney\u2019s Office. On that occasion, the judge had also stated that the State Attorney\u2019s Office should have amended the indictment.","91.The Human Rights Office forwarded this letter to the State Attorney General\u2019s Office and asked for the relevant explanations.","92.In its report of 14 May 2013 the competent State Attorney\u2019s Office explained that it had considered the applicant\u2019s statement to be credible and convincing, and that it provided sufficient grounds for T.M.\u2019s conviction under Article 195 \u00a7 3 of the Criminal Code. However, the Municipal Court had not agreed with this assessment and had acquitted T.M. The State Attorney\u2019s Office still believed that the classification of procuring prostitution using coercion was appropriate and it had therefore lodged an appeal against the first-instance judgment (see paragraph 80 above). In these circumstances, it did not consider that it should have amended the indictment. In any event, it stressed that if the Municipal Court considered that T.M. should have been convicted of the basic form of the offence of procuring prostitution under Article 195 \u00a7 2 of the Criminal Code, it could have amended the legal classification of the charges itself.","93.On the basis of this report, on 21 August 2013 the State Attorney General\u2019s Office informed the Human Rights Office of its findings endorsing the assessment of the case by the competent State Attorney\u2019s Office.","94.The case file of the Municipal Court which the Government provided to the Court contains a document indicating that on 4 September 2012 the Office of the Deputy Prime Minister of Croatia forwarded to the Ministry of Social Policy and Youth and the Ministry of the Interior a complaint made by T.M. about the alleged mistreatment of her children by the applicant\u2019s mother. The Office of the Deputy Prime Minister asked the relevant ministries to examine the matter and to report back on their findings. A copy of the Office\u2019s request was also sent to T.M."],"179":["2.The applicants were represented by Mr G. Stramandinoli, a lawyer practising in Turin.","3.The Government were represented by their Agent, Mr L. D\u2019Ascia, State Attorney.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.All the applicants fall into one of the categories listed in Law no.336 of 24 May 1970 (\u201cLaw no. 336\/1970\u201d) (veterans, disabled war veterans, war widows, civilian victims of war), either directly or because they are heirs of the persons entitled.","6.By virtue of section 6 of Law no. 140\/1985, the State introduced a monthly increase in the pensions of persons belonging to one of the categories provided for by Law no. 336\/1970, an increase in the amount of 30,000 Italian lira (ITL \u2013 15.49 euros (EUR)).","7.Following the applicants\u2019 retirement, the National Social Security Agency (Istituto Nazionale della Previdenza Sociale \u2013 INPS) recognised that all of them were entitled to the pension increase from the date when they were eligible to claim their pensions.","8.Between 4 February 2002 and 1 March 2006 the applicants brought several administrative actions against the INPS to have the automatic adjustment of the increase in line with the cost of living (perequazione automatica) calculated from the year in which the Law had entered into force (1985), rather than from the date when they had become eligible to claim their pensions. The INPS dismissed all of the applicants\u2019 actions.","9.Following the dismissal of their administrative actions, between 28July2005 and 30 March 2007, by means of individual applications, the applicants instituted judicial proceedings before the Turin Tribunal.","10.Up until the end of 2007 the Turin Tribunal and the Turin Court of Appeal always ruled in favour of the applicants, obliging the INPS to calculate the adjustment on the increase from the year of the entry into force of the Law. Such an interpretation had also been confirmed by the Court of Cassation in its judgment no. 14285\/2005 of 4 May 2005 (\u201cjudgment no.14285\/2005\u201d) concerning an individual in the applicants\u2019 position.","11.On 1 January 2008 Law no. 244\/2007 entered into force. Section2(505) of that Law provided for an authentic interpretation of section 6(3) of Law no. 140\/1985, establishing that the latter had to be interpreted as meaning that the increase provided for in section 6(1) had to be adjusted from the time it was granted to entitled persons (upon their retirement).","12.On 5 December 2008, by means of its judgment 401 (\u201cjudgment no.401\/2008\u201d), the Constitutional Court declared the question of the constitutionality of Law no. 244\/2007 ill-founded. According to the Constitutional Court, the Law was in conformity with the principle of equality and reasonableness.","13.The following domestic courts applied the new Law or endorsed the interpretation given by the Constitutional Court and dismissed the claims of all the applicants: the Turin Court of Appeal in the case of Mr T. Maggio on 19February2009; and the Court of Cassation in respect of the rest of the applicants, by means of several judgments issued between 9 June 2009 and 19July2011."],"180":["The applicant, Mr Abdyrakhim Bolkarayevich Bolkarayev, is a Russian national who was born in 1968 and is detained in Kursk. He was represented before the Court by Ms R.K. Nazarova, a lawyer practising in Astrakhan.","The Russian Government (\u201cthe Government\u201d) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.","The circumstances of the case","The facts of the case, as submitted by the parties, may be summarised as follows.","First trial","The applicant was accused of violating traffic regulations, causing bodily harm to Mr A.V.A. and leaving him in a state of vulnerability. The applicant pleaded guilty. The applicant gave his consent for the case against him to be examined by way of a summary procedure, based on a guilty plea. The prosecutor, the victim (Mr A.V.A.) and his representative (apparently, Mr V.M.A., the victim \u2019 s father) also agreed to the summary procedure. By a judgment of 14 January 2008 the Privolzhskiy District Court of the Astrakhan Region convicted the applicant under Articles 125 and 264 \u00a7 1 of the Criminal Code.","The prosecutor appealed against the trial judgment. The appeal court quashed the trial judgment and ordered a retrial.","Second trial","At the retrial the applicant pleaded guilty to the charges under Articles 125 and 264 \u00a7 1 of the Criminal Code. By a judgment of 28 May 2008 the District Court convicted the applicant and sentenced him to eighteen months \u2019 imprisonment. The court acquitted the applicant under Article 125 of the Criminal Code. The parties appealed. On 17 July 2008 the Astrakhan Regional Court upheld the judgment of 28 May 2008. On 29 August 2008 a judge of the Regional Court dismissed V.M.A. \u2019 s application for supervisory review. The applicant served his eighteen-month sentence and was released on an unspecified date.","Third trial","In December 2008 V.M.A. wrote to the Astrakhan regional prosecutor \u2019 s office. According to the Government, V.M.A. had received some information from unspecified police officers who had been present at the race on 16 September 2007. Furthermore, according to the Government \u2019 s submission, V.M.A. had received that information \u201conly after the applicant \u2019 s conviction\u201d. This information prompted the prosecutor to seek the resumption of the proceedings.","On 26 December 2008 the Astrakhan regional prosecutor \u2019 s office initiated \u201cproceedings on account of new circumstances\u201d and demanded that the regional investigating authority investigate those circumstances. On 25 March 2009 the regional prosecutor \u2019 s office lodged an application with the Presidium of the Regional Court seeking the reopening of the criminal proceedings on account of new circumstances. By a ruling of 7 April 2009 the Presidium of the Regional Court allowed the application lodged by the prosecutor for the reopening of the proceedings. The Presidium decided to resume the criminal proceedings in the light of the new circumstances, and remitted the case to the prosecutor for a fresh investigation.","The applicant lodged an application for supervisory review of the ruling of 7 April 2009 with the Supreme Court of Russia (see below).","On 13 May 2009 an investigator resumed the investigation in the case. The applicant was then arrested and remanded in custody. On 30 May 2009 the applicant was charged with offences under Article 105 \u00a7 2 of the Criminal Code, in conjunction with Article 30 \u00a7 3 (e), on account of an attempted murder. On 27 November 2009 the applicant was charged under Article 317 of the Criminal Code and Article 105 \u00a7 2, in conjunction with Article 30 \u00a7 3 (a) and (b).","On 31 December 2009 the criminal case against the applicant was submitted for trial before the Regional Court. On 19 January 2010 the applicant opted for trial by jury. He was assisted at the trial by two lawyers.","The applicant \u2019 s lawyer cross-examined Ku., asking him, inter alia, about the location of the damage on To. \u2019 s vehicle, and why Ku. \u2019 s pre-trial statement indicated that during the pursuit the applicant \u2019 s vehicle had hit the back part of To. \u2019 s vehicle, rather than the front side, as Ku. had stated during the trial, and why it had not indicated \u2013 unlike Ku. \u2019 s statement at the trial \u2013 that the applicant \u2019 s vehicle had made a move backwards before heading towards Ku., To. and A.V.A.","The applicant \u2019 s lawyers also cross-examined To.","At the defence \u2019 s request, a Mr Sh. attended one of the hearings on 3 March 2010. As can be seen from the trial record, when lodging the request that Mr Sh. be allowed to attend the hearing in question, the applicant \u2019 s lawyer pointed out that no technical or other expert report had been ordered during the preliminary investigation, and explained that as an \u201cautomobile expert\u201d Sh. could testify before the jury as to the damage sustained by the vehicle because the victims \u2019 statements in that respect had been contradictory.","The prosecutor objected, indicating that Sh. could not be considered an \u201cexpert\u201d under the Code of Criminal Procedure (\u201c CCrP \u201d) because no expert report had been ordered; an expert would be authorised to testify in relation to his or her expert report; Sh. had not studied the case file and was not in a position to make any relevant statement.","The court dismissed the above-mentioned request, indicating that Sh. could not be examined as an automobile expert because he was \u201cnot in a position to testify about the factual circumstances of the case\u201d.","On 9 March 2010 the jury convicted the applicant. By a judgment of 10 March 2010 the presiding judge sentenced the applicant to fourteen years \u2019 imprisonment. This sentence was to include the period of the applicant \u2019 s deprivation of liberty after 28 May 2008, namely the prison term he had served thereafter under the judgment of 28 May 2008 (see above). The applicant appealed, arguing that the jury had been influenced by an article published in a newspaper; there had been insufficient evidence that the applicant had had intent to commit a murder; that the trial judge had relied on inadmissible evidence and had rejected the motions submitted by the defence, in particular as regards Sh.","In the meantime, on 4 March 2010 the applicant lodged a supervisory \u2011 review application challenging the ruling of 7 April 2009 by which the Regional Court had reopened the criminal proceedings. The Supreme Court of Russia received this application on 12 March 2010. By a letter of 9 April 2010 a judge of the Supreme Court of Russia declined to deal with the applicant \u2019 s application for supervisory review, indicating that the applicant had already been convicted by a trial court on 10 March 2010 (see above) and that he could raise his arguments against that conviction during the upcoming appeal proceedings.","On 6 July 2010 the Supreme Court of Russia, acting as a court of appeal, upheld the judgment of 10 March 2010. The Supreme Court indicated that the defence \u2019 s request for Sh. to be examined had been rightly dismissed as not being related to the substance of the charges against the defendant.","Relevant domestic law","The Code of Criminal Procedure defined a \u201cspecialist\u201d as a person having special knowledge and being involved in procedural actions in order, inter alia, to clarify to the parties and the court matters within his or her professional area of expertise (Article 58). A court could not refuse a request for a specialist to be heard during a hearing at which that specialist was present (Article 271)."],"181":["2.The applicant was born in 1950 and lives in Kulautuva, in the Kaunas region. He was represented by Mr A. Palijanskas, a lawyer practising in Kaunas.","3.The Government were represented by their Agent, most recently MsK. Bubnyt\u0117-\u0160irmen\u0117.","4.In January 2005 the authorities restored the property rights of the applicant\u2019s mother by giving her a plot of land in Kulautuva. At that time, the land in question was included in the Register of Forests (Mi\u0161k\u0173 kadastras) as forest land (see paragraph 25 below). In June2006 the applicant\u2019s mother gifted the applicant 0.8 hectares of forest land.","5.As submitted by the applicant and not disputed by the Government, sometime between 2005 and 2006 the applicant built a house and a storehouse on the aforementioned plot. From that time until the date of the latest information provided to the Court (13February 2020), the applicant and his wife lived in the house.","6.In June 2012 the State Inspectorate of Territorial Planning and Construction under the Ministry of the Environment (hereinafter \u201cthe Inspectorate\u201d) inspected the applicant\u2019s land and found that the construction had been unlawful. He was ordered to demolish the buildings within six months. That time-limit was extended by three months at the applicant\u2019s request. Subsequently he sought a further extension, but the courts found that there were no lawful grounds for granting it.","7.In September 2013 the Inspectorate instituted proceedings against the applicant before the Kaunas District Court for failure to comply with the demolition order.","8.In his reply to the Inspectorate\u2019s claim, the applicant did not dispute the unlawfulness of the construction, but submitted that he was taking steps to change the status of his land. He argued that there were no trees on the part of the plot on which he had built the house and that it was therefore not justified to classify it as forest land. He contended that if the status of the land was changed, he would be able to obtain a construction permit and legalise the buildings ex post facto (see paragraph 28 below). The applicant also submitted that the house was his only home, he was retired and did not have sufficient funds to acquire a new place of residence.","9.On several occasions in 2013 and 2014 the applicant addressed the public authorities in charge of the supervision and management of forests, asking them to re-assess the boundaries of the forest on his land and to exclude from the forest land category the part on which the house had been built. The authorities refused his requests and stated that the plot had been included in the Register of Forests in 2004 because it had fulfilled the criteria of forest land (see paragraph25 below), as demonstrated by photographic evidence dating from that time. They also noted that unlawful construction on the land did not constitute grounds to find that it was no longer forest land.","10.In November 2014 the Kaunas District Court adjourned the proceedings instituted by the Inspectorate (see paragraph 7 above), on the grounds that the applicant had lodged complaints about the authorities\u2019 refusal to re-assess the boundaries of the forest on his land (see paragraph9 above). The court observed that the latter proceedings were part of the applicant\u2019s efforts to legalise the unlawful construction ex post facto and thus relevant to determining whether the demolition order should be upheld.","11.In March 2015 the Vilnius Regional Administrative Court dismissed the applicant\u2019s complaint about the authorities\u2019 refusal to re-assess the boundaries of the forest (see paragraph 9 above). It held that the status of forest land could be changed only in a limited number of circumstances provided for by law (see paragraph 26 below), which were not present in the applicant\u2019s case. It also observed that the applicant\u2019s advanced age and low income did not exempt him from the obligation to comply with the law. In March 2016 the Supreme Administrative Court upheld that decision.","12.In March 2016 the Kaunas District Court resumed the adjourned proceedings (see paragraph 10 above), but in September 2016 it adjourned them again, on the grounds that the applicant had instituted proceedings seeking to establish a fact of legal significance, namely that his grandfather had owned a homestead on the plot. The court observed that if such a fact was established, it would enable the applicant to legalise the unlawful construction (see paragraph26 below).","13.In December 2016 the Kaunas District Court dismissed the applicant\u2019s request to establish a fact of legal significance (see paragraph12 above). After examining the documents submitted by the applicant and hearing witnesses, the court found that there was insufficient evidence that his grandfather had owned a homestead, or that such a homestead had been located on his plot. In July 2017 the Kaunas Regional Court upheld that decision, and in October 2017 the Supreme Court declined to examine an appeal on points of law lodged by the applicant.","14.In July 2017 the Kaunas District Court resumed the adjourned proceedings (see paragraph 12 above).","15.On 18 October 2017 the Kaunas District Court allowed the Inspectorate\u2019s claim and ordered the applicant to demolish the buildings. It observed that the applicant had built them on forest land, without having changed the status of the land and without having obtained a construction permit (see paragraph 27 below). Furthermore, his subsequent attempts to legalise the unlawful construction ex post facto had been unsuccessful (see paragraphs11 and 13 above). In accordance with the Constitutional Court\u2019s case-law, the prohibition to build on forest land was justified by the importance of forests to the environment, and could not be considered disproportionate (see paragraph30 below). Moreover, an order to demolish a building built in an area where construction was prohibited was necessary in order to protect the environment and to ensure a fair balance between the public interest and individual rights, and thus it could not be considered disproportionate either (see paragraph 31 below). The court ordered the applicant to demolish the buildings within six months, in view of the difficulties which he might face during the autumn and winter. If he failed to do so, the Inspectorate had the right to demolish them at the applicant\u2019s expense.","16.The applicant lodged an appeal against that decision. He submitted that he was retired and in poor health, his wife had cancer, and they had nowhere else to live. He stated that he had built the house on his own land and its presence did not interfere with anybody\u2019s interests, as demonstrated by letters from the local authorities and local residents, expressing their support for him. He argued that the first-instance court had failed to strike a fair balance between his rights and the public interest.","17.On 9 February 2018 the Kaunas Regional Court dismissed the applicant\u2019s appeal. It observed that, in accordance with the domestic case-law, it had to take into account the individual circumstances of the applicant\u2019s situation, such as the circumstances in which the unlawful construction had been carried out; the seriousness of such construction; the reasons for the unlawfulness; its nature and degree; whether the applicant had been aware that his conduct was unlawful and whether he could have any legitimate expectations; the nature and importance of the rights defended by the demolition order; the proportionality of the proposed measure; and whether the applicant would suffer an individual and excessive burden as a result. The court emphasised that the applicant had knowingly built the house without a construction permit (see paragraph27 below), and the fact that he had hoped to be able to legalise it ex post facto could not exempt him from responsibility. The court considered that the obligation to demolish the buildings was proportionate and struck a fair balance between individual rights and the public interest \u2013 in particular, the protection of the environment and rational use of protected areas. In the court\u2019s view, the applicant\u2019s arguments concerning his age and state of health were unrelated to the obligation, provided for by law, to eliminate the consequences of unlawful construction.","18.The applicant lodged an appeal on points of law, in which he raised essentially the same arguments (see paragraph 16 above), but on 27 April 2018 the Supreme Court refused to accept it for examination, on the basis that it raised no important legal issues.","19.On 25 September 2019 the Kaunas District Court, at the bailiff\u2019s request, fined the applicant 80 euros (EUR) for failure to comply with the courts\u2019 decisions (see paragraphs15-18 above). In determining the amount of the fine, the court took into account the applicant\u2019s age, state of health, low monthly income and the fact that it was his first offence of such kind. It emphasised that the payment of the fine did not relieve him from the obligation to comply with courts\u2019 decisions.","20.On 26 November 2019 the Kaunas Regional Court upheld the fine. It observed that the applicant had been aware that his buildings had been constructed unlawfully since June 2012 (see paragraph6 above), and that he had failed to comply with the courts\u2019 decisions for more than a year. During that time he had taken no actions to comply with them and had not indicated any objective circumstances which might have precluded him from doing so. The court also observed that the applicant\u2019s age, state of health and income were relevant only when determining the amount of the fine, but they could not constitute grounds to relieve him from the obligation to comply with courts\u2019 decisions.","21.At the time the latest information was made available to the Court (13February 2020), the house had not yet been demolished."],"182":["1. The applicant, Mr Reuwen Tsion, is an Israeli and Georgian national, who was born in 1968. He was represented before the Court by Ms E. Surguladze, a lawyer practising in Tbilisi.","2. The Government were represented by their Agents, most recently Mr B. Dzamashvili, of the Ministry of Justice.","The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","Criminal investigation and the applicant \u2019 s arrest","4. On 3 April 2009 the Special Operative Department (\u201cthe SOD\u201d) of the Ministry of Internal Affairs launched a preliminary investigation into the illicit production, acquisition and possession of forged banknotes. Officers K.Ch. and G.R. of the SOD (\u201cthe undercover officers\u201d or \u201cthe officers\u201d) \u2013 were ordered to infiltrate the suspected criminal group in order to reveal, document, and stop their criminal activities.","5. On 6 April 2009 the undercover officers and a certain N.Ts. had a meeting with L.B., a person suspected of involvement in criminal activities. The latter promised the officers to provide them with forged banknotes in the amount of 10,000 United States dollars (USD \u2013 approximately 7, 600 euros (EUR)). On the following day L.B. called a meeting with the officers, telling them it was necessary to meet a certain M.K. in order to discuss the deal. As a result, M.K. told the officers that he had been responsible for the contact with individuals possessing the forged banknotes.","6. On 8 April 2009 the undercover officers met L.B. and M.K. and purchased forged USD 100 banknotes amounting to USD 10,000 (approximately EUR 7,600) in total for the price of USD 2,600 (approximately EUR 2,000). L.B. and M.K. noted that they could provide additional sums if needed.","7. On 27 April 2009 L.B. and M.K. met the undercover officers again and sold them USD 29,900 in forged notes (approximately EUR 22,800) for USD 7,500 (approximately EUR 5,700).","8. As is apparent from the case file, all the meetings and telephone conversations were secretly recorded based on a prior judicial warrant. As a result of those recordings it was revealed that M.K \u2019 s brother, K.K., and some other individuals might have formed a larger criminal group connected to the suspected production and selling of forged money. In order to reveal their identity, on an unspecified date a court authorised further tapping of telephones in order to record conversations in the months to follow. It was revealed that a certain V.Kh. (later identified as the applicant \u2019 s brother-in-law) was the person with a direct connection to the source of the forged banknotes. On an unspecified date a judicial warrant to tap V.Kh. \u2019 s telephone conversations was issued to verify those suspicions.","9. On 12 October 2009 M.K. met the undercover officers and showed them a sample of an improved version of a forged banknote, and raised its price owing to the better quality. He noted that he could have provided a large number of forged banknotes, the source of those being \u201csome Jew\u201d who had agreed to deliver as many as needed, on the condition that the transaction took place in Israel. M.K. promised to arrange a meeting with V.Kh. and \u201cthe Jew\u201d in order to discuss the matter. According to the official transcripts of various subsequent telephone conversations between the officers, M.K., and V.Kh., they had discussed the price of the banknotes, whether a prepayment should be made, and the location of the potential transaction, with V.Kh. repeating the unnamed supplier \u2019 s position that the transaction should take place outside Georgia.","10. On 2 November 2009 the meeting between the undercover officers, M.K., K.K., V.Kh., and a certain Rubi \u2013 \u201cthe Jew\u201d referred to in earlier conversations, later identified to have been the applicant \u2013 took place. The meeting was secretly recorded based on a prior judicial warrant. The individuals present at the meeting all discussed the arrangements of a deal, with V.Kh. translating for the applicant. The applicant noted that approximately ten days were needed for the production of forged banknotes in the amount of USD 100,000-150,000 (approximately EUR 76,300 \u2011 114,000), and insisted that the transfer of money should take place outside Georgia, preferably in Israel. He indicated USD 30 (approximately EUR 23) as the price per USD 100 banknote if the handover took place there. As the undercover officers showed reluctance to accept the offer in the absence of guarantees, the applicant offered to put up his new car as a guarantee for the deal. The meeting ended with an agreement to further discuss the arrangements concerning the deal at another meeting.","11. On 11 November 2009 the SOD received information from an anonymous source that M.K., K.K., and L.B. might have forged banknotes on them and in their homes. As a result, the investigating authorities apprehended the people in question in a restaurant near Tbilisi, carried out the search and seizure procedure, and arrested them. Having also been present at the restaurant, the applicant and V.Kh. were likewise searched and arrested. According to the subsequent witness statements given by M.K. and V.Kh., the persons arrested on 11 November 2009 had all met at the restaurant to discuss the logistical arrangements of the deal discussed on 2 November 2009.","12. The \u201carrest and search of a suspect report\u201d of 11 November 2009 drawn up in respect of the applicant indicated that he had been caught in the act of committing an offence. The risk that the suspect would have hidden or got rid of evidence was indicated as the basis for the immediate search. The applicant, who had poor command of Georgian, was assisted by an interpreter during the arrest and personal search. The section of the report related to the search of the applicant \u2019 s person signed by the applicant and the interpreter indicated that the applicant had waived his right to have witnesses present, and had been notified of his right to make objections. The report in question stated that the applicant had been informed of his rights as a suspect, including the right to have access to a lawyer, as well as his right to remain silent to avoid self-incrimination. Neither an explicit waiver of this right nor an objection about an inability to use it was recorded on the relevant document. The search of the applicant \u2019 s person revealed, inter alia, banknotes of different currencies and some brownish substance, later identified as cannabis.","13. On 11 November 2009, immediately following the search of the applicant, as well as that of M.K., K.K., and V.Kh., the police officers drew up a report according to which it had been impossible to search the applicant \u2019 s car owing to falling darkness. It was therefore to be transported to the police station to implement the search measure. The car was searched in the applicant \u2019 s presence, with the assistance of an interpreter that same evening at the police station. The relevant search report showed that the applicant had indicated to the officers the location of the items seized from the car, and had waived his right to have attesting witnesses present, as confirmed by his signature. The report indicated the existence of a real risk of the material evidence being hidden as the grounds for implementing the search. Amongst other things, USD 83,000 (approximately EUR 63,300) was found in the applicant \u2019 s car. The relevant report contained a note signed by the applicant and the interpreter that all the items retrieved from the car had belonged to the former.","14. On the same day the applicant \u2019 s home was searched in the presence of his wife and an interpreter. Among other things, fifty USD 100 banknotes were discovered. On an unspecified date, those banknotes were found to have been forged.","15. On 12 November 2009 the applicant was assigned a lawyer under the legal-aid scheme.","16. On 12 November 2009 a post-search judicial review was carried out. Having regard to the information revealed as a result of the preliminary investigation in respect of the applicant and the other individuals, a judge of a first-instance court declared, by means of a written procedure and without the applicant \u2019 s participation, the results of the search of the applicant \u2019 s person and car to have been obtained in circumstances of urgent necessity, and in accordance with the law. It does not appear that the decisions were served on the applicant.","17. On 13 November 2009 the applicant engaged a lawyer of his own choosing. Subsequently the applicant was charged with the illicit acquisition, possession with an aim of distribution, and distribution of forged banknotes committed as part of a criminal group. He was additionally charged with the acquisition, possession and transportation of illicit drugs. Upon being approached for questioning, the applicant declared that he had been explained his rights in the presence of an interpreter and the lawyer, and while being innocent, he wished to use his right to remain silent.","18. On 2 December 2009 the audio-video recording of the meeting dated 2 November 2009 (see paragraph 10 above) was examined by a certified interpreter who confirmed that V.Kh. had interpreted correctly into and from Hebrew during the meeting of the group.","19. On 4 December 2009 an expert of the Ministry of Internal Affairs issued his findings on the authenticity of the USD banknotes seized from the applicant \u2019 s person and car. It was found that the seals of the relevant containers containing the seized items had been intact. Among the USD 100 banknotes seized as a result of the search of the applicant (see paragraph 12 above) three had been forged. As concerns the money seized from the applicant \u2019 s car (see paragraph 13 above), one hundred and forty-four USD 100 banknotes totalling USD 14,400 (approximately EUR 11,000) had been found forged.","Judicial proceedings","20. On an unspecified date the judicial proceedings commenced against the applicant, L.B., M.K., K.K., and V.Kh. as co-accused before the Khashuri Regional Court. During the trial M.K. and V.Kh. confessed and admitted to various aspects of the accusations against them. M.K. stated \u2013 among other things \u2013 that prior to the discussions of the deal on 2 November 2009 the applicant had personally given a sample forged banknote of USD 100 to him, in the former \u2019 s car, in order to demonstrate the quality of the banknotes the applicant could have provided. It had been based on the assessment of the quality of that banknote by the potential buyers \u2013 later identified as the officers \u2013 that the meeting of 2 November 2009 had been held. V.Kh. stated, among other things, that he had introduced M.K. and the applicant, the latter providing the sample forged banknote at M.K. \u2019 s request. V.Kh. noted that the applicant had stated that the transfer of the order should have taken place outside Georgia. V.Kh. stated that the applicant had never expressed any dissatisfaction with the meeting, or refused to meet the persons involved again.","21. Among other complaints related to the search and seizure measures, as well as the assessment of facts and law, the applicant maintained that the failure to assign him a lawyer on his arrest under the mandatory-assignment rule under Article 81 of the Code of Criminal Procedure had rendered any evidence obtained as a result of such measures inadmissible on account of the violation of procedural law, and the proceedings against him unfair. He maintained that the forged banknotes and the drugs had not belonged to him, and had in fact been planted by the investigating authorities. Furthermore, although he did not deny the fact of having met his co-accused on 2 November 2009, the applicant maintained that he had deliberately proposed unfavourable conditions for the deal so that it would not have materialised but had not left the meeting out of respect for his brother-in-law.","22. On 23 July 2010 the court dismissed the application concerning inadmissibility of evidence on account of the failure to assign him a lawyer under the mandatory rule, stating that the applicant had been notified of his rights, and provided with the assistance of an interpreter, and \u201cthe fact that the search [had not been] attended by a lawyer owing to the implementation of the measure in circumstances of urgency [was] not grounds for declaring the arrest and search reports inadmissible evidence\u201d. As regards the search of the applicant \u2019 s car, the court found that the circumstances of the search, including its implementation after its transport to the police station, did not indicate any grounds for declaring the results inadmissible. The court also responded to the applicant \u2019 s argument concerning the alleged fabrication of evidence that the seals on the relevant containers of the seized evidence had been intact, excluding any such possibility.","23. On 2 August 2010 the Khashuri Regional Court convicted the applicant of the illicit acquisition, possession with an aim of distribution, and distribution of forged banknotes committed as part of a criminal group, and for the acquisition, possession and transportation of illicit drugs. He was sentenced to seventeen years \u2019 imprisonment and to a fine in the amount of 140,000 Georgian laris (GEL \u2013 approximately EUR 64,000). The court found the applicant \u2019 s arguments unconvincing in view of the material available in the case file, including the expert evidence, the recordings of the relevant meetings, and the statements of his co-accused. The applicant appealed on an unspecified date.","24. On 25 July 2011 the Tbilisi Court of Appeal upheld the applicant \u2019 s conviction by the lower court. The court noted that, taking into account all the evidence available in the case file, it could not share the applicant \u2019 s version of the events. The court noted that it could not agree with the applicant \u2019 s complaint that his rights had been violated during the arrest and search of his person, or his car and home, as he had been provided with the services of an interpreter, and he, and his wife in so far as the applicant \u2019 s home was concerned, had signed all the respective reports without objecting to any aspect of the searches in question. The court relied on the respective search and seizure reports, the witness statements of the persons who had carried out the measures in question, and the interpreter \u2019 s statement that he had correctly translated the procedure to the applicant. Therefore, the appellate court concluded, the search and seizure procedures had not been carried out with procedural irregularities \u201cof such a degree which would have called their results into question\u201d. The court further addressed other complaints of the applicant relating to various factual and legal circumstances assessed by the lower court, including that of the fabrication of evidence against him, and found them wholly unsubstantiated in view of the evidence available in the case file.","25. In finding the applicant guilty, the appellate court took into account that the fact of his giving the sample forged banknote to M.K. that was shown to the officers on 12 October 2009, his voluntary participation in the meeting of 2 November 2009, and his willingness to provide a large quantity of forged banknotes to the criminal group had been confirmed by various items of evidence available in the case file, including the secret recordings of telephone conversations and of the meeting of 2 November 2009, as well as various witness statements, including those by M.K. and V.Kh., in addition to those of the officers, implicating the applicant and disproving his version of the events.","26. An appeal on points of law lodged by the applicant was rejected as inadmissible by the Supreme Court on 25 July 2011.","27. On an unspecified date in December 2014 the applicant was pardoned by the President of Georgia, and released from serving the remainder of his sentence.","Relevant domestic law","28. The relevant provisions of the Code of Criminal Procedure (\u201cCCP\u201d, 1998), as in force at the material time, read as follows:","Article 81. Mandatory defence","\u201c1. An authority conducting proceedings does not have a right to accept the refusal of a suspect, accused, or a defendant to have a lawyer assigned [to him or her] if: ...","(c) the suspect, accused, or defendant does not speak the language of the criminal proceedings ...\u201d","Article 83. Decision regarding the appointment and change of a lawyer","\" 1. A suspect and an accused are given time to select and engage a lawyer.","2. If a suspect or an accused is arrested, he or she shall be given an opportunity to select and engage a desired lawyer within six hours of the arrest. ... If one of the grounds provided for in Article 81 of this Code are present at the time of a suspect \u2019 s or an accused \u2019 s arrest, an investigator [and\/or] a prosecutor are not permitted to accept the suspect \u2019 s or the accused \u2019 s refusal to have a lawyer appointed and shall appoint one after the expiration of the above-noted period...\u201d","Article 290. Investigative act conducted with judicial authorisation","\u201c...2. A seizure [and\/or] search ... may be carried out without a judicial warrant in urgent circumstances, on the basis of an order by an investigator or a prosecutor. In such cases a prosecutor shall inform the competent judge ... within twenty-four hours, providing him or her with criminal case file demonstrating the necessity of carrying out the investigative measure in question. Within twenty-four hours of receiving the material the judge ... shall verify whether the measure was carried out in accordance with the law. The [relevant] judge has a right to call the person who had implemented the [measure in question] in order to give explanations. After assessing the materials, [the relevant judge] shall (a) decide to legalise [the investigative measure], or (b) declare it unlawful and order the inadmissibility of the evidence obtained as a result. ...","4. A case is considered urgent when: there is a real risk of the ... evidence of a crime being destroyed or lost; a person is apprehended in flagrante delicto; objects or documents relevant to a case are discovered in the context of another investigative measure (inspection of a crime scene, reconstruction of events, inspection); or it is impossible to issue a judicial warrant on account of the absence of a judge. ...","7. In cases provided for in paragraph 2 of the current Article, no verbatim record of the hearing shall be drawn up. A judge may decide on the application without an oral hearing\u201d","Article 293. Judicial order on the implementation of an investigative act","\u201c... 3. ... [A] decision of a judge regarding the legalisation of the investigative act [carried out without a prior judicial warrant] may be appealed against within seventy-two hours of its [issuance] ...\u201d"],"183":["2.The applicant was born in 1982 and lives in Rivne. She is a registered disabled person with a category 3 disability[1] who lives off her disability pension and child support allowances. She was granted legal aid and was represented by MsN.A.Bukhta, a lawyer practising in Rivne.","3.The Government were represented by their Agent, Mr I.Lishchyna.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.In 2002 the applicant had a son.","6.On 26 May 2006 the applicant married O.L. The couple installed themselves in a flat in Rivne co-owned by O.L. and his mother.","7.In January 2007 the applicant and O.L. had triplets (three girls).","8.In view of the multiple birth, in February2008 the Rivne City Council provided the applicant and O.L. with social housing \u2013 a flat which they could occupy as protected tenants, together with their triplets and the applicant\u2019s son.","9.According to the applicant, her relationship with O.L. gradually deteriorated because he abused alcohol and, under its influence, started arguments, harassed and threatened her and the children, and sometimes resorted to physical violence against her. On various occasions the applicant was so afraid of his violent outbursts that she fled to stay with relatives or acquaintances for periods of time.","10.On 18March 2009 the Rivne regional forensic bureau certified that the applicant had a broken nose and haemorrhages around her eyes. According to the applicant, these injuries were the result of one of her arguments with O.L. It appears from the case file that this incident generated no formal follow-up proceedings.","11.On 13January 2011 an acquaintance of the applicant, S.L., lodged a complaint with the Rivne police, informing them that O.L. had hit the applicant during an argument at home. The police refused to institute criminal proceedings, on the grounds that there was no corpus delicti in O.L.\u2019s actions. That decision was not appealed against.","12.In April 2015 the applicant instituted civil proceedings, complaining that O.L. had not been contributing to meet the financial needs of their children.","13.In June 2015 the Rivne Town Court issued a judgment establishing how much O.L. should pay the applicant in child support.","14.On 10June 2015 the applicant lodged a criminal complaint with the police, informing them that at about 9p.m. on 31May 2015 O.L. had kicked her during an argument at home.","15.On 11June 2015 criminal proceedings were initiated against O.L. under Article125 of the Criminal Code (\u201cthe CC\u201d) in relation to the alleged assault on the applicant.","16.On16June 2015 the Rivne regional forensic bureau certified that the applicant had a subcutaneous haemorrhage on her right thigh.","17.On 23September 2015 the marriage between the applicant and O.L. was dissolved. Custody of all the children was given to the applicant. After the divorce, all the family members and O.L. remained living in the same flat.","18.On 16October 2015 the Rivne police closed the criminal proceedings initiated against O.L. in June because the applicant had withdrawn her complaint. The relevant decision stated that while it appeared that O.L.\u2019s conduct fell within the ambit of Article125 of the CC, in view of the applicant\u2019s decision not to pursue her complaint as the injured party, the case material would be sent to a different police department for a decision on whether O.L. should be charged with an administrative offence. It appears that no further decision was taken in respect of this incident.","19.On 11November2015 the applicant complained to the Rivne police that O.L. had not been paying child support. She presented a certificate from the State Bailiffs Service indicating that O.L. was seven months in arrears with regard to these payments. She alleged that although O.L. was officially unemployed, in fact he regularly performed odd jobs and was concealing his income. On the same date criminal proceedings were instituted in relation to this matter.","20.When questioned by the police (in December 2015), O.L. acknowledged that he had not been paying child support. He explained that he was unable to make the payments which were due as he was unemployed and had no income. He assured the police that he would pay the arrears once he found a source of income and obtained the necessary means. It appears that the proceedings against O.L. were subsequently either closed or abandoned.","21.On 23November 2015 and 2February 2016 the applicant made further calls to the police complaining that O.L. was harassing and mistreating her at their home. In response, the police authorities visited the applicant\u2019s and O.L.\u2019s home and carried out pre-emptive conversations.","22.On 23February2016 the applicant made a further call to the police, complaining that O.L. was behaving aggressively under the influence of alcohol.","23.On 12March 2016 the applicant made a further call to the police, complaining that her husband had been harassing her. This call generated another police inspection and another oral warning for O.L., as indicated in a police report of 16 March 2016.","24.On 18March 2016 the chief of Rivne police decided that O.L.\u2019s actions on 23February 2016 (insulting and threatening the applicant and piercing a blanket with a knife) could be categorised as psychological harassment. He charged O.L. with the administrative offence of domestic violence under Article173-2 of the Code of Administrative Offences (\u201cthe CAO\u201d) and referred the case to the Rivne Town Court. It appears that no further decision was taken in respect of this police report.","25.On 14 March 2016 the applicant complained to the Rivne municipal family, child and youth welfare service (\u201cthe family welfare service\u201d) that her husband frequently acted abusively under the influence of alcohol, and she solicited their help in finding a structured solution.","26.Between 14 and 22March 2016 a group of people from the family welfare service conducted an assessment of the needs of the applicant\u2019s family, during which they visited her flat and interviewed the triplets. According to the interview records, one of the girls stated that she loved both her parents, yet she was very distressed when her father came home drunk and became involved in arguments with her mother. Another girl stated that she had no respect for her father and hated it when he came home drunk. The third girl stated that she loved her mother, and she attempted to avoid speaking about her father. According to further records, the social workers were unable to interview O.L., as he was not at home during their visits. Their attempts to set up a separate appointment with him failed, as he either did not pick up the telephone or refused to meet the social workers, saying that he was very busy at work. As a result of the assessment, the welfare service drafted a report indicating that the children had generally been provided with the conditions necessary for their upbringing. However, their father neglected his parental responsibilities and engaged in violent arguments with the mother, which was intimidating and distressing for the children. The applicant was offered counselling support, which she declined at that time.","27.On 24 March 2016 the family welfare service asked the police to follow up on the applicant\u2019s family situation, in particular by having a pre-emptive conversation with O.L. and identifying whether there were any grounds for prosecuting him for domestic violence.","28.On 5 April 2016 a police inspector who had been assigned that task reported that he had not been able to reach O.L. to schedule a meeting.","29.In April 2016 staff members from the triplets\u2019 primary school \u2013 the principal, the school psychologist and the girls\u2019 class teacher \u2013 reported to the welfare service that the girls had generally integrated well into their school and social life. However, their home environment was distressing. The girls reported that their parents argued often. They enjoyed a good and trusting relationship with their mother and maternal relatives. As regards their father, they reported difficulties in trusting him, and felt that he often paid little attention to matters relating to them. They regularly saw him under the influence of alcohol, and were scared of his appearance and his unpredictable and sometimes violent conduct. The staff members were unaware of any incidents where the girls had been physically ill-treated by their father. However, they considered that the combination of his disengaged attitude and aggressive outbursts towards the mother had led to the girls being victims of \u201cpsychological ill-treatment\u201d.","30.On 13April 2016 the applicant lodged a fresh complaint with the police, alleging that at about 10p.m. on that date O.L. had had a new violent outburst: he had sworn at her, and had threatened and pushed her.","31.On 18April 2016 the Rivne regional forensic bureau certified that the applicant had haemorrhages on her right wrist, arm and leg, and a sprain of the aponeurosis in her right foot.","32.On 5July 2016, with respect to his conduct on 13April2016, the Rivne Town Court found O.L. guilty of an act of domestic violence within the meaning of Article173-2 of the CAO. O.L., who took part in the hearing, acknowledged that he was guilty of the offence in question. The court also decided that O.L. could be relieved of formal liability for the offence and given only an oral reprimand, in view of the fact that the applicant had asked for this, as the parties had already resolved their differences.","33.In the meantime, on 22June 2016 the applicant had instituted civil proceedings in the Rivne Town Court, seeking to evict O.L. from their flat. Referring to Article116 of the Housing Code, she alleged that living with him was impossible, as he was systematically abusing alcohol, mistreating, threatening and harassing her and the children, disrespecting their interests and having violent outbursts. Continuing to live with him would mean that she and her children, who were minors, would be at constant risk of being subjected to psychological harassment and physical violence. The applicant also argued that eviction would not place O.L. in a precarious situation, as he and his mother co-owned a flat in the same town.","34.During the hearings concerning the eviction claim, three witnesses (the applicant\u2019s sister and two friends) who were questioned by the court confirmed the applicant\u2019s version of events and testified that O.L. had been abusing alcohol and mistreating his former spouse and children. In contrast, three other witnesses (O.L.\u2019s brother and two people who were either his friends or relatives) suggested that the arguments had been caused by the applicant, who wanted to get rid of O.L. in order to gain full control of the flat. These witnesses also alleged that O.L. cared about the children and was a thoughtful father.","35.In support of his case, O.L. also submitted two character references. The first one was from the management body of the building in which his and the applicant\u2019s flat was located. This reference indicated that no complaints against him had ever been lodged by any building residents. The second was from a limited liability company called R., which indicated that O.L., one of their independent contractors, was highly esteemed as a diligent construction worker and a good team member.","36.The applicant adduced documents concerning all her previous complaints of harassment and violence, and a new certificate from the State Bailiffs Service indicating that O.L. was at the material time eighteen months in arrears with regard to his child support payments.","37.On 4April 2017 the Rivne Town Court allowed the applicant\u2019s claim and ordered O.L.\u2019s eviction. In its judgment, the court noted, in particular, as follows:","\u201c... The court, having heard the [parties and their representatives], [and] the witnesses ..., [and] having examined the written evidence, has come to the following [conclusions]:","...","... the respondent abuses alcohol, constantly makes scenes and causes arguments, [and] intimidates [the applicant] in the presence of the children. [The respondent] behaves aggressively, [and] threatens the claimant with physical violence. [The claimant], along with her children, who are minors, has sometimes been forced to sleep at her acquaintances\u2019 homes, as she has been afraid to stay at home with the respondent. The claimant has repeatedly appealed to the law-enforcement bodies for the protection of her rights and those of her minor children. ... The respondent was subjected to ... measures to correct his behaviour in the form of pre-emptive conversations and warnings concerning the unacceptability of domestic violence, and a decision of the Rivne Town Court of 5 July 2016 found [him] guilty of an administrative offence under Article 173-2 [of the CAO]. The respondent was also prosecuted under Article 125 [of the CC] for a criminal offence, for inflicting minor injuries on the claimant.","The above measures to correct [the respondent\u2019s] behaviour did not bring about the desired result ...\u201d","38.O.L. appealed. He argued that the applicant had been causing arguments in order to separate him from the children and obtain pecuniary benefits from the flat. For the same reason, she had been exaggerating the situation and submitting vexatious complaints containing accusations which were not supported by evidence. Moreover, Article116 of the Housing Code provided for the eviction of a resident whose misconduct was systematic, where less stringent measures in respect of that resident had proved to be ineffective. In his case, there was no evidence of systematic misconduct and several witnesses had testified in his favour. While some fights had taken place occasionally, all the evidence against him pertained to either 2011 or 2015-16. No fresh evidence of any arguments between him and his former spouse had been provided. As regards the flat which he co-owned, that flat was occupied by his mother and his brother\u2019s family, and there was therefore no room for him.","39.On 14June 2017 the Rivne Regional Court of Appeal quashed the Town Court\u2019s judgment and dismissed the applicant\u2019s claim, finding that there were no grounds for applying such a radical measure as eviction, and that the conditions required by Article116 of the Housing Code had not been fulfilled. The relevant part of the court\u2019s ruling reads as follows:","\u201cIt is apparent from the case-file material that on a number of occasions the applicant called the police to her home address and accused the defendant of having committed unlawful acts in respect of her and in respect of her family members; however, it has not been demonstrated that [O.L.] systematically breached the rules on living together and was found liable [on this account].","...","Of and by itself, addressing the competent authorities with complaints concerning a breach of the rules on living together, without those authorities applying measures to correct the behaviour of the [guilty] party concerned, is not grounds for eviction.","Having evaluated every piece of evidence separately and jointly, the judicial panel concludes that the evidence provided by the parties demonstrates the existence of hostile, conflictual relations between the former spouses.","In such circumstances, the judicial panel considers that the grounds for applying such an extreme measure as eviction in respect of the defendant are insufficient. At the same time, the judicial panel considers it necessary to warn [O.L.] that he needs to change his attitude towards the rules on living together with the members of his family [after the divorce]. ...\u201d","40.The applicant appealed on points of law. In particular, she argued that O.L. had already been found guilty of domestic violence in administrative proceedings, and had been prosecuted under Article125 of the CC for a criminal offence for having assaulted her. She argued that O.L. had not corrected his conduct or attitude, and that living with him exposed her and the children to a considerable risk of harassment and violence. She also reiterated that he had another dwelling available.","41.On20August 2018 the Supreme Court dismissed the applicant\u2019s appeal on points of law, endorsing the findings of the Court of Appeal.","42.On 11October 2018 that decision was sent to the applicant by post.","43.On 28 May 2019 the applicant, O.L., their daughters and the applicant\u2019s son were granted ownership of the family flat under the national scheme allowing protected tenants to become the owners of their residences.","44.At present, all of them still share the flat.","45.In December 2019 the applicant filed a fresh criminal complaint against O.L. concerning a further violent outburst.","46.On26 November 2019 the applicant also initiated proceedings to deprive O.L. of his parental rights over their triplets, alleging that he systematically neglected their needs and avoided paying child support. Those proceedings are currently ongoing."],"184":["2.The applicants, a mother and two daughters, were born in 1981, 2005 and 2006 respectively and live in Warsaw. They had been granted legal aid and were represented by Ms M. G\u0105siorowska, a lawyer practising in Warsaw.","3.The Government were represented by their Agent, MrsJ.Chrzanowska, and subsequently by Mr J.Sobczak, of the Ministry of Foreign Affairs.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The first applicant, her partner J.F. and the second and third applicants lived in Spain and only occasionally returned to Poland. One such occasion was in December 2008.","6.On 7 January 2009 J.F. went to the local police station in relation to a summons that he had received. On the same date he was detained pursuant to a wanted notice issued by the Warsaw District Court in order to serve a forty\u2011day prison sentence for failing to pay a fine imposed on him (zast\u0119pcza kara pozbawienia wolno\u015bci). J.F. signed a record of the arrest in which it was stated that he was healthy and had no visible injuries. He was placed in Warsaw-Groch\u00f3w Remand Centre, where he remained until 15January 2009.","7.On 7 January 2009 J.F. began serving a forty-day prison sentence in Warsaw-Groch\u00f3w Remand Centre. On his arrival he confirmed that he had been a cocaine user and was a heavy drinker. He also stated that he had high blood pressure but had not recently received treatment for it. It was further noted that he was 175cm tall and weighing 140kg.","8.During a medical examination carried out on the same day, he confirmed that he had received treatment for diabetes, and had had two heart attacks. The prison doctor noted in his medical records: \u201cno ailments; drug addiction since ten years; was not beaten; does not report any surgeries; treats hypertension with Prestarium; obesity; no significant changes during a [medical] examination\u201d. He further prescribed him medicine in order to lower his blood pressure and ordered a consultation with a specialist in internal medicine.","9.On 12 January 2009 J.F. had a chest X-ray, which showed that his heart was enlarged and that he had pulmonary hypertension and symptoms of venous stasis. The radiologist who performed the chest X-ray recommended that J.F. consult a specialist in internal medicine.","10.On 13 January 2009, during a consultation with a psychologist, J.F. said that he was sleeping and eating reasonably well.","11.On 14 January 2009 J.F. informed the nurse that he had sleeping problems and slept during the day. On the same day he was examined by the prison doctor, who noted that his breathing and circulation were fine. His blood pressure was 145\/80 and he had a heart rate of 70.","12.On 15 January 2009 the nurse informed the prison doctor of J.F.\u2019s worsening state of health. On the same day he was taken to the emergency department of the Central Clinical Hospital of the Ministry of the Interior and Administration in Warsaw (Oddzia\u0142 Ratunkowy Centralnego Szpitala Klinicznego MSWiA) (\u201cthe Clinical Hospital\u201d), where examinations were carried out; he was then transferred to the Institute of Cardiology in Anin. An aneurysm was found in his thoracic aorta. On the same day he urgently underwent surgery.","13.On 16 January 2009 the Warsaw District Court released J.F. from pre-trial detention on health grounds. On the same date the Warsaw Regional Court granted him leave from serving his sentence (przerwa w odbywaniu kary) and ordered his immediate release. The courts noted that J.F. was in intensive care, on circulatory and respiratory support, and that his medical prognosis was uncertain.","14.On 17 January 2009 J.F. regained consciousness. As he was suffering from respiratory insufficiency, he was put on a ventilator.","15.On 22 January 2009 he underwent further surgery. However, he was still suffering from renal and cardiac insufficiency. On25January2009 he died at the Institute of Cardiology.","16.On 16 December 2009 the applicants lodged a civil action for compensation and an annuity from the State Treasury by bringing a claim against the Director General of the Prison Service. They complained that J.F. had died in custody on 25 January 2009 as a result of inadequate and belated medical assistance and inadequate conditions of detention. They further noted that given his general state of health, he should not have been detained.","17.During the proceedings, the Warsaw Regional Court ordered an expert opinion. The expert (a specialist in internal medicine) stated in his opinion of 30 January 2013 that the information on J.F.\u2019s state of health included in his medical records from Warsaw-Groch\u00f3w Remand Centre was scarce. The records did not contain any information about J.F.\u2019s condition before his arrival at the Remand Centre. There was no medical documentation confirming that he had had two heart attacks and had been diagnosed with diabetes. The expert confirmed that J.F. had clearly been treated for hypertension. In his view, the condition suffered by him \u2013 an aneurysm and consequently aortic dissection \u2013 could have been caused by many years of inaptly treated chronic hypertension and using cocaine.","18.The expert concluded that it was not possible to assess the quality of the medical care provided to J.F. in prison on the basis of his medical records. There was no information on whether he had received and taken any medication, or about the monitoring of his arterial hypertension. There was no indication if he had reported the deterioration of his state of health or whether his transfer to the emergency department of the Clinical Hospital had resulted from a sudden deterioration in his health or whether it had been a consequence of the chest X-ray conducted on 12January2009.","19.On 28 August 2014 the expert submitted a supplementary opinion. On the basis of medical records from Costa Del Sol Hospital in Spain, the expert confirmed that J.F. had been treated for hypertension and dilated cardiomyopathy, a condition most often caused by excessive drinking. The expert also reiterated that it was impossible to determine J.F.\u2019s state of health during the first days of his detention, given the scarce prison medical records. Most probably, J.F. had not consulted the prison doctor as he had not complained of any specific health issues.","20.The Warsaw Regional Court also heard evidence from a number of witnesses, including J.M., who had been J.F.\u2019s cellmate. He stated that J.F.\u2019s health had steadily worsened and that he had probably only been given vitamins. He also stated that there had been overcrowding and inadequate living conditions in Warsaw-Groch\u00f3w Remand Centre. However, according to the court, the credibility of the statements given by J.M. was not supported by any other evidence.","21.On 30 March 2015 the Warsaw Regional Court gave judgment and dismissed the applicants\u2019 claim. The court found that there had been no medical negligence in the case concerned. It held, referring to the expert\u2019s opinion that, J.F.\u2019s heart had been damaged as a consequence of his lifestyle and inaptly treated diabetes and hypertension. As confirmed by the medical records from the Spanish hospital, J.F. had taken his medication irregularly, had been a heavy drinker and a smoker. In the expert\u2019s opinion, J.F.\u2019s death could have happened outside the prison facility as the aortic aneurysm had occurred suddenly. Previous heart examinations had not disclosed this condition. In any event, given the patient\u2019s obesity, diagnostic had been very difficult.","22.The court dismissed the applicants\u2019 claim under Article 445 of the Civil Code (for the protection of J.F.\u2019s personal rights) on the grounds that they had no legal standing. Under that provision, aclaim for compensation passed to the heirs only if it had been acknowledged in writing or if the court action was brought when the party was still alive.The court noted that, under Article 446 \u00a7 3 of the Civil Code, relatives of a deceased could be awarded appropriate compensation if their situation had significantly deteriorated as a result of the person\u2019s death. However, in the present case, as the State Treasury could not be held responsible for J.F.\u2019s death, compensation could not be awarded.","23.The court established that J.F. had received adequate medical care in the Remand Centre. He had been examined by a doctor on his arrival, and shortly afterwards had undergone an X-ray examination. Every day a nurse had come to give him medication for his hypertension. Moreover, at the time of his arrival J.F. had not informed the prison authorities of any pains or other health issues which would have been incompatible with his detention. He had not had any medication or medical documentation on him. The court considered that J.F.\u2019s illness had not been caused by the conditions of his detention. There was therefore no causal link between his death and the conditions of detention.","24.The applicants appealed against this judgment. In their appeal, they submitted that the first-instance court had not justified why it had disregarded the statements given by J.M. They also claimed that the Regional Court had not analysed the actions taken by Warsaw\u2011Groch\u00f3w Remand Centre in detail and had considered uncritically that the check\u2011ups done in the prison facility had been appropriate. Lastly, they were of the view that the first-instance court had violated the provisions of the Convention by finding that the State Treasury could not be held responsible for J.F.\u2019s death.","25.On 7 October 2016 the Warsaw Court of Appeal dismissed the applicants\u2019 appeal. The court agreed in principle with the Regional Court\u2019s findings of fact and conclusions. It further held that the acts of the medical staff in the prison facility fell under the State\u2019s liability in tort. Nevertheless, in the case concerned those acts had been conducted in accordance with the law and the applicants had not proven a causal link between them and J.F.\u2019s death. In particular, as established by the expert, there had been no irregularities in the course of his medical diagnosis and treatment. It had not been shown that an earlier chest X-ray would have enabled detection of the aneurysm. The judgment was final as a cassation appeal was not available.","26.On 21 October 2009 the applicants lodged a criminal complaint with the Minister of the Interior complaining about J.F\u2019s arrest on 7January2009. They submitted that since J.F. had been of poor health, had suffered from a serious heart condition and had had two heart attacks, he should not have been detained and sent to prison on that date.","27.On 11 December 2019 the Warsaw District Prosecutor refused to open an investigation. The prosecutor noted that at the time of his arrest J.F. had not complained of any health problems or had any injuries. Moreover, the arrest had been ordered in accordance with the law. On the date of his arrest J.F. had been transferred to the Remand Centre. According to the record of the arrest drawn on the same day J.F. had not informed the police officers of any health issues.","28.This decision was served on the applicants on 21December 2009. They did not lodge an appeal within the prescribed time\u2011limit of seven days."],"185":["2.The applicant was born in 1954. The applicant, who had been granted legal aid, was represented by Ms L. Horvat, a lawyer practising in Zagreb.","3.The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.On 20 May 2007 the applicant\u2019s daughter and son-in-law died in a car accident. The couple\u2019s daughter N.G., who was a five-month-old baby at the time, was also injured in the accident.","6.Following the death of her parents, on 24 May 2007 the local Social Welfare Centre gave provisional custody of N.G. to her uncle (her father\u2019s brother).","7.Soon afterwards a family dispute arose over custody of N.G., including issues of where she should live and with whom she should have contact. Paternal and maternal family members took up opposing sides. The dispute resulted in several sets of administrative proceedings before the Centre (first the D.S. and then the K. Social Welfare Centre; hereinafter \u201cthe Centre\u201d) and the Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi, hereinafter \u201cthe Ministry\u201d), and judicial proceedings before the relevant courts.","8.On 22 January 2009 the Centre gave custody of N.G. to her uncle but, upon an appeal by the applicant\u2019s family, on 26 February 2009 the Ministry quashed this decision and remitted the case to the Centre.","9.In the resumed proceedings, on 20 October 2010 the Centre again gave custody of N.G. to her uncle, and this decision was upheld by the Ministry on 24 February 2011. According to the information available to the Court, on 28 March 2011 the applicant\u2019s family challenged this decision in the relevant administrative court.","10.Owing to its tragic circumstances, the accident itself and the ensuing family dispute attracted significant media coverage.","11.In the context of such media interest, the applicant was interviewed in an article of 14 November 2007 in Jutarnji list (a newspaper with national coverage) in which she discussed the circumstances in which the Centre had granted custody of N.G. to her uncle and how that decision had been quashed by the relevant court. She also explained that the proceedings concerning contact rights were ongoing before the court. The information which the applicant provided was confirmed by the Centre\u2019s director, who also stated that the Centre had unsuccessfully sought to reconcile the views of the two families. The name of the child was explicitly mentioned by both the applicant and the Centre\u2019s director.","12.On 10 April 2008 a television show (Provjereno), which was broadcast on a private television channel with national coverage, discussed the case in detail. It contained interviews with neighbours of the deceased couple who spoke about how they had felt upon learning of the tragic accident in which the couple had died. The television report also discussed the fact that custody of N.G. had been granted to the father\u2019s family and how the mother\u2019s family could not accept that. N.G.\u2019s name was explicitly mentioned by the journalist in that report. Part of the television report was filmed on the premises of the Centre. During the report, the Centre\u2019s director talked about the details of the circumstances in which the initial custody order had been made (see paragraph 6 above), and explained that it was being challenged on appeal. The director also expressed her views on what would be the best solution as regards custody rights.","13.On 16 March 2010 an article was published in Ve\u010dernji list (a newspaper with national coverage) in which the applicant contended that the child had been given to her uncle without anybody even consulting the applicant or her family. The article further suggested that the applicant and her family had managed to have the case transferred to the K. Centre owing to a fear that the D.S. Centre which had initially dealt with the case had lacked impartiality. It also suggested that the applicant and her family had undergone a psychiatric assessment in respect of their suitability to participate in the child\u2019s upbringing. The K. Centre declined to comment on the case.","14.In a further article of 18 March 2010 in Jutarnji list, the applicant contended that she suspected that various \u201cconnections\u201d had been instrumental in the D.S. Centre\u2019s adoption of the decision in favour of the uncle. She also pointed to the findings of an expert report produced by Z.K., according to which custody of the child should be granted to the applicant\u2019s family. In the same article, the D.S. Centre explained how the proceedings had been transferred to the K. Centre, which refused to comment on the case. N.G.\u2019s uncle also declined to comment on the case.","15.On 7 April 2010 a television show (Proces) was broadcast on the national television channel (HRT) in which the applicant took part, together with her other daughter, D.\u0160., and her husband. During the interview, a bundle of papers could be seen in front of them. The applicant and D.\u0160. raised various issues regarding the alleged malfunctioning of the social welfare system, including the relevant court proceedings concerning custody of N.G. and contact rights in respect of her. The applicant\u2019s husband did not speak. Further explanations about details of the case were provided by the journalist. Part of the television report was filmed on the premises of the Ministry, where a senior official was interviewed about the relevant procedures to be followed in cases such as the one in question.","16.The relevant parts of the television report contain the following scenes:","-While the journalist discusses details of the Centre\u2019s failure to follow the relevant procedures, a scene shows, in focus, the introductory and operative parts of a decision of the Ministry of 22 February 2009 by which a decision of the K. Welfare Centre of 22 January 2009 on custody rights over N.G. was quashed and remitted for further examination. No details of the reasoning are shown. It is also not possible to see whether somebody is holding or showing the document. The name of the child is visible;","-In the next scene, the journalist speaks about misgivings that the applicant\u2019s family members have as to the reasons why the Centre decided in favour of the uncle. At one point during the journalist\u2019s speech, the camera briefly scrolls through the reasoning of a decision, from which the name of the child and her uncle can be discerned, as well as the fact that the uncle was granted custody rights and the applicant\u2019s family lodged an appeal. It is not clear which decision was filmed nor is it possible to see whether somebody is holding or showing the document;","-In a later scene, the applicant is seen opening a file and touching a document, but it is not possible to see anything specific on the documents in the file;","-The report then goes back to the Ministry\u2019s premises. In the introduction to this scene, the journalist states that the Ministry is aware of the Centre\u2019s mistakes but cannot provide further details, as the case is confidential. The senior Ministry official is then shown reading some documents from a file, and she again explains the relevant procedures;","-The report further refers to the psychiatric assessments that the families underwent. While the journalist speaks, the operative part of a decision on the award of custody rights to the uncle is seen in focus. It is not clear which decision this is, nor can it be seen whether somebody is holding or showing the document. A pen is also shown, in focus, going through a psychological assessment favourable to the applicant, and in the next scene the signature of Z.K., the expert, assisted by L.B., another expert, is shown in focus. It is not possible to see who is holding the pen.","17.Following the broadcast of the Proces television show, N.G.\u2019s uncle lodged a criminal complaint against the applicant and D.\u0160. with the relevant State Attorney\u2019s Office (Op\u0107insko dr\u017eavno odvjetni\u0161tvo), alleging that they had breached the confidentiality of the administrative proceedings before the Centre, in particular by disclosing N.G.\u2019s full identity.","18.On 31 August 2011 the State Attorney\u2019s Office indicted the applicant and D.\u0160. on charges of breaching the confidentiality of the administrative proceedings, in relation to the applicant\u2019s disclosure of N.G.\u2019s identity in the Proces television show. The indictment read as follows:","\u201cOn an unspecified day in April 2010 ..., in front of the S.K. restaurant, while filming a report for the Proces television show on HRT, broadcast on 7 April 2010 at 9.50 p.m., [and] although aware that the administrative proceedings before the K.Welfare Centre concerning custody of N.G. were confidential, while speaking about the course of the proceedings,[and while] a decision of the K. Welfare Centre adopted in the proceedings in question was shown on the television camera, depicting N.G.\u2019s name, which made her identity known to the general public,","[The applicant], the first person accused, and D.\u0160., the second person accused, disclosed without authorisation what they had learned in the administrative proceedings, which, according to the law, is considered to be confidential.,","and thereby they committed a criminal offence against justice \u2013 breaching the confidentiality of proceedings \u2013 punishable under Article 305 \u00a7 1 of the Criminal Code.\u201d","19.The case was initially examined by the Zlatar Municipal Court (Op\u0107inski sud u Zlataru, hereinafter \u201cthe Municipal Court\u201d), which issued a penalty notice (kazneni nalog) on the same day without holding a hearing, finding the applicant and D.\u0160. guilty as charged and sentencing them to two months\u2019 imprisonment, suspended for a year.","20.The applicant and D.\u0160. challenged that decision and the case was forwarded to the Zagreb Municipal Criminal Court (Op\u0107inski kazneni sud u Zagrebu, hereinafter \u201cthe Municipal Court\u201d) for trial.","21.At a hearing on 13 April 2012 the applicant pleaded not guilty, as did D.\u0160. The trial court allowed a request by the prosecution for D.G. to be questioned. The defence proposed that the court review the Proces television report and question its editor, journalist and cameraman in order to ascertain whether the applicant and her daughter could have influenced what would be filmed and later shown in the report. The trial court agreed to review the television report and reserved its decision on hearing witnesses, asking the defence to provide further contact details for these persons.","22.A further hearing was held on 17 May 2012. The record of the hearing indicated that N.G.\u2019s uncle, who was also her legal guardian, attended the hearing as a victim and a witness. During the questioning he stated that in the Proces television show the applicant and her daughter had shown documents related to N.G.\u2019s custody taken from a set of proceedings which had in the meantime become final. He also pointed out that the name of the child had been visible on those documents, although the officials of the relevant welfare centre had informed the applicant and her daughter several times that the public was excluded from the proceedings.","23.At the same hearing the defence reiterated their request for the editor and journalist of Proces to be heard, providing further contact details for these witnesses. The trial court refused that request on the grounds that their evidence was irrelevant to the subject matter of the proceedings. However, of its own motion, it decided to ask the K. Centre to provide its file on the case concerning N.G.\u2019s custody rights.","24.At a hearing on 19 July 2012 N.G.\u2019s uncle was present as the victim. At the hearing the trial court inspected the file of the K. Centre and other documents in the file. It also reviewed the disputed television report.","25.The defence again reiterated their proposal that those responsible for preparing the television report be heard, and also asked that the applicant\u2019s son and husband, both of whom had been present during the preparation of the report (the latter could be seen in the report, whereas the son did not appear on camera, see paragraph 15 above), be heard as witnesses. The defence argued that they could provide evidence about the circumstances in which the Centre\u2019s decision had appeared in the report, including evidence about the journalists\u2019 awareness that the name of the child should not be disclosed. The defence also argued that the applicant\u2019s son and husband could give evidence as to the question of whether the accused had warned the journalists that the child\u2019s name should not be disclosed. The defence further asked that the court review the Provjereno television show, which would confirm that the Centre\u2019s director had already disclosed the main information about the proceedings, which had confused the accused as to the extent of the information they could provide.","26.The trial court dismissed all the proposals of the defence on the grounds that all relevant facts had already been established. It then proceeded to hear the applicant\u2019s and her daughter\u2019s defence and the parties\u2019 closing arguments.","27.In her defence, the applicant argued that she had had no intention to disclose the documents or N.G.\u2019s name in public. She explained that she had simply had the documents with her in order to demonstrate how many things had gone wrong in the proceedings. However, the details of the case had already been disclosed earlier by the Centre\u2019s director, who had participated in another television show. The applicant stressed that she had not shown the documents to the camera and she had warned the journalist not to disclose the child\u2019s name, which he had promised not to do. In this connection, she explained that during the proceedings before the Centre she had not been warned that the proceedings were confidential but her lawyer had warned her that she should not disclose the identity of the child. The applicant also explained that the documents had been brought to the place where the report had been filmed by her son, who had been the person who had arranged for them to participate in the television report. The applicant also pointed out that she had shown one of the documents to the journalist simply to confirm what she had been saying, but he had not been able to see the child\u2019s name. She also explained that she and her daughter had not always been at the place where the report had been filmed, so it was possible that the camera had recorded the document without their knowledge. Moreover, the applicant suspected that the document could have been shown by the State official who had taken part in the show.","28.Following the hearing on 19 July 2012, the Municipal Court found the applicant and her daughter guilty as charged (see paragraph 18 above) and sentenced them to four months\u2019 imprisonment, suspended for two years. It also ordered each of them to pay 1000 Croatian kunas (HRK \u2013 approximately 130 euros (EUR)) for costs and expenses incurred in the proceedings.","29.The Municipal Court started its judgment by explaining that it had dismissed the request by the defence to hear the journalists who had prepared the television report on the grounds that the recording of the report clearly showed that the applicant had had a bundle of documents in front of her and had displayed one of those documents while discussing the course of the administrative proceedings with the journalist. In the Municipal Court\u2019s view, in criminal proceedings, it was very rare to have such clear evidence showing that a criminal offence had been committed.","30.The Municipal Court further found it established that the applicant had clearly known that the public had been excluded from the administrative custody proceedings before the Centre. In particular, that was indicated by several transcripts of the proceedings in which it was clearly stated that the public was excluded from the proceedings. Moreover, the applicant had admitted that her lawyer had advised her that the name of the child should not be disclosed. For the Municipal Court, the circumstances in which the television report had been filmed \u2013 in particular the fact that the applicant had described the course of the administrative proceedings to the journalist and had even shown a document on that occasion, after which another document from the administrative proceedings with N.G.\u2019s name on it could be seen in focus \u2013 left no doubt that she had acted knowingly and deliberately when disclosing the circumstances of the administrative proceedings at issue.","31.The Municipal Court did not accept the applicant\u2019s defence that the fact that the Centre\u2019s decision had been shown was the responsibility of the journalists. It stressed that the applicant bore responsibility for making the documents from the administrative proceedings available to the journalists, and that the journalists could not have known that the public had been excluded from the proceedings. For the Municipal Court, there was no logical explanation other than that the applicant (and her daughter) had provided to the journalist and the cameraman the document containing the child\u2019s name. Although the Municipal Court could not exclude the possibility that the applicant had asked the journalists not to disclose the child\u2019s name, it stressed that it was the applicant herself who had failed to observe that duty. Moreover, according to the Municipal Court, she had had a motive to do that, as she had wanted to influence the development of the administrative proceedings at issue.","32.The Municipal Court also stressed that it could not accept the applicant\u2019s arguments that she had not known that information about the administrative proceedings should not be made available to the public because the relevant information had already been disclosed. In the Municipal Court\u2019s view, if the applicant had believed this to be the case, then she would not have advised the journalists that the proceedings were confidential, as she claimed to have done.","33.In sum, the Municipal Court considered that by disclosing what had happened in the administrative custody proceedings and the child\u2019s name, the applicant had committed the criminal offence under Article 305 \u00a7 1 of the Criminal Code, taken in conjunction with Section 271 of the Family Act. When deciding on the sanction, the Municipal Court stressed that the applicant was not a problematic person in any sense, and that this was an isolated incident in her otherwise law-abiding life. However, the Municipal Court considered as an aggravating factor the fact that the offence had been committed to the detriment of her granddaughter, whose interests she was obliged to protect. In this connection, the Municipal Court stressed that although the applicant had intended to protect the interests of her granddaughter, she had chosen the wrong way to do it (commission of a criminal offence).","34.The same findings described above were accordingly applied to the applicant\u2019s daughter, who had participated in the disputed television show with the applicant.","35.The applicant challenged that judgment before the Zagreb County Court (\u017dupanijski sud u Zagrebu, hereinafter \u201cthe County Court\u201d). She argued, in particular, that the Municipal Court had failed to take into account the context and background of the case, and had failed to establish the circumstances related to the fact that the public had known about the relevant information before it had been disclosed in the disputed television report. She also argued that the Municipal Court had failed to establish the circumstances in which the Centre\u2019s report had been shown in the television report.","36.On 8 January 2013 the County Court dismissed the applicant\u2019s appeal as unfounded, endorsing the findings of the Municipal Court.","37.The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining, inter alia, of a breach of her right to a fair trial under Article 6 \u00a7\u00a7 1 and 3 (d) and freedom of expression under Article 10 of the Convention, and the corresponding Articles 29 and 38 of the Constitution (see paragraph 39 below). She argued that the proceedings before the Municipal Court had fallen short of the requirements of a fair trial, owing to the fact that all her proposals to examine evidence had been dismissed. In connection with her complaint under Article 10 of the Convention, the applicant argued that she had been unjustifiably prevented from discussing the matters related to the custody proceedings concerning her granddaughter N.G. Relying on the Court\u2019s case-law, she contended that her criminal conviction had not pursued any legitimate aim and had not been lawful, as the provision of Article 305 \u00a7 1 of the Criminal Code had not been sufficiently clear and foreseeable.","38.On 25 April 2013, by means of a summary reasoning, the Constitutional Court endorsed the reasoning of the lower courts and declared the applicant\u2019s constitutional complaint inadmissible as manifestly ill-founded, on the grounds that there was nothing disclosing an issue of a breach of her rights."],"186":["2.The applicant was born in 2004 and lives in Eboli. She was represented before the Court by Mr A. L. (her father) and Ms M.E. D\u2019Amico, a lawyer practising in Milan.","3.The Italian Government (\u201cthe Government\u201d) were represented by their former Agent, Mrs Spatafora, and her former coagent Mrs M. E. D\u2019Amico, a lawyer practising in Milan.","4.The applicant was diagnosed with non-verbal autism.","5.On account of her disability, when she started nursery school in 2007 she received learning support for 24 hours a week from a support teacher with specialised assistance, in accordance with section 13 of Law no.104 of 1992.","6.The specialised assistance service is aimed at helping children with disabilities to develop their autonomy and personal communication skills and to improve their learning processes, their relationships with others and their integration at school, so that they do not become marginalised. Thus the specialist assistant was responsible for improving the applicant\u2019s integration and socialisation at school and in the classroom, as well as her autonomy (see paragraph 18 below).","7.During her first year at primary school (2010-2011) the applicant was no longer in receipt of such specialist assistance. At the end of the school year it was decided that she should repeat the preparatory class (\u201cCP\u201d).","8.On 10August 2011, in advance of the new school year, the applicant\u2019s parents requested that the Eboli municipality ensure that their daughter received the specialist assistance provided for in section 13 of Law no. 104 of 1992. Having received no reply from the municipal authorities, they reiterated their request on 30January 2012.","9.On 21February 2012, in view of the authorities\u2019 silence the applicant\u2019s parents requested access to their daughter\u2019s file.","10.From January 2012 they paid for private specialist assistance so that their daughter could nevertheless receive educational support.","11.On 19March 2012 the authorities informed them that it would be difficult to organise specialist public assistance for the applicant again since it had only been scheduled up to the end of 2011, but that there was nonetheless a chance that she might shortly be in receipt of such assistance \u2013 this never transpired.","12.The Government affirmed that the applicant had received support defrayed by the school. In that regard, they failed to present any document signed by the headmaster stating that since the applicant had not been in receipt of specialist educational facilities in the school years 2010-2011 and 2011-2012, the school had provided her with basic assistance and physical aid and had tasked employees to provide material back-up to teaching staff. In support of those assertions the Government enclosed an invoice for 476.56euros (EUR).","13.The applicant observed that that the documents submitted by the Government failed to establish the veracity of its submissions. She pointed out, first of all, that the documents did not explain the type of assistance provided or the activities conducted, or whether the persons concerned had been competent and qualified to take care of an autistic child. She further submitted that the amount of the expenditure certified (EUR 476.56for six employees, coming to an average outlay of EUR 80per employee per year) showed that the support in question could certainly not have been considered as permanent.","14.On 15May 2012 the applicant\u2019s parents, acting in her name and on her behalf, applied to the Administrative Court (the \u201cTAR\u201d) of the Region of Campania. Complaining of the fact that their daughter had been unable to receive the specialist assistance to which she had been entitled under section 13 of Law no.104 of 1992, they sought a finding of failure to respect that right and asked the court to order the authorities to pay compensation to their daughter.","15.By judgment of 27November 2012 the TAR dismissed that application. It held that the municipality taken all the necessary action in time, and pointed out that the region had had to cope with a cut in resources allocated by the State.","16.The applicant\u2019s parents appealed to the State Council against that judgment. By judgment deposited with the registry on 26 May 2015, the latter dismissed their appeal. It held that the claim for damages had been vague and had failed to demonstrate a causal link between the lack of specialist assistance and the alleged damage. It also ruled that the region\u2019s liability could not be incurred because it had had to cope with a cut in resources allocated by the State. It considered that there had been no reason to reimburse the applicant\u2019s parents for the costs incurred in paying for private specialist assistance, since no negligence had been attributable to the authorities. Finally, as regards the request that the Eboli municipality be ordered to provide the assistance provided for by law, the State Council pointed out that the judge could only have issued an order to the authorities if the case had fallen under the exclusive jurisdiction of the administrative court, which had not been the situation in the present case."],"187":["2.The applicants\u2019 details are set out in the Annex. The applicants were represented by Dr T. Abela, Dr I. Refalo, Dr S. Grech and Dr M.Refalo, lawyers practising in Valletta.","3.The Government were represented by their Agent, Dr P. Grech, Attorney General.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicants are the owners of land in Qajjenza, Birzebbu\u0121ia, Malta.","6.By means of a Presidential Declaration of 16 August 1978, published in the Government Gazette on 25 August 1978, the Government expropriated a parcel of land measuring 5,349 sq.m. owned by the applicants (or their predecessors) (hereinafter \u2018Land A\u2019). This expropriation was intended for the site to serve as an extension of the LPG filling plant or gas bottling plant (hereinafter referred to as \u2018the plant\u2019) operated by Enemalta Corporation - a Government owned entity having a monopoly over the energy provision service in Malta - whose successor is now Enemalta plc.","7.By means of another Presidential Declaration of 16 May 1984, published in the Government Gazette of 25 of May 1984, the Government expropriated another parcel of land, owned by the applicants (or their predecessors), measuring 3,985 sq.m. (hereinafter \u2018Land B\u2019) adjacent to LandA. This land was intended to provide a buffer zone for the plant.","8.The Government offered 713.75 Maltese lira (MTL) for Land A and MTL 610 for Land B, by way of compensation. The applicants did not accept this amount and therefore proceedings were initiated before the Land Arbitration Board (LAB) for it to determine the compensation due.","9.By means of two judgments of 22 January 1990 the LAB established the compensation for Land A at MTL 952 (approximately 2,218 euros (EUR)) and for Land B at MTL 800 (approximately EUR1,863) both being considered as agricultural land. The LAB ordered that the final deeds of transfer be concluded.","10.Nevertheless, while such judgments became final, no such deed was ever concluded and the Government never acquired the land or paid the price determined by the LAB, despite the authorities having started to use the land since its de facto taking. Under Maltese law, at the time, until the price established is actually paid and the deed of transfer formally published, the expropriation is not considered to have been finalised.","11.Eventually, the Government announced that the plant in Qajjenza would be phased out and another plant set up in a completely different zone. Given that the applicants\u2019 land had not been formally transferred to the Government and that the expropriation had not been concluded, and in the light of Government\u2019s intention to dismantle the plant in Qajjenza, the applicants took the view that there was no longer any public purpose to be served by the 1978 and 1984 expropriations.","12.Accordingly, on 1 December 2006 the applicants wrote to the Commissioner of Land, through their lawyer, requesting the land to be returned to them. This letter having remained unanswered, the applicants filed a judicial letter on 27 November 2008 requesting compensation for the occupation of their property during all those years, as well as the return of the property.","13.As no action was taken in this regard, another letter was sent on 28July 2009 reiterating the same requests. No reply ensued and no compensation was paid.","14.Following a notification to the applicants to this effect, received on 18April 2012, by means of a Presidential Declaration published in the Government Gazette of 6 June 2012, the Government expropriated two small parcels of the applicants\u2019 land in Qajjenza, namely a parcel measuring 509sq.m., and a parcel measuring 139 sq.m., both of which formed part of the larger tract of land (B) which was the subject of the original expropriations. The taking was made in pursuance of Section22 (8) of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta, following the 2002 amendments (see Relevant domestic law), in the light of which ownership of the land was transferred to the State on the day of the declaration. According to the facts set out in the domestic judgments the smaller of those parcels was still being used as a sub-station which served residential and commercial buildings in the area, and on the part measuring 509sq.m. there was some kind of installation of the plant (kien hemm xi installazzjoni tal-impjant tal-Enemalta).","15.When \u201cre-expropriating\u201d these two parcels of land in 2012, the Government offered EUR 205 for the parcel measuring 509 sq.m., and EUR58.50 for the parcel measuring 139 sq.m. These values were based on the figures given in 1990 by the LAB which in turn had based itself on the value of the land at the time of the 1978 and 1984 expropriations respectively. According to the Government other considerations also came into play.","16.The applicants did not accept these amounts by way of compensation. In particular they considered that the two small parcels taken in 2012 had greatly reduced the value of the remaining land given that those parcels cut right across the applicants\u2019 land so that a wedge was taken out of its middle, leaving smaller, irregular, parcels on either side of the expropriated parcels. Thus, the one large and continuous parcel of land owned by the applicants was disrupted. Therefore, in the applicants\u2019 view, it was as though the entire area had been de facto expropriated.","17.According to the applicants architect\u2019s (C.C.) valuations commissioned by the applicants in 2009, Land A was valued at EUR4,400,000 (this land was valued as being within the development scheme and as used for industrial purposes) whereas Land B was valued at EUR 970,000 (this land was valued as being partly \u2013 a small portion \u2013 within the development zone); the loss of rent covering the period from the date of taking to August 2009 was calculated as amounting to EUR2,140,000 for Land A and EUR 437,000 for Land B.","18.The plant stopped being in operation in July 2012 and was officially decommissioned in 2013 and dismantled in September 2013.","19.The applicants filed constitutional redress proceedings on 20March 2013 asking the court to declare that their right to the peaceful enjoyment of their property had been violated since the taking of all their land was not in the public interest and the compensation offered to them was disproportionate, given the damage suffered, as it did not reflect the market value of the property. The applicants requested the court to grant all those remedies it deemed necessary and effective in order to redress the violation, and among those remedies the applicants specifically asked the court to annul the judgments given by the LAB on 22 January 1990; to liquidate the proper compensation due to the applicants; or to order the return of the property to the applicants.","20.During the course of these proceedings, M.F., a representative of the Commissioner of Lands (hereinafter CoL) testified, on 27 June 2014, that the technical experts showed \u201cthem\u201d which areas they were referring to but that Enemalta had not informed \u201cthem\u201d of any specific reason as to why they needed the land which was to be the subject of the 2012 declaration. She also confirmed that when the CoL had filed the cases before the LAB (in 1984), to her understanding, in the CoL\u2019s view, the defendants in those cases were the owners of the land or their successor in title. D.A. a representative of Enemalta plc (the user of the land) testified, on 18 October 2013, that he was not aware of the use to be made of the parcel measuring 509 sq.m. which was again expropriated in 2012; he testified that he was only told that Enemalta would proceed to purchase the land, and every time he asked about it he was told that no definitive decision had been taken. J.C., an ex\u2011employee of Enemalta plc (before being succeeded by D.A.), testified on 22November 2013 that until 2010, when he left his employment, no decision had yet been taken as to what would be the future of the site, and he did not know whether a decision had been taken as to its use at that point (2013).","21.Pending these proceedings the Government also brought forward a valuation of the properties in question dated June 2014 which took into consideration the locality, size, state and potential in line with local plans as well as other factors likely to affect its value. According to that report, by the Government\u2019s architect (M.S.), the parcel measuring 509sq.m. (valued at EUR205 in the 2012 notice to treat) was worth EUR 14,000 when valued as agricultural land; the parcel measuring 139sq.m. (valued at EUR 58.50 in the 2012 notice to treat) was worth EUR 4,000 when valued as agricultural land; the remaining parcel measuring 3,337 sq.m. (i.e. Land B, less the two parcels measuring 139and 509 sq.m.) was worth EUR 97,000 when valued as agricultural land; a parcel measuring 5,213 sq.m. was valued at EUR 140,000 taken as land used for an LPG filling plant; and a parcel measuring 137sq.m. was valued at EUR 4,000 when valued as barren land. The two latter parcels formed Land A, which was the subject of the declaration of 1978. The report also stated that all the land was being considered as agricultural in terms of law, both on the date when they were taken and on the date of the report (2014). It further specified that on the part measuring 509 sq.m. and the part measuring 5,213 sq.m. (most of LandA) there was part of the complex that had previously been used for the gas plant (hemm parti mill-kumpless li kien jintuza b\u0127ala impjant tal\u2011gass).","22.According to an architect\u2019s (J.S.) valuation prepared on 21July 2009 for Enemalta plc the total value of land measuring 6,873 sq.m., where part of the Qajjenza plant was located (which measurement excludes the buffer zone), would be worth EUR 900,000 if all the equipment of the plant were to be removed from the site.","23.According to an architect\u2019s (M.S.) valuation prepared in October 2008, and according to the testimony of the same architect, the total value of the land (measuring 21,828 sq.m.) originally occupied by the plant (excluding the buffer zone) was EUR16,830,500. The estimate was based on the potential use of the site and similar land value, as sold at the time. According to his report the area which was marked as a white area was within the boundary for development (building scheme) with two policies directly effecting it, the first concerning the relocation of the plant and the second the use of the land thereafter, which was to be predominantly residential.","24.By a judgment of 29 April 2016 the Civil Court (First Hall) in its constitutional competence, found that the applicants had shown that they were the owners of the land, and that the plant had been dismantled and Enemalta, who was operating from elsewhere, did not know what to do with its site in Qajjenza. It considered that it had to examine separately the expropriations of 1973 and 1984 on the one hand and those of 2012 on the other hand, as they had been taken under different laws.","25.It held that the takings in 1978 and 1984 (excluding the two small parcels which were the subject of the 2012 re-expropriations) were in breach of Article 1 of Protocol No. 1 to the Convention because no public purpose subsisted once the plant had been dismantled and the authorities never actually expropriated the land (since they had not paid the applicants, nor signed the relevant deed). Thus, the decisions of the LAB had been superseded by the fact that this property was no longer needed. It therefore declared the 1978 and 1984 expropriations (except insofar as they affected those parcels of land re-expropriated in 2012) without effect (but not null) and it ordered the return of the land to the applicants.","26.The position was not the same for the two parcels of land expropriated in 2012 under Section 22 (8) of the Ordinance which were being used by Enemalta \u201cfor its purposes\u201d (g\u0127all-iskopijiet tag\u0127ha) and which therefore had to be transferred to the Government. The court noted that the public interest behind this expropriation had not been contested within the 21-day limit stipulated in law (Section 6 (2) of the Ordinance). Moreover, the smaller of those parcels was still being used as a sub-station which served residential and commercial buildings in the area, thus these two parcels of land were to be transferred to the Government without prejudice to the applicants\u2019 rights to contest the compensation offered.","27.It rejected the Government\u2019s objection of non-exhaustion of ordinary remedies which had referred to an application for retrial and an application for fixing a time-limit for the performance of an obligation which were not relevant to the present case.","28.The court also held that the delay in finalising the 1978 and 1984 expropriations had resulted in a breach of the applicants\u2019 rights under Article6 of the Convention.","29.It ordered the Government to pay EUR 15,000 to the applicants by way of compensation for the violation of their rights. No costs were to be paid by the applicants.","30.Both the Government and the applicants appealed. In particular the applicants complained about the low award of compensation in view of the amount of years during which the deprivation persisted; and that the expropriation of the smaller parcel of land in 2012, measuring 509sq.m., had not pursued any public interest, and thus should have also been released together with the rest of the property, as its taking solely served to diminish the value of their entire property. It had also not been correct to find that they could not complain about the latter because they had failed to do so under Section 6 (2) of the Ordinance, since the latter did not provide that the time\u2011limit was to run from the date of notification.","31.By a judgment of 25 November 2016 the Constitutional Court held that it was not open to the first court to find a breach of Section6 as the applicants had not complained about that and therefore it revoked that part of the first-instance judgment. It confirmed the remainder.","32.In relation to the upheld violation concerning the larger area of land, in so far as relevant, in dismissing the appeal plea by the Commissioner of Land to the effect that the first court had been wrong in finding that no public interest existed once the plant had been dismantled (in relation to LandsA andB), the Constitutional Court reiterated its case-law to the effect that public interest had to persist until the finalisation of the procedure of expropriation. Once it had been established that the land had been taken for the purposes of the gas plant, which was no longer there, it was for the Commissioner of Land to prove that there was still some other public interest. No such proof had been submitted.","33.In connection with the same tract of land, it also noted, inter alia, that the establishment of compensation by the LAB did not necessarily satisfy the proportionality requirement. Moreover, the LAB\u2019s order to proceed to transfer the property was not followed and the deed was never signed, with the result that the applicants were still without compensation thirty four years after the taking. Those facts together with the uncertainty within which the applicants found themselves led to a violation of their property rights.","34.As to the award of compensation of EUR 15,000, which it considered as non-pecuniary damage, and which it confirmed, the Constitutional Court noted that one had to take into consideration the uncertainty in which the applicants had been left over a prolonged period of time, the size of the land and the years during which they had been deprived of it; and also, the fact that the takings of 1978 and 1984 had originally been in the public interest, that the land had been agricultural, as well as the fact that it was now being returned to them. It also noted that in their original application the applicants had requested compensation for the taking or the return of the land. It followed that since the land was returned to them no pecuniary damage was due.","35.As to the two smaller portions of land, only one of which had been the subject of the applicants\u2019 appeal, the Constitutional Court held that on the relevant date, in 2012 (since these lands were expropriated under a different law), these were still occupied by Enemalta, in particular on the land measuring 509 sq.m. there was \u201cpart of the complex which was previously used as the gas plant\u201d (based on the report of an architect M.S. see paragraph21 above) and the applicants had not substantiated any abuse by the authorities. The first-court\u2019s decision had therefore been correct. The first-instance court was also correct to find that the applicants had failed to make use of the procedure under Section 6 (2) of the Ordinance, despite being notified two months before the Presidential Declaration of 2012, as admitted in the testimony of T.G. The applicants had thus, at the time, failed to make use of a legitimate remedy to claim that there had been no public interest in accordance with Section 6 (2) of the Ordinance \u2013 a choice for which they were responsible.","36.The Constitutional Court apportioned costs as follows: costs of first-instance were to remain as they had been decided; 4\/5 of the costs of the CoL\u2019s appeal were to be borne by the latter and 1\/5 by the applicants; costs of the appeal of the applicants were to be borne entirely by them; and 3\/4 of the costs of the cross appeal of Enemalta plc were to be borne by the latter and 1\/4 by the applicants.","37.On 6 May 1987 Enemalta Corporation (the predecessor in title of Enemalta plc) purchased from Laylay Company Limited a parcel of land measuring 46,201 sq.m. for the sum of MTL 105,878 (approximately EUR246,629) the price being established at a rate of MTL2,576.12 for every 1,124 sq.m. This land was in close vicinity to the land belonging to the applicants.","38.The land belonging to the applicants was completely abandoned and in a state of dereliction; however all traces of the gas tanks had been removed. Another parcel of land belonging exclusively to Enemalta plc, which is adjacent to the applicants\u2019 land, was also abandoned; only a few dilapidated structures remained and the area was not being used in any manner. No equipment belonging to the original plant remained.","39.The plant in the new location had been in operation since July2013 and was being run by a private company (Liquigas) - not Enemalta plc.","40.According to the applicants, until the time of the lodging of the application, despite the Constitutional Court judgment, the applicants had not obtained repossession of their land as they had not been granted access to the land which was still sealed off.","41.An architect\u2019s (P.B.) valuation, carried out on behalf of the applicants, assessed the value of the applicants\u2019 land in 2017 reflecting the loss for the applicants resulting from the 2012 re-expropriations (according to which the expropriation of the triangular parcel of land measuring 509sq.m. in 2012 adversely affected the remainder of the applicants\u2019 land) in the amount of EUR 1,153,500, based particularly on a projection for development of built up plots on Land A which was within a development zone (according to the Local Plans of 1995). According to the same valuation, the accumulated rental yield from 1978 to 2017 for the land which had been the subject of the 1978 expropriation was EUR 3,476,942 which with a conservative rate of interest of 2.5% amounted to a total loss of EUR4,248,223.","42.According to the Government on 6 July 2018 part of Lands A and B (excluding the properties measuring 509 sq.m and 139 sq.m.) was returned to the applicants. In this connection they submitted a copy of a letter from the Board of Governors of the Lands Authority to the Chairman of the Lands Authority confirming that on 6 July 2018 the former had decided to release the property, as well as a declaration, by the Lands Authority, of 7August 2018, issued in the Government Gazette concerning the release of the land."],"188":["5.The applicant was born in 1980 and is detained in K\u0131r\u0131kkale.","6.On 30 August 2004 the Diyarbak\u0131r police force received intelligence that the PKK (the Kurdistan Workers\u2019 Party, an illegal organisation) was planning a bomb attack on the Victory Day parade scheduled for that day, which would be attended by high-level State officials. A search conducted in the vicinity of the parade route managed to locate a mobile telephone-operated bomb, which was wrapped in a black plastic bag. The bomb was deactivated on the spot and the telephone was sent to a police criminal laboratory for further investigation. The owner of the SIM card found inside the telephone was identified as a certain M.\u00c7.","7.On the same day, the criminal laboratory at the Diyarbak\u0131r Security Directorate issued a report regarding the telephone found earlier that morning. The report indicated that the model of the telephone was a Nokia3310 and its IMEI number[1], which was partially legible, was 350101\/91\/25042(3 or 5)\/5 (hereinafter referred to as \u201ctelephone no.1\u201d). The report furthermore noted that only one fingerprint had been detected on the black plastic bag containing the bomb.","8.On 1 September 2004 the Diyarbak\u0131r police questioned the owner of the shop where the SIM card used in the apparatus had been purchased, in order to ascertain the date of purchase and the identity of the purchaser. The invoice furnished by the owner of the shop established that the SIM card in question had been sold to M.\u00c7. on 28 August 2004 \u2013 that is to say two days before the attempted attack. However, the shop owner had no recollection as to who the purchaser was, and was not able to identify M.\u00c7.","9.At an unspecified time on the same day M.\u00c7. was taken into custody at the Diyarbak\u0131r Security Directorate for questioning. M.\u00c7. told the police officers that he was a farmer. When the police informed him that the mobile telephone (telephone no.1) and the SIM card found on the deactivated bomb on 30 August 2004 had belonged to him, M.\u00c7. asserted that approximately one month before, while returning from his orchards, he had been stopped by four armed men, dressed as militants, who had said that they were with the PKK. After questioning him, one of them had taken his identity card and mobile telephone, together with the SIM card inside. That man had been blond (with a moustache and beard), well built, and approximately 1.75metres tall, and had been carrying a Kalashnikov rifle, two hand grenades and four magazines. He had been around 25 to 27 years old and had spoken Kurdish with a Diyarbak\u0131r accent. M.\u00c7. asserted that he had not mentioned this incident to anyone, nor had he officially reported it to the police, for fear of reprisal by the militants. He stated that he had had nothing to do with the attempted attack of 30 August 2004 and suggested that the same militants who had robbed him might have planned to use his identity card and SIM card in carrying out the bombing.","10.On 2 September 2004 M.\u00c7. was questioned by the Diyarbak\u0131r public prosecutor, when he continued to deny his involvement with any terrorist organisations. He repeated his previous account of events, but this time did not provide a physical description of the militant who had spoken to him. During the questioning M.\u00c7.\u2019s lawyer also stated that the signature on the invoice for the SIM card did not match M.\u00c7.\u2019s signature, which corroborated M.\u00c7.\u2019s argument that the SIM card used in the bomb apparatus must have been purchased with the identity card stolen from him.","11.On 9 September 2004 M.\u00c7. was indicted for aiding and abetting terrorists.","12.At the first hearing of his trial (2004\/387 E.), held on 12October 2004 before the Seventh Division of the Diyarbak\u0131r Assize Court, the trial court requested Turkcell, the network provider of the SIM card in question, to give details of calls made over the cellular network in July and August in respect of the telephone which had allegedly been extorted from M.\u00c7. by the terrorists.","13.According to the information in the case file, the response sent by Turkcell on 3 November 2004 gave details in respect of telephone serial no.350 10 19 12 60 42 60 (hereinafter referred to as \u201ctelephone no.2\u201d). The report indicated the numbers called, the places where the calls had been made from, and the duration of the calls, but not the identity of the caller or of the persons contacted. According to that document, the number \u201c8090\u201d was called on 29 August 2004 from that mobile telephone using the SIM card belonging to the number 0537 551 59 35, and the duration of the call was twenty-three seconds.","14.Following the permanent closure of the Seventh Division of the Diyarbak\u0131r Assize Court, the case file was transferred to the Sixth Division of the same court. At the second hearing held on 14 April 2005 before that court, the trial court noted that the third incident noted in the bill of indictment against the applicant before the Fifth Division of the Diyarbak\u0131r Assize Court also concerned the handing over of a mobile telephone by M.\u00c7. to the terrorists and that the indictment stated that that mobile telephone had been extorted from M.\u00c7. (see paragraphs 53 and 76 below) Accordingly, the trial court decided to obtain the opinion of the Fifth Division of the Diyarbak\u0131r Assize Court regarding whether the two cases should be joined in the light of the factual and legal link between the two cases.","15.On 10 May 2005 the trial court decided to join the criminal proceedings initiated against M.\u00c7. to the applicant\u2019s case (case no.2005\/24E. before the Fifth Division of the Diyarbak\u0131r Assize Court) on account of the interrelationship between the two cases.","16.On 29 October 2004 at 5.15 pm, while distributing some commercial flyers in the street, the applicant was taken into police custody by officers from the Anti-Terrorism Branch of the Istanbul Security Directorate, within the context of an operation carried out against the illegal organisation PKK\/KONGRA GEL. At the time of his apprehension, the applicant was in possession of a false identity card bearing the name of a certain M.M.K. and a Nokia 6220 telephone (hereinafter referred to as \u201ctelephone no.3).","17.The arrest report did not indicate the applicant\u2019s real name, so it is not clear whether the police were aware at the time of his apprehension of the applicant\u2019s identity. According to the arrest report, the applicant was reminded of his rights (that is to say, the officer read them out to him at the time of his apprehension).","18.At 6 p.m. the applicant was examined by a doctor at the Istanbul branch of the Forensic Medicine Institute. The doctor noted no signs of ill-treatment, although he did observe redness on both of his cheeks. The report gave the applicant\u2019s name as M.M.K.","19.The applicant was subsequently taken to the Istanbul Security Directorate, where he was informed of his rights as a detainee, which included the right to request the assistance of a lawyer. Upon the applicant requesting legal assistance, the police contacted the Istanbul Bar Association in order to secure the appointment of a lawyer. They also conducted a preliminary interview with him in the absence of a lawyer, during which it appears that the applicant divulged his address but not his real identity. There are no records in the case file regarding the content of that interview.","20.Between at least 9 p.m. and 10.15 p.m. on the same day police officers escorted the applicant to his apartment for a house search, without waiting for the arrival of the lawyer assigned by the Istanbul Bar Association. No prior court order authorising the search was issued, but only a search-and-seizure warrant issued by the deputy director of the Istanbul Security Directorate Anti-terrorism Branch. The warrant, which was issued at 9.30 p.m., was a printed one-page-long document that had been filled in by hand to indicate the applicant\u2019s name and the address of the place to be searched; the reason for the search was indicated as \u201cto carry out a search of the home of Ayetullah AY, a member of the terrorist organisation PKK\/KONGRA-GEL\u201d. The part entitled \u201cRisk in postponing the search and seizure [pending a court order]\u201d was entered by hand as \u201cTampering with evidence\u201d.","21.According to the applicant, two successive searches were conducted in the applicant\u2019s apartment that night. The initial search was carried out by the police, in the applicant\u2019s presence, and was completed without any findings being reached. A superior officer was notified of the result over the telephone, and the officers requested permission to leave the premises. However, as the applicant was being escorted out of the apartment, he saw three other officers coming in, dressed in plain clothes, who announced that there would be a new search. A second search was therefore conducted while the applicant was kept outside the apartment. After a short while, one of the newly arrived officers emerged from the apartment with a mobile telephone in his hand. The applicant immediately denied ownership of the telephone and refused to sign any records indicating that such a telephone had been found in his house.","22.According to the search-and-seizure record issued after the search at 10.15p.m., the police seized one Nokia 3310 mobile telephone (IMEI no.351342\/80\/413945\/0) (hereinafter referred to as \u201ctelephone no.4\u201d), one camera and one SIM card from the applicant\u2019s apartment as evidence. The same record also indicated the applicant\u2019s name as \u201cAyetullah Ay, with a false identity card bearing the name M.M.K.\u201d and that the applicant had given the address of his apartment when interviewed by the police before the search (m\u00fclakat). The applicant refused to sign the record, asserting that the telephone in question did not belong to him and that it had been planted in his house by the officers who had conducted the second search. In response, upon their return to the Security Directorate, the police drew up another record, which made no mention of evidence found and seized in the apartment and which the applicant therefore agreed to sign. According to the applicant, however, this revised report was never included in the case file. The parties did not produce a copy of this second document in the proceedings before the Court.","23.The applicant did not meet with a lawyer during his detention in Istanbul. There are two conflicting reports in the case file to account for this: according to the first report, prepared on 29 October 2004 at 9.10p.m., the lawyer assigned by the Istanbul Bar Association reported to the Security Directorate at around 9 p.m. but was not able to see the applicant, who was at the house search at that time; according to the second report, which was drawn up on 30 October 2004 at 5 a.m., however, despite the request, the Bar Association did not dispatch a lawyer to provide legal assistance to the applicant. The reports were drawn up and signed by the same two officers.","According to a document entitled \u201cSuspects\u2019 and accused persons\u2019 rights form\u201d, which was drawn up at 3.20 a.m. on 30 October 2004 and signed by the applicant, he was apprised of his rights, and a copy of that document was given to him. However, the part of the report dedicated to the offence on the basis of which the applicant was arrested and the facts related thereto was left blank.","24.On 30 October 2004 at 5 a.m. the applicant was examined by a doctor at the Istanbul branch of the Forensic Medicine Institute, who noted no signs of ill-treatment. In the doctor\u2019s report, the applicant\u2019s name was given as Ayetullah Ay; the doctor noted that he had been brought before him earlier, at 6 p.m., with an identity card belonging to M.M.K. Subsequently, the applicant was handed over to officers from the Anti-terrorism Branch of the Diyarbak\u0131r Security Directorate, on the grounds that he was suspected of having committed the terrorist offences within its territorial jurisdiction. It appears that the applicant\u2019s real identity was known, at the latest, at the time of his transfer to Diyarbak\u0131r because the report recording the applicant\u2019s handover to the police officers gave his name as \u201cAyetullah Ay, with a false identity card bearing the name M.M.K.\u201d.","25.Later on the same day the Istanbul Assize Court upheld as lawful the search-and-seizure warrant issued earlier by the deputy director of the Istanbul Security Directorate Anti-terrorism Branch. The decision, however, noted that no \u201ccrime or criminal element\u201d had been detected in the apartment and did not refer to the mobile telephone and the other items allegedly seized from the applicant\u2019s house.","26.Concurrently with the applicant\u2019s detention in Istanbul, searches were conducted, on the order of the Diyarbak\u0131r public prosecutor, in the houses of some of the applicant\u2019s relatives in Diyarbak\u0131r, who were suspected of having an \u201corganisational connection\u201d with the applicant.","27.At 4.30 a.m. on 30 October 2004 the Diyarbak\u0131r police raided the house of Y.Y., the applicant\u2019s cousin, and found some money, three cartridge clips, some eighty cartridges, handwritten notes on bomb-making \u2013as well as other training notes and meeting notes from PKK training camps and photos of members of that organisation, together with a photo of the applicant\u2019s late father\u2013 hidden in various places in the house and in the chicken coop in the garden. The items confiscated from the house as evidence were sent to the police criminal laboratory for fingerprint and handwriting examination.","28.Later on the same day the Diyarbak\u0131r Assize Court upheld the house search as lawful.","29.According to a report issued by the criminal laboratory at the Diyarbak\u0131r Security Directorate on 2 November 2004, the handwriting in some of the documents confiscated from Y.Y.\u2019s house matched those of the applicant. Although their content was not specified in the report, notes that were later accepted by the applicant as belonging to him contained, inter alia, information on bomb-making.","30.According to a further fingerprint report dated 8 December 2004, none of the fingerprints found on the confiscated articles belonged to Y.Y., his wife or the applicant. However, fingerprints found on a six\u2011page document entitled \u201cmeeting notes\u201d were identified as belonging to a certain R.T.","31.On 2 November 2004 the applicant was questioned at the Anti-terrorism Branch of the Diyarbak\u0131r Security Directorate in the presence of a lawyer appointed by the Diyarbak\u0131r Bar Association. The applicant, who by that point had confirmed his real identity, did not respond when asked why he had been using a false identity card. He likewise refused to answer any questions regarding the telephone found (telephone no.4) in his apartment, except for denying that he was its owner. He was then given a list of the material confiscated from Y.Y.\u2019s house (but not presented with the material itself physically) and was asked whether any of it belonged to him. He denied any organisational connection with Y.Y., but admitted on several occasions that the notes and the other items found in Y.Y.\u2019s house, except for the money and the cartridges, were his. He furthermore acknowledged that it was he who had placed those documents in the chicken coop in Y.Y.\u2019s garden. When asked about his relationship with R.T., whose fingerprints had been detected on one of the documents recovered from Y.Y.\u2019s house, he stated that he knew R.T. from his home village, but had not seen him in the previous six years. The police also informed the applicant of the arrest and questioning of M.\u00c7. in connection with the attempted bomb attack of 30 August 2004, and explained to him that telephone no.4 seized from his apartment bore the same IMEI number as the telephone stolen from M.\u00c7. in early August by PKK militants. He was asked whether he was one of the four militants who had allegedly robbed M.\u00c7. The applicant responded that the telephone allegedly recovered from his apartment (telephone no.4) did not belong to him and that he had had nothing to do with the said attack.","32.In the meantime, on 1 November 2004 Y.Y. was also questioned at the Anti-terrorism Branch of the Diyarbak\u0131r Security Directorate. Y.Y., who was accompanied by a lawyer, denied any connection with the PKK. He chose to remain silent in response to questions about the material recovered from his house and garden. However, he later stated before the Diyarbak\u0131r public prosecutor and the Diyarbak\u0131r Assize Court that he did not know how that material had found its way into his house.","33.Similarly, on 1 November 2004 the Diyarbak\u0131r police sought to question R.T. with regard to whether he had any connection with the material seized from Y.Y.\u2019s house. R.T. refused to answer any questions put to him. However, before the Diyarbak\u0131r public prosecutor and the Diyarbak\u0131r Assize Court he subsequently acknowledged that he had seen and briefly read those meeting notes at the house of the applicant\u2019s parents when he had been there for a family visit a couple of months previously, which he said accounted for the fingerprints. He furthermore stated that the applicant had not been on the premises at the time of his visit.","34.According to a report drawn up and signed by the police officers on 2November 2004 at 9 a.m., the applicant admitted being the sole perpetrator of the murder of two security officers on 7 September 2004 and stated that he could show them where the incident had taken place. However, the same report, which was not signed by the applicant, also stated that he had changed his mind on the way to the scene of the incident and had decided not to participate in the reconstruction of events.","35.The applicant underwent a medical examination in Diyarbak\u0131r at 3.32p.m. at the end of his period in police custody on 2 November 2004; the doctor who examined him concluded that that there were no signs of ill-treatment on his body. The doctor noted the applicant\u2019s name as \u201cAyetullah Ay (according to his statement) (M.M.K.)\u201d and opted to record his physical assessment of the applicant in the section of his report entitled \u201cMedical description of the person examined\u201d, which was the part to be filled in in cases of persons not holding a valid identity card.","According to that description, the applicant was around 1.74 cm tall, weighed about 65 to 70 kilograms, and had green eyes, a \u201cwheat\u201d complexion (bu\u011fday tenli) and light chestnut brown\/caramel brown (kumral) hair and stubble.","36.On 2 November 2004 the applicant, accompanied by his lawyer, was questioned by the Diyarbak\u0131r public prosecutor, to whom he largely reiterated the statements that he had previously given to the police. He was asked again whether he was one of the militants who had robbed M.\u00c7. In response, he acknowledged that he loosely fitted the description of the person who had taken M.\u00c7.\u2019s telephone and identity card, but repeated that he had had no involvement in that incident (or with the PKK, for that matter).","37.Later on the same day, the applicant was brought before the Diyarbak\u0131r Assize Court for questioning. The judge asked the applicant whether he had availed himself of his right to remain silent during police questioning; the applicant replied that he had done so. The applicant added that he had been using a fake identity card because he was trying to avoid being conscripted to serve in the army. When he was shown the documents recovered from Y.Y.\u2019s house, which he had acknowledged ownership of previously, he stated that he had no recollection of them. Thereafter, the applicant\u2019s lawyer requested the court to terminate the questioning, as the applicant was acutely tired, not having been allowed to sleep for the past four days in police custody. The lawyer repeated that the applicant denied all the accusations against him. The judge then ended the questioning and ordered the applicant\u2019s pre-trial detention.","38.The deputy director of the Anti-terrorism Branch of the Diyarbak\u0131r Security Directorate drew up a three-page-long document entitled \u201cCriminal file\u201d and sent it to the public prosecutor in charge of the case. In that document, which was dated 2 November 2004, it was specified that the mobile telephone forcibly taken by the applicant from M.\u00c7. must have been the same as that (telephone no.4) found in the search of the applicant\u2019s house in Istanbul, given the fact that the IMEI number pertaining to each of those telephones had been one and the same.","39.An expert report dated 3 January 2005 indicated that the applicant\u2019s fingerprints did not match the sole fingerprint detected on the bomb apparatus deactivated on 30 August 2004.","40.On an unspecified date the applicant lodged several complaints with the prosecution authorities, one of which was that the police had not shown him any warrant authorising the search of his house on 29October 2004.","41.On 6 April 2005 the Diyarbak\u0131r public prosecutor took statements from the legal-aid lawyer appointed by the Diyarbak\u0131r Bar Association to represent the applicant during the course of his questioning in Diyarbak\u0131r. The lawyer stated that the applicant had looked extremely tired and sleep\u2011deprived, and had had a very hard time collecting his thoughts, for which reasons he had requested the Diyarbak\u0131r Assize Court to end his questioning prematurely.","42.On 5 April 2005 the applicant, who at that point was being held in pre-trial detention at Diyarbak\u0131r High Security Prison, was subjected to a routine body search prior to being taken to the prison visiting area to see his mother. According to the applicant, the search was conducted without any problems and he was allowed to proceed to the visiting area.","43.However, approximately nine days after the visit, he was informed by the prison administration that a disciplinary decision had been taken against him for carrying coded notes to the visiting area. The two small hand-written notes found on his person before the visit had been confiscated and handed over to the prosecutor. The first note read as follows:","\u201cHello: Burn this note after reading [it]. Be very careful when you go with \u2018Hoca\u2019 to return the materials. They will be following you. But you will not be [aware of it]. Don\u2019t panic, act naturally, just do your job; this is not an offence. They can\u2019t do anything to you.","1)Check all the materials, they opened some of them \u2013 separate the ones that are open.","2)Check one of the open ones, [one of] the big ones that has [the word] \u2018vanilla\u2019 on it (act very secretly, be alert and do not trust anybody). It has a chocolate thing on top; underneath, however, it has a dough-like substance. Destroy that dough by throwing it into the toilet in small pieces. This is the first and the most important thing you need to do. Do it as soon as you go to the house. Keep calm thereafter; act calmly.","3)Everything will be ruined if you have anybody else with you when doing this.","4)If it is possible, get this finished in one day.","5)Before going home, Hoca must resign by means of a notarised document and hand the letter of resignation over to the company. The necessary information about this subject is written in the booklet. The company may not accept the resignation, [in which case] force them to give reasons. There must be an invoice at home \u2013 bring the purchase invoice [which is at home]; if the invoice has been taken away, you may return the items [indicated] on the invoice [at home]. The invoice was [issued] under the name of \u201cHatice\u201d. Ask whether she needs to be present or not and try not to be seen by her; especially you \u2013 you should never be seen by her. In the event that you are seen by her, you may tell her that you are returning the products in exchange for the money you loaned me. You shouldn\u2019t tell [her] that I am your brother.","6)If Hoca tells you that he can\u2019t [return the products] on the grounds that the invoice has been issued under somebody else\u2019s name, you may tell him that I am your sponsor. If that doesn\u2019t work, you must have Hatice present. She owes me 200 million [Turkish liras]. If you see her, you will get it. Don\u2019t defer to them; be stubborn, because they are devious people.","7)At most, 10% of the purchase price will be withheld. This amounts to something between 500 to 600 million. Do your sums and make the calculation too.","8)When you are done with the products, it would be good if you bring my television, sandals, bags, shoes, clothes and all my stuff here. If you bring them, keep the keys. If they ask you why, tell [them] that I have my stuff at home. Do not give the key to anybody else.","9)Be very careful \u2013 point 2 is secret and must stay between you and me until death. Destroy [the dough-like material] and I will be at peace.","10)I am handing the products that are here to Hoca. [Hoca] will get the rest [himself]. It is Hoca\u2019s business to decide whether to sell them or give them away for free. [Hoca] should take them all away. [Hoca] should take the ones you have too. Read this note alone. Do not let anyone else see [you]. If available, Hoca should also read [it]. Burn [this note] after reading it.\u201d","44.The second note read as follows:","\u201c(Nobody except you should read this). Only you should read this. Then burn and destroy it. You should be very careful. Do not trust anybody easily. You should gradually establish control over the family. Everybody should get instructions from you. But consult the people around you before doing something. If you do so, they will draw closer to you and they will confide in you. Do not undertake official dealings and transfer the assets under your name or Murat\u2019s \u2013 it is dangerous. You may do so under the name of other members of the family (who are trustworthy). [This way] you will be managing everything, although they are in official records under somebody else\u2019s name.","I am going to tell you a secret now. But you shouldn\u2019t go against what I am going to tell you, or else my plans will be turned upside down. It is necessary that you act wisely.","I had suspected Fahri before I was arrested. I didn\u2019t take into account [the fact that] he would give me away this quickly. I did actually take precautions, but...","1)His chief did not do what I had told [him or her to do]; I was shocked when I heard that my materials had been seized \u2013 I was confused.","2)In reality, Fahri did not know where I was staying. I went to Adana three days before my arrest. Although I told Murat not to tell Fahri that I had come to Adana, he (Murat) called Fahri in without my knowledge. I was pissed off at Murat at that time, but it was too late. I was arrested two or three days after that. In fact, had they not caught me that day, they would never have caught me, because I was about to change my location [around that time]. I am angrier with Murat than with Fahri. Every time he wangles words out of me, he passes them on to somebody else (for example to \u015eaziye or Fahriye). You are going to enquire into this issue, but without showing your true colours. I think Fahri is certain, but I suspect Murat too. I don\u2019t know whether [Murat acted] deliberately or not. I am going to clarify this with the information you will pass on to me. Because I am the one who knows these issues the best.","The only thing we need to do is to wangle words out of them without showing your true colours. Keep their words in your mind, even if they seem meaningless to you. Don\u2019t rush, be silent like you used to be, but try to worm information out of them. For that [to work], you have to be very canny. Don\u2019t go against what I am telling you. I wasn\u2019t able to figure Murat\u2019s situation out; from my own viewpoint, it is because of his foolishness. As I see it, I don\u2019t think he is [a] malicious [person]. But I have to approach [this issue] scientifically. For me, everybody is a suspect until the situation is uncovered. Enquire within the family too \u2013 learn who is who and what they are up to. For example, \u015eahabettin. Even if you reveal that Fahri is an agent, don\u2019t let on; act like you used to [act]. In fact, get close to [\u015eahabettin] and sometimes talk to him negatively about me or curse me with a view to sounding him out. See who says what. Even if one of them curses me, keep silent and report what they say to me. I only want to know what is being talked about. Look, be careful. Even if one of them is an agent, he or she shouldn\u2019t know that you know that he or she is an agent. Because they will become very dangerous once they know you know who they are. You and I, we will both get hurt. They wouldn\u2019t hesitate [for even a second] to even kill. Do not think of them as relatives or brothers; you don\u2019t know about these issues. That is why you have to be very crafty and careful.\u201d","45.In the meantime, on the basis of the information in the above notes, a court order was obtained on 6 April 2005 for another search to be conducted of the applicant\u2019s apartment in Istanbul. Neither the applicant nor his lawyer was notified of that search, which was, moreover, not supervised by the public prosecutor. The following material was found and seized during that search: 830 grams of plastic explosives (C4) hidden at the bottom of a box of diet food products; a handgun, a cartridge clip, and approximately thirty cartridges sewn inside a sofa bed; some handwritten notes hidden inside the sofa bed; four electric detonators tucked inside a table leg; a 5-metre copper wire and copper coil; a 2-metre soldering wire and soldering machine; fourteen tablets of potassium permanganate; one alarm clock; and a box of thumbtacks. The search-and-seizure record bore the signatures of the mayor of the neighbourhood (muhtar) and the locksmith who had secured entry to the apartment. The search was apparently recorded on video and photographed.","46.According to reports provided by the criminal laboratory at the Diyarbak\u0131r Security Directorate dated 7, 8 and 12 April 2005, no fingerprints were detected on the material seized from the applicant\u2019s apartment. Moreover, a ballistic examination of the handgun suggested that it had not been used in any prior incidents. The police criminal laboratory also confirmed that the potassium permanganate found in the applicant\u2019s house was a type of disinfectant that could also be used in manufacturing bombs.","47.On 12 April 2005 the criminal laboratory at the Diyarbak\u0131r Security Directorate issued another report indicating that the writing on the confiscated notes matched the applicant\u2019s handwriting. The examination was made on the basis of the copies of the handwriting samples obtained from the applicant at the time of his detention in police custody.","48.On 19 September 2005 the applicant was questioned for the first time by the Diyarbak\u0131r public prosecutor in charge of the investigation regarding the notes found in prison and the illicit material subsequently recovered from his house. The applicant denied the allegation that any notes had been found on him by the prison guards. He requested that the guards who had searched him be questioned regarding the relevant date and that the video recordings of the search be examined. When asked to comment on the police criminal laboratory\u2019s report matching his handwriting to the writing on the notes, he stated that he did not know how the criminal laboratory staff had been able to make the comparison as they had not asked for any samples of his handwriting. He requested that the relevant notes be submitted to the Forensic Medicine Institute for examination. He moreover denied any connection to the material recovered from his house and emphasised that none of it had been found to bear his fingerprints. He added that his apartment had already been thoroughly searched by the police on 29October 2004, and that that search had not located any such illicit material. He confirmed that no one else had stayed in his apartment in the meantime and that the only set of keys to his apartment was kept in the safe in the prison.","49.On 21 September 2005 the Diyarbak\u0131r public prosecutor took evidence from the two prison guards, namely H.A. and F.Y., who had witnessed the applicant\u2019s body search on 5 April 2005. They both stated that they had been present at the place where the search had taken place and that another prison guard, namely S.\u00c7., had told them that he had found the notes in question on the applicant\u2019s person and that the incident had been recorded on security cameras. On an unspecified date S.\u00c7. gave evidence to the Diyarbak\u0131r public prosecutor, to whom he stated that he had searched the applicant\u2019s person and had found the impugned notes.","50.In response to an enquiry from the Diyarbak\u0131r public prosecutor, on 23September 2005 the governor of Diyarbak\u0131r High Security Prison informed the latter that no other prison officer or prisoner had witnessed the applicant\u2019s body search. Moreover, in response to an enquiry from the public prosecutor on 22 September 2005, the prison governor stated in a letter dated 27 September 2005 that the video surveillance record of the body search was no longer available, as the prison\u2019s tapes were recorded over every five months owing to a scarcity of resources.","51.On 12 October 2005 the Diyarbak\u0131r public prosecutor\u2019s office sent the notes in question, together with some samples of the applicant\u2019s handwriting taken from the school at which he had studied, to the Specialised Chamber of the Forensic Medicine Institute (Adli T\u0131p Kurumu Fizik \u0130htisas Dairesi) for further examination. On 21 December 2005 the Forensic Medicine Institute, despite having in its possession the writing samples of the applicant that had been examined by the police criminal laboratory, informed the public prosecutor that in order to be able to conduct an accurate examination it needed samples of the applicant\u2019s previous \u201csincere\u201d handwriting (samimi yaz\u0131lar\u0131n\u0131 i\u00e7eren belgeler), such as that he had used in exams, petitions, or personal letters. Likewise, it furthermore held that the applicant should be required to rewrite the impugned notes quickly and without having previously been shown them. It appears from the documents in the case file that the requests of the Forensic Medicine Institute were not met.","52.On an unspecified date the applicant lodged a criminal complaint with the Diyarbak\u0131r public prosecutor against the staff of Diyarbak\u0131r High Security Prison, whom he accused of misconduct on account of their having falsely accused him of carrying coded notes. On 16 January 2008 the Diyarbak\u0131r public prosecutor decided not to prosecute the accused staff for lack of evidence indicating the commission of the alleged offence. On 17April 2008 the Siverek Assize Court dismissed an objection lodged by the applicant against that decision.","53.On 9 February 2005 the Diyarbak\u0131r public prosecutor filed a bill of indictment against the applicant with the Diyarbak\u0131r Assize Court, charging him under Article 125 of the former Criminal Code with carrying out activities aimed at bringing about the secession of part of the national territory. The applicant was accused of involvement in three specific incidents: the killing of two police officers at a police checkpoint on 7September 2004 (\u201cincident 1\u201d); an armed attack against a battalion command post in Hani, Diyarbak\u0131r on 7 June 2004 (\u201cincident 2\u201d); and the forcible seizure of M.\u00c7.\u2019s telephone and identity card in early August 2004 (\u201cincident3\u201d). According to the public prosecutor, the telephone that had been taken from M.\u00c7. by force was the same one as that seized during the search of the applicant\u2019s house on 29 October 2004 \u2013 namely, a Nokia3310 mobile telephone (telephone no.4 with the IMEI no. 351342\/80\/413945\/0). That indictment did not contain any allegation as regards the applicant\u2019s alleged involvement in the attempted bombing of the 30 August 2004 Victory Day parade. Nor did it mention any other mobile telephone that the applicant was alleged to have used in relation thereto.","54.By a letter dated 24 February 2005, the applicant\u2019s lawyer asked the trial court to summon M.\u00c7. to hear him as a witness and to arrange a physical confrontation between him and the applicant.","55.At the first hearing held on 8 March 2005 the applicant denied giving self\u2011incriminating statements to the Anti-terrorism Branch of the Diyarbak\u0131r Security Directorate \u2013 in particular statements accepting ownership of certain notes found in Y.Y.\u2019s house. The applicant argued in that regard that despite the presence of a lawyer during the questioning, his statements had been misrepresented, which he had failed to notice at the time owing to the fact that he had been suffering from serious sleep deprivation. He also repeated his allegations regarding the conduct and the outcome of the house search on 29 October 2004, including the claim that two mutually contradictory search-and-seizure records had been drawn up that night.","56.At the same hearing, the applicant\u2019s lawyer requested that the handwritten notes found in Y.Y.\u2019s house be sent to the Forensic Medicine Institute for an examination aimed at determining whether they had been written by the applicant. The trial court refused that request on the grounds that the police criminal laboratory\u2019s report of 2 November 2004 had already sufficiently established that they did in fact belong to him. The applicant\u2019s lawyer also brought to the trial court\u2019s attention the paradoxical fact that only a couple of months prior to his arrest, the mobile telephone allegedly seized from the applicant\u2019s house (telephone no.4) had been identified as having been used in a bomb apparatus found at the Victory Parade. The trial court also noted that there was a criminal case against M.\u00c7. pending before another chamber of the Diyarbak\u0131r Assize Court that had been initiated on the basis of a bill of indictment dated 9 September 2004 in which it had been alleged that M.\u00c7. had given to four armed men his mobile telephone (telephone no.2), which had later been used by the latter in the mobile telephone-operated bomb apparatus in the 30 August 2004 Victory Parade. At the end of the hearing, the trial court directed that M.\u00c7. be heard as a witness.","57.At the hearing of 3 May 2005 the trial court noted that it had received the evidence collected within the context of the criminal investigation against the applicant initiated on the basis of the two notes found on him in prison on 5 April 2005, and adjourned the hearing to 28June 2005.","58.On 10 May 2005 the criminal proceedings against M.\u00c7. before the Sixth Division of the Diyarbak\u0131r Assize Court were joined to those against the applicant and thereafter continued before the trial court (the Fifth Division of the Diyarbak\u0131r Assize Court).","59.At the hearing on 28 June 2005 M.\u00c7. was confronted with the applicant. M.\u00c7. was not able to identify the applicant as one of the armed men who had stolen his telephone and identity card, as he said he had been too scared to scrutinise their faces closely at that time.","60.At the same hearing the applicant\u2019s lawyer challenged the second search conducted in the applicant\u2019s house on 6 April 2005 and alleged that had the material obtained during that search really belonged to the applicant, it would have been discovered during the initial search conducted thoroughly on 29 October 2004.","61.On 19 January 2006 the Diyarbak\u0131r public prosecutor filed another indictment against the applicant with the Diyarbak\u0131r Assize Court (case no.2006\/10 E.) in connection with the notes found on him in the prison and the material seized from his apartment in the subsequent house search on 6April 2005. The public prosecutor requested that the case be joined to the main case against the applicant (2005\/24 E.) and that the applicant be convicted on one count under Article 125 of the then Criminal Code of seeking to destroy the unity of the Turkish State and to remove part of the country from the State\u2019s control, on the basis of the material found during the search of his house on 6 April 2005. That indictment also did not contain any allegation as regards the applicant\u2019s alleged involvement in the attempted bombing of the 30 August 2004 Victory Day parade. Nor did it mention any other mobile telephone that the applicant was alleged to have used in relation thereto.","62.At the hearing on 27 December 2005 the trial court entrusted one of the members of its bench, namely Judge O.Y., with the task of (i) examining a CD containing the recording of the applicant\u2019s confession during his time in police custody to the killing of two police officers at a police checkpoint on 7 September 2004 and (ii) drawing up a report on the content of that CD.","63.On 27 January 2006 the Diyarbak\u0131r Assize Court decided to join the two cases against the applicant under the initial case number (2005\/24E) initiated following the filing of the first bill of indictment.","64.According to a report dated 6 February 2006, which was drawn up by Judge O.Y. and the clerk of the trial court, the judge watched the video recording of the applicant\u2019s unofficial interview with the police officers and the video recording of the house search conducted at the applicant\u2019s house on 6 April 2005. In respect of the first recording, the judge noted that although the sound level of the recording had been very low and had thus hindered comprehension, after playing it through a couple of times he had been able to observe that it concerned the explanations given by the applicant concerning his position in the PKK and the way he had killed two police officers in Diyarbak\u0131r on 7 September 2004. The judge furthermore noted that the applicant\u2019s bearing had been relaxed \u2013 as if he had been chatting with a friend \u2013 and the fact that he had been making jokes during his conversation with the police officers.","As for the search, the judge, after describing the exterior and interior of the apartment that the police officers had entered and noting that the number of the apartment had not been discernible, observed that items listed in the search record had been found in the flat which, according to him, might have been used as a \u201csafe house\u201d, given the state that it had been in.","65.At the hearing on 7 February 2006 the applicant denied that any notes had even been found on him during his body search on 5 April 2005. He similarly denied any connection to the material allegedly retrieved from his apartment subsequently, and stressed that his house had already been searched on 29 October 2004. The applicant\u2019s lawyer requested that the Forensic Medicine Institute carry out a handwriting analysis of the notes in question. The trial court read out the earlier report of the Forensic Medicine Institute requesting more samples of the applicant\u2019s handwriting, and decided that the lawyer\u2019s request for a further handwriting analysis would be entertained after it had viewed the video recordings of the body search in the prison. It furthermore ordered, following a request by the public prosecutor, that the video recordings of the applicant\u2019s body search in prison on 5 April 2005 be collected as evidence.","At the same hearing, the applicant\u2019s lawyer asked the trial court to exclude from the case file the CD recording of the applicant\u2019s alleged confession during his time in police custody to the killing of two police officers at a police checkpoint on 7 September 2004, arguing that it had been obtained by unlawful means. Subsequent to this request, the trial court played the above-mentioned CD in the presence of the parties and ruled that the video recording had been obtained in breach of the procedure provided under Article 148; it therefore held that it could not be considered as evidence against the applicant when reaching its future judgment.","66.At the hearing on 7 March 2006 the trial court accepted as evidence colour photocopies (i.e. not originals) of two group photographs of PKK militants, holding that one of the men resembled the applicant, despite the applicant\u2019s objection. The applicant argued that on account of the distance from which the photograph had been taken, it was very hard to make out individual features of the photographed persons. Significantly, one of the individuals among the group of PKK militants was identified as Murat Karay\u0131lan, the so-called head of the executive council of PKK\/KONGRA GEL.","67.At a hearing on 11 April 2006 the trial court was informed that the video recordings of the applicant\u2019s body search on 5 April 2005 had not been preserved, as videotapes were recorded over every five months owing to a scarcity of resources. In response to a request made by the applicant\u2019s lawyer that a further expert examination be carried out of the notes found on the applicant, the court that held that the results of such an analysis would not be material to its conclusions.","68.On 9 May 2006 the prosecutor from the Diyarbak\u0131r public prosecutor\u2019s office who prosecuted the case before the trial court (\u201cthe trial prosecutor\u201d) presented his opinion on the merits of the case. The prosecution claimed that the applicant had left Turkey in 1999 for Russia, from where he had probably gone to Northern Iraq and joined PKK camps, where he had received training in the use of guns and explosives. That assertion was corroborated by the training notes confiscated in Y.Y.\u2019s house, which had borne the applicant\u2019s handwriting. According to the prosecution, the applicant had subsequently re-entered Turkey in May 2004, from where he had carried out activities and had organised attacks for the PKK in the Diyarbak\u0131r area, such as an armed attack against a battalion command post in Hani, Diyarbak\u0131r on 7 June 2004 (incident 2); the seizure of M.\u00c7.\u2019s identity card, SIM card (no. 0535 786 91 30) and mobile telephone (telephone no.4 with the IMEI no.351342804139450) on 13August 2004, which telephone had later been found in his apartment (incident3); the attempted bombing of the 30August 2004 Victory Day parade, for which he had used a SIM card (no.05375515935) and telephone no.2 (with the IMEI no.350101912604260) purchased with the identity card taken from M.\u00c7. (an incident not mentioned in the indictment); and the killing of two police officers at a police checkpoint on 7September 2004 (incident 1).","69.Following the delivery by the trial prosecutor of his opinion on the merits on 9 May 2006, the applicant was invited to make his final defence statement. On 5 June 2006 the applicant\u2019s lawyer brought the applicant a copy of the case file to assist him in the preparation of that statement. However, the prison administration retained some of the documents in the file, without giving any justification. At the hearing on 6 June 2006 the applicant\u2019s lawyer informed the trial court of that development, and on 9August 2006 the applicant lodged a complaint with the Diyarbak\u0131r public prosecutor. The public prosecutor in charge of that complaint referred the matter to the Enforcement Court, which referred it back to the public prosecutor. It appears that the applicant was never given access to the retained material, as the public prosecutor did not take any action in respect of the matter. According to a document dated 20 July 2007 and issued by the prison governor, the documents in question concerned statements given by three witnesses \u2013 apparently, the three prison guards involved in the discovery of the notes on the applicant. The prison governor noted that although the prison administration had seized those documents and sent them to the relevant prosecutor for a decision to be made as to whether they would be handed to him, no reply had been received from the public prosecutor\u2019s office.","70.In the meantime, on an unspecified date the applicant submitted his defence statement in response to the trial prosecutor\u2019s opinion on the merits. In addition to reiterating his previous arguments, he made the following claims: he had not been allowed to see a lawyer during his detention in Istanbul; the house search of 29 October 2004 had been unlawful, and had been neither based on a prior search warrant nor authorised ex post facto; the accusations against him were based on false evidence manufactured by the police \u2013 in fact he suspected that the plain-clothes policemen who had conducted a second search in his apartment on 29 October 2004 had planted the Nokia mobile telephone (telephone no.4) in his apartment and that to cover that up, they had made him sign a search-and-seizure record that had not mentioned that telephone; various expert reports relied on as evidence against him had been prepared by the police criminal laboratory, which was a party to the proceedings; the police criminal laboratory had somehow been able to establish that the notes allegedly found in the prison had been written by him, whereas the Forensic Medicine Institute, staffed by specialised doctors, had not been able to reach the same conclusion on the basis of the same material, and the trial court had inexplicably disregarded the Forensic Medicine Institute\u2019s request for further sample material for a conclusive handwriting analysis; interestingly, none of the material allegedly seized from his house on 6 April 2005 had been found during the previous search; it was illogical and unrealistic that no other prison inmates or officers had witnessed his body search on 5April 2005, and even more shocking that the video recordings of the search had been deleted; if any notes had been found on him, as alleged, his visiting rights would have been suspended immediately, whereas he had been allowed to see his mother on the date of his body search; the claims of the prosecution that he had been trained by the PKK and that he had been active as a terrorist in the Diyarbak\u0131r area were pure speculation; there was no shred of evidence to attribute the attempted bomb attack of the Victory Day parade to him, and by holding him responsible for that attack \u2013 which was not included in the indictment \u2013 the trial prosecutor had changed the nature of the accusations without giving him prior warning to submit additional defence arguments; he had witnesses to attest to his presence in Istanbul at the time of M.\u00c7.\u2019s encounter with the PKK militants in Diyarbak\u0131r; and his right to defend himself had been curtailed by the prison administration, which had arbitrarily prevented him having access to certain documents in his case file. In his closing remarks, the applicant argued that the investigating authorities were deliberately overcomplicating the case.","71.On 17 April 2007, in response to a request by the trial court, Turkcell submitted a breakdown of the call records of the mobile telephone recovered from the applicant\u2019s house (telephone no.4) for the dates between 5August and 11 September 2004. The report indicated that the telephone had been used to make calls from two different telephone numbers (one of them belonging to M.\u00c7.) until 13 August 2004 and from a third number after that date. The owners of the other two numbers, however, were not identified.","72.On 24 April 2007 the Diyarbak\u0131r Assize Court delivered its judgment on the case. It held that there was insufficient evidence in the case file to establish the applicant\u2019s guilt (as presented in the indictment) in relation to incidents 1 and 2, (that is to say the killing of two police officers and the armed attack on a battalion command post). However, having regard to the content of the case file as a whole, it nevertheless concluded that the applicant had, as charged, committed the crime (under Article 125 of the former Criminal Code) of seeking to destroy the unity of the Turkish State and to remove part of the country from the State\u2019s control.","73.In its reasoned judgment, the court firstly reproduced the content of the indictments on the basis of which the applicant had been tried, summarised the statements made by the applicant before the police, the public prosecutor, the investigating judge and the trial court, and listed thirty-one pieces of evidence in the part of its judgment entitled \u201cEvidence\u201d, which included, inter alia, a report from the police criminal laboratory dated 31August 2004 (report number 2004\/654), which noted that the deactivated bomb had contained traces of trinitrotoluene (TNT) and nitroglycerin.","The Nokia 3310 mobile telephone with the IMEI number 350101912604260 (telephone no.2, which would later be accepted to have been used in the bomb apparatus on 30 August 2004) was not listed as evidence, and the IMEI number of the other Nokia 3310 mobile telephone (telephone no.4, which had allegedly been found at the applicant\u2019s house in Istanbul on 29 October 2004) was indicated as 351342180\/41339510 (as opposed to 351342804139450).","After citing the trial prosecutor\u2019s opinion on the merits of the case, the trial court made its assessment, which comprised (a) \u201cThe substance of the case\u201d; (b) \u201cThe organisation of which the applicant is a member\u201d; (c) \u201c[The applicant\u2019s] entry into the organisation and his position and activities therein\u201d; and (d) \u201cThe applicant\u2019s actions\u201d. The following part of the reasoned judgment, entitled \u201cAssessment of the legal situation of the applicant\u201d was almost identical to the above-mentioned section(c):","\u201c ... [it has been understood] that the defendant has been trained by the organisation in bomb making, arms and explosives; that certain notes and explosives belonging to the defendant were seized during the search of Y.Y.\u2019s house; that the defendant entered Turkey in May and has been active in the rural parts of Kulp-Lice-Hani as a combatant; that on 13August 2004, [together with three members of the organization], he forcibly took, in the name of the organisation, ... M.\u00c7.\u2019s identity card, his Nokia 3310 mobile telephone with the IMEI number 351342804139450 [telephone no.4] and his SIM card with the GSM no.0535 786 91 30 ...; that in order to avoid being caught he obtained a false identity card on 25 August 2004 from the Adana-Seyhan Civil Registry Office by using the identity information of M.M.K.; that on 28 August 2004 a SIM card with GSM no. 0537 551 59 35 and a Nokia 3310 mobile telephone with the IMEI number 350101912604260 [telephone no.2] were purchased, a remotely controlled handmade pressure and cluster bomb [par\u00e7a tesirli uzaktan kumandal\u0131 bomba] was manufactured using that telephone, and the bomb in question was placed under a stone near ... Selahattin Yaz\u0131c\u0131o\u011flu Boulevard on 30August 2004, where the Governor of Diyarbak\u0131r], the Head of the Diyarbak\u0131r Security Directorate and the local military commander would be marching; that the search conducted at the defendant\u2019s house revealed one 9 mm Browning handgun with the serial number 245 PX 02040, one cartridge clip, thirty-three 9 mm. cartridges, four electric detonators (which were destroyed after being examined), 830grammes of explosives, 5 metres of copper wire, 3 metres of soldering wire, one soldering machine, and one alarm clock; [and that] having regard to the fact that the acts and activities that were committed by the defendant within [the context of] an organisational commitment and within the organic integrity throughout the country [\u00f6rg\u00fctsel ba\u011fl\u0131l\u0131k ve \u00fclke genelindeki organik b\u00fct\u00fcnl\u00fck i\u00e7inde] were \u201cdirected acts\u201d [matuf fiil] that were capable of posing a danger of the intended outcome being realised, and having further regard to the fact that these acts were serious, in view of the manner and the timing of the commission of the offence and its effects on society (the acts in question were capable of having devastating and drastic repercussions on society), the defendant committed the imputed offence of `bringing about the secession of part of the national territory` set out in Article 125 of the Turkish Criminal Code (Law no. 765)...\u201d","74.Under subsection (d) (\u201cThe applicant\u2019s acts\u201d) and under the part concerning incident no. 3, the trial court went on to hold as follows:","\u201c... it has been concluded that the offence attributed to the defendant was established [after] assessing [the following] facts in their entirety: the fact that the SIM card [which had been] purchased with the identity card belonging to M.\u00c7. was used in the ... bomb found under a stone near ... Selahattin Yaz\u0131c\u0131o\u011flu Boulevard on 30August 2004, as specified in the police criminal laboratory\u2019s expert report dated 30August 2004 and numbered 2004\/654; and the fact that a telephone call was made \u03bfn 29August 2004 with the SIM card purchased on behalf of M.\u00c7. ...\u201d","75.On the basis of its aforementioned conclusion, the Diyarbak\u0131r Assize Court sentenced the applicant to aggravated life imprisonment without the possibility of parole (a\u011f\u0131rla\u015ft\u0131r\u0131lm\u0131\u015f m\u00fcebbet hapis cezas\u0131). In response to the applicant\u2019s defence submissions, the trial court only stated that the Nokia3310 mobile telephone (telephone no.4 with the IMEI number351342804139450) had been found during the search of the applicant\u2019s house, which had been carried out in accordance with the law and the search order dated 6 April 2005 (despite the fact that the search order in respect of the search of the applicant\u2019s house that had yielded the impugned mobile telephone was dated 29 October 2004). It did not respond to any of the challenges raised by the applicant against the evidence on which his conviction was based. By the same judgment, the trial court also convicted Y.Y. of aiding and abetting members of the PKK, but acquitted M.\u00c7. of the same charge.","76.On 12 January 2008 the applicant lodged an appeal against the judgment of the Diyarbak\u0131r Assize Court. Largely reiterating his previous allegations and objections, he claimed that his conviction had been based on unilateral allegations (tek yanl\u0131 iddialar) that had failed to take into account his requests, objections, evidence and witnesses. He lastly contended that the judgment was ambiguous as to whether he had been convicted for robbing M.\u00c7., for the attempted bombing of the Victory Day parade, or for both. In any event, there was no reliable evidence to prove that he had committed either of those offences, or any other offences for that matter.","77.Following the conclusion of the criminal proceedings against the applicant before the Diyarbak\u0131r Assize Court, the Security Directorate sent a letter addressed to the Diyarbak\u0131r public prosecutor\u2019s office; it would appear that the letter was also seen by the trial court, despite the fact that the top\u2011right corner was signed (by way of confirmation that he had read it) by a judge who had not been involved in the applicant\u2019s trial. The letter explained that following an armed clash between the security forces and terrorists on 13 January 2007, a \u201cregistry book\u201d (\u00f6rg\u00fct sicil defteri) containing the names of members of the terrorist organisation had been seized in the vicinity of the area where the clash had taken place, in which the following information had been written: \u201cCode: Mervan Zo\u011fros, Name: Ayetullah Ay, Name of [his] father and mother: H. and A., Address: village of Kulp Yan\u03b9k, Diyarbak\u0131r \u2013 Arrested.\u201d In view of the fact that the case file was awaiting examination by the Court of Cassation following the delivery of the trial court\u2019s judgment, the trial court did not conduct any examination of that piece of evidence.","78.On 11 February 2008 the Court of Cassation upheld the Diyarbak\u0131r Assize Court\u2019s judgment, ruling that the applicant\u2019s participation in various activities of the PKK with the aim of bringing about the secession of part of the national territory had been proved in the light of the evidence assessed by the trial court. The Court of Cassation did not respond to the objections lodged by the applicant before it delivered its judgment (see paragraph70 and76)."],"189":["1. The applicant company, B.Z. Ullstein GmbH, is a German private limited company whose registered office is in Berlin. It was represented before the Court by Mr S. Aroukatos, a lawyer practising in Dresden.","The circumstances of the case","2. The facts of the case, as submitted by the applicant company, may be summarised as follows.","Background to the case","3. In the early hours of 23 April 2011, P., who was 18 years old at the time, attacked a man in a subway station and hit him on the head with an almost full, hard plastic bottle. When the man was lying on the ground, P. kicked his head several times, causing a severe craniocerebral injury. P. also inflicted injuries on a man who had come to the aid of the injured man. P. was able to escape from the crime scene unrecognised. However, the incident had been recorded by surveillance cameras. As part of an appeal for information, the recordings were made public and shown in the mass media (for example, Tagesschau, bild.de ). P. turned himself in to the police shortly afterwards.","4. Prior to the start of the trial, the Berlin Regional Court ordered the media not to report on the trial in a way which would make P. identifiable to the public. On 23 August 2011 the trial began with a confession from the accused.","5. On 24 August 2011 a report on the first day of the trial appeared in the applicant company \u2019 s newspaper B.Z.. It contained several pictures: a pixelated photo of P. which had been taken in the courtroom, a picture from the surveillance camera which showed P. kicking the victim, and an unpixelated portrait photo from an unknown source in which P. could be identified (caption: \u201cThat is why B.Z. shows the face of Torben P.\u201d). In the accompanying text, it was stated that the newspaper had abided by the court order in order to ensure that the Court would not forbid the newspaper \u2019 s journalists to attend the trial. However, the newspaper explained that, due to public interest in P. \u2019 s identity, it had decided to publish a photo that had been taken outside the main trial.","6. On 8 September 2011 the Hamburg Regional Court granted P. a temporary injunction against the applicant company prohibiting the publication of the portrait photo.","7. On 19 September 2011 the criminal proceedings at the Berlin Regional Court ended with a conviction for attempted manslaughter and other offences. The court imposed a prison sentence of 2 years and 10 months on P., who appealed. On 28 March 2012 the Federal Court of Justice confirmed the judgment of the Berlin Regional Court.","Proceedings instituted","8. On 13 April 2012, following an oral hearing on 3 February 2012, the Hamburg Regional Court issued an injunction prohibiting the applicant company from distributing or publishing the portrait photo of P. In its judgment, the court addressed the considerable public interest in the proceedings, which had been aroused in particular by the outbreak of juvenile violence and by the reference to the debate on video surveillance of public spaces. However, it was also necessary to take into account the fact that P. had been a young adult ( Heranwachsender ) at the time of his crime and benefitted therefore from particular protection under the provisions of the criminal law relating to young offenders. In this respect the Regional Court pointed out that the Juvenile Courts Act aimed at imposing appropriate and reasonable educational sanctions on the one hand, but also at avoiding a stigmatisation of the young offender in view of his still ongoing personal development and his social and professional integration on the other hand. Identifying media coverage bore the risk of compromising P. \u2019 s personal development and his later resocialisation which was particularly important for young adult offenders as the Juvenile Courts Act provided for limited sentences and simplified rules regarding early release.","9. The Regional Court also took into account the presumption of innocence which applied to P. despite his confession. It further assumed that P. could not be identified from the surveillance camera recordings. He had therefore not been known to the public until the publication of the portrait photo in the applicant company \u2019 s newspaper. Other media had only published pixelated photos of P. before. When balancing the competing interests, the court held that prohibiting the applicant company from publishing the identifying photograph did not restrict the exercise of freedom of the press significantly.","10. On 9 July 2013 the Hamburg Court of Appeal confirmed the judgment of the Hamburg Regional Court and dismissed the applicant company \u2019 s appeal. With regard to P. \u2019 s confession, it emphasised that P. had not sought publicity. As the accused he had been obliged to attend the hearing. The court also pointed out that reporting had still been possible and that the minor restriction had been justified, particularly since the information value of the portrait photo was only limited.","11. On 13 January 2016 the Federal Constitutional Court refused to admit for adjudication a constitutional complaint brought by the applicant company, without providing reasons (1 BvR 3061\/14).","Relevant domestic law and practiceThe Civil Code","The Civil Code","The Civil Code","12. Article 823 \u00a7 1 of the Civil Code ( B\u00fcrgerliches Gesetzbuch ) states that anyone who, acting intentionally or negligently, unlawfully violates the rights to life, physical integrity, health, liberty, property or similar rights of others is required to afford redress for any damage arising in consequence.","13. Under Article 1004 \u00a7 1 of the Civil Code, where another \u2019 s property is damaged otherwise than by removal or illegal retention the owner may require the perpetrator to cease the interference. If there are reasonable fears that further damage will be inflicted, the owner may seek an injunction.","The Copyright (Arts Domain) Act","14. Section 22(1) of the Copyright (Arts Domain) Act ( Gesetz betreffend das Urheberrecht an Werken der bildenden K\u00fcnste und der Photographie \u2013 Kunsturhebergesetz ) provides that images representing a person may be distributed only with the express permission of the person concerned. The first paragraph of section 23(1) of the Act provides for exceptions to this rule where the images portray an aspect of contemporary history ( Bildnisse aus dem Bereich der Zeitgeschichte ), on condition that publication does not interfere with a legitimate interest ( berechtigtes Interesse ) of the person concerned (section 23(2))."],"190":["2.The applicant was born in 1973 and lives in Riga.","3.The Government were represented by their Agent, Ms K. L\u012bce.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","Background information","5.The applicant is a lawyer. At the time of the impugned article her partner, J.N., was the chairman of a political party that did not have seats in Parliament. From 1995-2001 he had been the director-general of a State\u2011owned joint-stock company. He had also taken part in a nationwide advertising campaign in a weekly celebrity-focused magazine, Priv\u0101t\u0101Dz\u012bve, that appeared in 76,000 copies with a readership of about 474,000.","6.In 2003 Priv\u0101t\u0101 Dz\u012bve published an article about the dissolution of J.N.\u2019s previous marriage. J.N. had commented on his new relationship with the applicant and had said that they would soon become parents. The article included two photographs of the applicant \u2013 one was a portrait and the other showed her sitting in a public location. In the autumn of 2003, the applicant\u2019s and J.N.\u2019s first child was born.","7.On 30November2004 Priv\u0101t\u0101 Dz\u012bve published an article about the birth of the applicant\u2019s second child. A covertly taken photograph of the applicant was used on the magazine\u2019s cover. It showed her leaving hospital carrying her newborn baby in a car-seat. Her partner J.N. could be seen walking behind her. The photograph had the caption: \u201cOne year on [J.N.] has another child.\u201d","8.On page four under the rubric \u201cChildren of celebrities\u201d there was a short article with the headline \u201c[J.N.] does not make it in time for the birth of his son\u201d. The article was based on a telephone conversation with J.N., who had provided some information about the birth of his son, such as his weight, height and time of birth. The article was accompanied by nine covertly taken photographs, including the cover photograph, all showing the applicant and J.N. leaving hospital. In addition to the cover photograph, the applicant could be seen in three of them \u2013 standing at entrance to the hospital, standing together with J.N., and fixing the windscreen wiper of her car. The other photographs showed either J.N. or both of them leaving the hospital grounds in their cars. The photographs were supplemented with captions addressing the quantity and type of belongings the applicant had had while in hospital, the fact that the applicant and her partner had arrived and departed with their own cars, and that a windscreen wiper had been broken and the pair had tried to fix it.","9.On 10March2006, relying on Articles 89 and 96 of the Constitution (protection of fundamental rights and right to private life), section 1635 of the Civil Law (right to compensation) and Article 8 of the Convention, the applicant brought a civil claim against the publisher, the editor-in-chief, and the journalist who had written the piece. She argued that by covertly taking photographs of an important and intimate moment of her life \u2013 leaving hospital with a newborn baby \u2013 and publishing them in a magazine without her consent and in the absence of any public interest, the defendants had infringed her right to respect for her private life.","10.In a judgment of 10January 2007 the Riga City Central District Court ruled in the applicant\u2019s favour. It observed that it had not been contested that the photographs had been taken covertly and that they had been published without the applicant\u2019s permission. Furthermore, it had not been argued that the applicant was a public figure. While the article primarily concerned J.N., it did not refer to him as a person carrying out any active political functions. Therefore, the interference in the applicant\u2019s private life could not be justified by a reference to society\u2019s right to be informed of the activities of a public person. Having found a violation of the applicant\u2019s right to private life, the court ordered the editor-in-chief to publish an apology on pages one, four and five of the magazine, and to pay compensation for non-pecuniary damage in the amount of 700Latvian lati (approximately 1,000 euros (EUR)).","11.In response, on 30 January 2007 Priv\u0101t\u0101 Dz\u012bve republished the article of 30 November 2004 with the same photographs and captions, along with an editorial note expressing disagreement with the judgment.","12.In a judgment of 11December2007 the Riga Regional Court overturned the first-instance court\u2019s judgment and dismissed the applicant\u2019s claim.","13.On 10September2008 the Senate of the Supreme Court quashed the appellate court\u2019s judgment. It pointed out that the applicant had relied on the Court\u2019s 2004 judgment in the case of Von Hannover v. Germany (no.59320\/00, ECHR 2004\u2011VI) and the appellate court had failed to provide reasons as to why this judgment had not been relevant for deciding the case.","14.On 11December2008 the Riga Regional Court adopted a new judgment, again dismissing the applicant\u2019s claim. It observed that the photographs featuring the applicant leaving hospital while holding her newborn baby had been taken covertly. However, relying on the Declaration on mass communication media and Human Rights (Resolution428(1970) of the Parliamentary Assembly of the Council of Europe, adopted on 23January 1970), it noted that absolute privacy did not exist and a person had to come to terms with the fact that an interference with private life could take place at any time and place. The assessment of the seriousness of the interference had to be made by the domestic courts.","15.The Riga Regional Court then noted that the interference had to be assessed in the light of the person\u2019s role in society and attitude to publicity. The child\u2019s father, J.N., was a public figure \u2013 he was known as the former chair of a State-owned company, the current chair of a political party, and as the advertising face of Priv\u0101t\u0101Dz\u012bve. In August 2003 Priv\u0101t\u0101 Dz\u012bve had published an article about J.N.\u2019s divorce and about the fact that J.N. and the applicant had been expecting a child. The impugned article had been a continuation of that initial article and had informed the readers that the child mentioned in the article of 2003 had been born (confer paragraph 65 below). That information had been accompanied by nine photographs that formed an essential part of the article. The photographs had been taken in a public place \u2013 in the street \u2013 and the applicant had not been depicted in a humiliating manner. They had been taken to illustrate a specific event and had not been connected with following the applicant\u2019s everyday life and covertly photographing intimate moments of her private life.","16.Furthermore, the impugned article had been written on the basis of the information provided by J.N. The applicant had had no grounds to believe that the information about the birth of her child would not be disseminated or that it would be relayed without mentioning her as the child\u2019s mother. As a partner of a public person and a mother of his child, the applicant had to take into account that she could attract media attention and that articles might contain information about his family members, as had happened in the impugned \u201cphoto story\u201d. The 2003 article had also featured the applicant\u2019s photographs, to which she had not objected. The applicant\u2019s attitude towards publicity had also been demonstrated in a subsequent interview, published in a different magazine in 2005, where she had given information about her private life, relationship with J.N., stance towards marriage, and her opinions as an activist for gender equality. In particular, the applicant had been quoted as having expressed awareness that the public had taken an interest in her owing to her being J.N.\u2019s partner.","17.With respect to the applicant\u2019s reliance on the Court\u2019s 2004 judgment in the case of Von Hannover (cited above) the Riga Regional Court noted, firstly, that photographing a person in a public place, albeit without his or her consent, did not constitute an interference with private life. Furthermore, the Court\u2019s interpretation of the Convention could only be applied if the factual circumstances of the two cases were identical. However, there were fundamental differences between the two cases. The photographing of the applicant had only taken place to reflect one particular event \u2013 the birth of J.N.\u2019s child \u2013 and had not been connected with tracking her daily life; J.N. was a public person who had given information about the birth of his child; the impugned article had depicted the private life of J.N. and the applicant had been featured there only because she had been his partner and they had had a child. Accordingly, the applicant\u2019s right to private life had not been breached.","18.In an appeal on points of law lodged by the applicant she argued that the appellate court had incorrectly applied the case-law of the Court. In particular, the Court\u2019s case-law should be applied in a general manner, and not only in analogous factual circumstances. The appellate court had not analysed whether the interference in her private life had had a legitimate aim and whether it had been necessary in a democratic society, as required by Article 8 of the Convention.","19.On 22September2010 the Senate of the Supreme Court dismissed the applicant\u2019s appeal on points of law. It endorsed the appellate court\u2019s findings and reasoning, having found no support for the applicant\u2019s assertion that there had been systematic flaws in the application of the Court\u2019s case-law. Contrary to the applicant\u2019s allegation, the appellate court had applied the principles established by the Court in its 2004 judgment in case of Von Hannover (cited above).","20.The Supreme Court considered the conclusion that the taking of photographs in a public place without the person\u2019s consent did not constitute an interference with the right to private life to be in line with the Court\u2019s case of Peck v. the United Kingdom (no.44647\/98, ECHR 2003\u2011I). The appellate court had also rightly found that the photographs had not depicted the applicant in a humiliating manner and that they had been obtained to depict one particular event, and had not been the result of following her daily life or secretly photographing intimate moments of her life. As J.N. had informed the public about the pregnancy, the child\u2019s birth and leaving hospital had been turned into a public event.","21.The Senate of the Supreme Court disagreed with the applicant that the appellate court had failed to assess whether the article depicting her private life had contributed to a public debate. Firstly, J.N. was a public person. Secondly, some aspects of their private life had already been disclosed in the 2003 article in Priv\u0101t\u0101 Dz\u012bve, where J.N.\u2019s divorce and the applicant\u2019s pregnancy had been mentioned. Thirdly, the 2003 article had stirred a debate about J.N.\u2019s private life and family values, as at that time he had still been married to another woman. The impugned photographs had shown that the awaited event described in the 2003 article \u2013 the birth of the child \u2013 had taken place (confer paragraph 65 below).","22.The Senate of the Supreme Court also dismissed the applicant\u2019s argument that her failure to challenge the 2003 article had not rendered future publication of her photographs lawful. As the applicant had not objected to the article in 2003, the journalist could have concluded that she would also have no objections against the publication of information and photographs about the birth of her child. The applicant had to take into account that articles about a public person might contain information about their family members. The \u201cphoto story\u201d had depicted an event in J.N.\u2019s private life and, in the absence of objections to the previous article, had also showed the applicant."],"191":["2.The applicant was born in 1942 and lives in Istanbul. He was represented by Mr M. \u0130pek, a lawyer practising in Istanbul.","3.The Government were represented by their Agent.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant is a member of the Uzan family and the brother of K.Uzan (hereinafter referred to as \u201cK.U.\u201d), who founded one of the biggest conglomerates in Turkey, operating in a variety of sectors, ranging from banking and finance to media and telecommunications (\u201cthe Uzan Group\u201d). In addition to the family\u2019s business activities, K.U.\u2019s son, C.C.U., was the president of Gen\u00e7 Parti, a political party that he founded in 2002 (see Uzan v.Turkey, no. 30569\/09, 20 March 2018 for further information on the political activities of C.C.U.).","6.The applicant, a construction engineer by profession, served in different capacities in a number of Uzan Group companies, including, as pertinent to the present case, as the vice-chairman of the board of directors of Merkez Yat\u0131r\u0131m A.\u015e. (hereinafter referred to as \u201cMerkez Yat\u0131r\u0131m\u201d), an information technology (IT) company. The said company provided services to various other companies in the Uzan Group, including a bank by the name of T\u00fcrkiye \u0130mar Bankas\u0131 T.A.\u015e., (\u201c\u0130marbank\u201d). Merkez Yat\u0131r\u0131m also had shares in \u0130marbank.","7.On 3 July 2003 the Banking Regulation and Supervision Agency (Bankac\u0131l\u0131k D\u00fczenleme ve Denetleme Kurulu \u2013 hereinafter referred to as \u201cthe BRSA\u201d) revoked \u0130marbank\u2019s licence to conduct banking operations and receive deposits, in view of the bank\u2019s failure to discharge its obligations to the State and its depositors and of the risks it posed to the financial security and stability of the country. It also took over the bank\u2019s management (for further details on that process see Uzan and Others v.Turkey, no. 19620\/05 and 3 others, \u00a7\u00a7 6 and 7, 5 March 2019). According to the information obtained from the criminal proceedings subsequently brought against the applicant in relation to the activities of \u0130marbank (see paragraphs 9-28 below), all board members of \u0130marbank and Merkez Yat\u0131r\u0131m, including the applicant, had resigned from their positions shortly before the takeover. It furthermore appears that the senior management of Merkez Yat\u0131r\u0131m informed BRSA that they would not provide IT services to the new management.","8.Following that, an audit was carried out by the BRSA on the accounts and operations of \u0130marbank and Merkez Yat\u0131r\u0131m. The extensive audit reports prepared by certified bank auditors showed that the bank had vastly misrepresented its accounts (officially declaring only one tenth of its deposits), as well as engaging in other fraudulent activities, such as tax evasion, which had allowed it to keep some 8,498,904,566,609,113 Turkishliras (TRL \u2013 approximately 4,743,430,000 euros (EUR) at the material time) off the books. Over the course of many years, the said amount had been largely funnelled to other Uzan Group companies via the bank\u2019s offshore accounts (\u201c\u0130mar offshore\u201d). It was also used for personal gain by some members of the Uzan family, including the applicant, and the senior management of \u0130marbank, for example for payment of their personal taxes. The reports established that the fraudulent activities in question had been carried out through the accounting software developed by Merkez Yat\u0131r\u0131m for the use of \u0130marbank. It was also discovered during the audits that Merkez Yat\u0131r\u0131m provided services exclusively to companies in the Uzan Group, including \u0130mar offshore, in which the applicant had also formerly held shares and been a board member.","9.Based on the findings of the audit, criminal proceedings were brought against twenty-five people \u2013 board members and senior managers of \u0130marbank and Merkez Yat\u0131r\u0131m, including the applicant and his brother, K.U. \u2013 in connection with the allegedly fraudulent activities carried out at \u0130marbank. On 11 September 2003 the applicant was arrested and placed in pre\u2011trial detention.","10.On 3 December 2003 the Istanbul public prosecutor filed a bill of indictment in respect of the twenty-five suspects with the Istanbul 5th Assize Court, which, under the relevant procedural laws in force at the material time, had competence and jurisdiction over the case. Charges were brought under section 22(3) of the former Banking Activities Act (Law no.4389) for embezzlement, and under Article 313 \u00a7 1 of the former Criminal Code (Law no. 765) for setting up, or taking part in, an organisation with a view to committing offences. The applicant\u2019s brother K.U., who was the head of the Uzan Group and the chairman of both \u0130marbank and Merkez Yat\u0131r\u0131m, was accused of heading the criminal organisation that had committed the suspected bank fraud. The applicant, who had no managerial responsibilities and owned no shares in \u0130marbank, was primarily accused of participating in this criminal enterprise by enabling the embezzlement of the bank\u2019s money through the software that Merkez Yat\u0131r\u0131m had developed for the use of \u0130marbank.","11.On 15 December 2003 the Istanbul 5th Assize Court held a preparatory hearing (tensip) on the case.","12.On 26 December 2003, before the Istanbul 5th Assize Court held the first hearing in the applicant\u2019s case, Law no. 5020 on Amendments to the Banking Activities Act and Some (other) Acts entered into force. In accordance with section 26(2) of that new Law, criminal proceedings concerning the offence of embezzlement laid out in section 22(3) and (4) of the former Banking Activities Act, as well as other related offences that fell within the jurisdiction of the assize courts, would be conducted before the 1st Assize Court in the province in which the relevant bank was located. Section 26(2) provided in addition that where deemed necessary the High Council of Judges and Prosecutors (\u201cthe HCJP\u201d) could, following a proposal of the Ministry of Justice (\u201cthe Minister\u201d), assign other assize courts in the relevant province to try such offences, or set up a new assize court for that purpose. Temporary provision 2 of Law no.5020 further provided that public prosecutors and judges charged with investigating or hearing cases concerning the relevant banking offences would act expeditiously and that they could not be reassigned to another location or post for a period of three years, save for disciplinary purposes or unless they had valid reasons for requesting such reassignment.","13.Following a proposal made by the Ministry of Justice, on 15January 2004 the HCJP put the Istanbul 8th Assize Court into operation, which, according to the information provided by the Government (see paragraph36 below), had been established by the Ministry of Justice back on 16April 1978, but which had not been operational. The Istanbul 8th Assize Court was granted exclusive jurisdiction to try the offences indicated under section26(2) of Law no. 5020 as a specialised court.","14.Accordingly, on 26 January 2004 the applicant\u2019s case was transferred from the Istanbul 5th Assize Court to the Istanbul 8thAssize Court (case no.2004\/1 E.).","15.From the start of the proceedings, the defendants challenged the constitutionality of the Istanbul 8th Assize Court. They claimed that the establishment of that court had been contrary to the universal principle of a \u201cnatural judge\u201d provided under Article 37 \u00a7 1 of the Constitution and Article6 \u00a71 of the Convention, for it was an extraordinary court established after the commission of the alleged offences. They therefore requested the referral of the matter to the Constitutional Court for a ruling on the constitutionality of the Istanbul 8th Assize Court.","16.At the hearing held on 15 April 2004, the Istanbul 8th Assize Court rejected the plea for referral to the Constitutional Court. It stated at the outset that Law no. 5020 that amended the former Banking Activities Act had been adopted in Parliament by a large majority and had been signed by the President of the Republic, who himself had been a former Constitutional Court judge. The constitutionality of the relevant legal amendments had not been challenged by any competent authorities, and the new Law had found wide acceptance among the public.","17.It held that, from a legal perspective, the 8th Assize Court had been established by the HCJP \u2013 a constitutional institution which was almost entirely comprised of high court judges \u2013 by reason of perceived necessity, having regard to the workload of the assize courts in Istanbul and with the purpose of delivering justice in a prompt manner. The 8th Assize Court was not governed by a separate legal framework, nor did it have a separate organisational structure from the other assize courts. The judges appointed to that court were competent to serve in all Istanbul courts. It further emphasised that the right to a fair trial under Article 6 of the Convention included first and foremost the right to be tried by a competent and well-informed judge. Courts with special jurisdiction, such as that one, were a manifestation of that right and they served the interests of the accused. The unprecedented developments witnessed in global economic relations and technology had brought about a new generation of economic crimes, which required specialised courts equipped to deal with such complex matters. It therefore concluded that its establishment as a specialised court was not only in compliance with the principle of \u201cnatural judge\u201d, but that it actually served the requirements of the right to a fair trial.","18.At the close of the same hearing, the Istanbul 8th Assize Court ordered an on-site inspection on the premises of \u0130marbank and Merkez Yat\u0131r\u0131m, in order to assess the veracity of the evidence in the case file and of the defence statements, and thereby to establish the material facts of the case. It stated that the inspection \u2013 which was to be conducted by the court\u2011appointed experts \u2013 would focus on four areas: the operation of \u0130marbank\u2019s automation system; the bank\u2019s offshore accounts; the sale of Treasury bonds by the bank; and the embezzlement of money collected from clients as taxes. The court also commissioned another group of experts \u2013 consisting of a professor of criminal law, a professor of commercial law and a certified bank auditor \u2013 to prepare, following the submission of the aforementioned inspection reports, an abbreviated report on all the factual findings in the case file, including the defendants\u2019 participation in the commission of the alleged offences.","19.Between September and December 2004 the experts submitted their inspection reports, and in December 2004 the abbreviated report was delivered. The results of the reports largely coincided with the earlier reports prepared by bank auditors (see paragraph 8 above). In particular, they confirmed the findings regarding the involvement of Merkez Yat\u0131r\u0131m in the fraudulent activities in question, which had taken the form of preparing the technical infrastructure for the conduct of such activities and providing technical support for their use. They stressed in that connection that having regard to the scope and the characteristics of the fraudulent operations that could be performed with the use of the accounting software in question, it was evident that the software had been custom-designed for the very purpose of enabling such operations. They further found that Merkez Yat\u0131r\u0131m agents had also taken part in efforts to remove data during the handover of the bank management to BRSA to prevent the discovery and tracing of the fraudulent transactions. Moreover, the collective resignation of the board members and the senior managers of Merkez Yat\u0131r\u0131m and \u0130marbank right before the handover (see paragraph 7 above) showed a unity of action that strongly suggested that the relevant individuals had been aware of the illegal acts in question and had taken part in those acts.","20.In his defence statements throughout the proceedings the applicant denied the charges against him and demanded his acquittal. He claimed that his situation was the most \u201cdramatic\u201d among all the defendants, as he had been charged solely on the grounds of his kinship with K.U. He admitted to having worked closely with K.U. for some fifty years. He also stated, however, that he was a construction engineer by profession, that his participation in the Uzan Group companies, including Merkez Yat\u0131r\u0131m, had been only symbolic, and that he had no knowledge or experience of banking or IT operations. He claimed that he had never been to the operation centre of Merkez Yat\u0131r\u0131m, that he did not know how the company\u2019s IT system was run, that he had only participated in meetings concerning the company\u2019s general management, and that all decisions concerning technical matters had been delegated by the board to the company\u2019s directors. Those directors had also indicated in their submissions before the court that they had never seen him on the company premises and that they had taken no instructions from him. He claimed, therefore, that in the absence of any tangible evidence implicating him in person, he could not be held accountable for the offences at issue. He added that, in any event, the elements of the relevant offences had not been present in the instant case; that the responsibility of Merkez Yat\u0131r\u0131m as a service provider had ceased once it had delivered the relevant software to \u0130marbank; and that there had been no criminal organisation engaged in embezzlement, but only a badly managed bank that had made a loss.","21.On 21 February 2006 the Istanbul 8th Assize Court handed down its judgment in the case. It decided to convict the applicant as charged and to sentence him to (i) one year and eight months\u2019 imprisonment for membership of an organisation founded for the purpose of committing a crime, and (ii) fifteen years, six months and twenty days\u2019 imprisonment, together with a fine in the amount of 19,426,377,822 Turkish liras (TRY[1]) (equivalent of approximately 12,314,900,000 euros (EUR) at the material time), for aggravated embezzlement. Sixteen of the defendants were acquitted of both charges, due to the absence of sufficient evidence against them.","22.In its 520-page judgment the Istanbul 8th Assize Court reviewed some fifteen reports prepared by certified bank auditors, bank inspectors and the Capital Markets Board (Sermaye Piyasas\u0131 Kurulu) in the aftermath of the revocation of \u0130marbank\u2019s banking licence (see paragraph 8 above), as well as the inspection reports and the abbreviated report mentioned in paragraph19 above. It made it clear, however, that it had only taken into consideration those findings in the reports which had involved technical assessment, and not those that had entailed assessments of a legal nature, as such assessment was the duty of the court and not of experts. It also stated expressly that throughout the proceedings it had paid the utmost regard to its obligations arising from the right to a fair trial as set out in, inter alia, Article6 \u00a7 1 of the Convention and the related case\u2011law of the Court. The trial court accordingly confirmed that the defence statements had been assessed in the most extensive way possible, any witnesses called by the defence had been examined, and any evidence that had not been subject to examination during the proceedings had not been taken into account in the verdict.","23.Relying on the information and documents in the case file, the Istanbul 8th Assize Court examined in detail whether the elements of the offences in question had been established in the instant case and whether and how all the accused, including the applicant, had played a part in the commission of those offences. The trial court held that this crime \u2013 the biggest banking corruption incident in the country\u2019s history \u2013 had been facilitated by the software programme developed for \u0130marbank by Merkez Yat\u0131r\u0131m, which had exclusively catered to Uzan-group companies. The programme had been used to divert money, inter alia, to other companies in the Uzan Group. Having regard (i) to the fact that this criminal enterprise had been headed by the applicant\u2019s brother, who had also been the chairman of Merkez Yat\u0131r\u0131m and with whom the applicant had admitted to having very close ties, including working relations over the course of many years, (ii)to the applicant\u2019s position as the vice-chairman of Merkez Yat\u0131r\u0131m, in addition to his duties in other Uzan-group companies, and (iii) to the instrumental role played by Merkez Yat\u0131r\u0131m over the years in funnelling tremendous amounts of money from \u0130marbank, the trial court found it established that the applicant had knowingly participated in the offence of aggravated embezzlement and had thus taken part in this criminal organisation. It stressed in this regard that it was through the use, under his apparent knowledge, of the relevant software programme that a great part of his personal taxes had also been paid. It further noted that the applicant had admitted to working under the instructions of his brother, K.U., and that he had resigned from his duties at Merkez Yat\u0131r\u0131m together with the other board members following orders by K.U. in that regard. The trial court moreover emphasised the absolute secrecy in which this fraudulent scheme had been conducted, which was evidenced, inter alia, by the phone-tapping records obtained in the past few years in the context of a separate (but related) criminal investigation. In the trial court\u2019s opinion, all the evidence in the case file pointed to the finding that the legal entity of the bank had been used as a cover for the criminal enterprise.","24.In his appeal against the judgment of the 8th Assize Court, the applicant mainly argued that he had had no duties or responsibilities regarding the IT-related activities of Merkez Yat\u0131r\u0131m, including the development of the software that had been the subject of the charges against him; that he had been convicted on the sole basis of his family ties to K.U. and his board membership of Merkez Yat\u0131r\u0131m, without any concrete evidence implicating him in the offences that he had been charged with; that the elements of the offences of forming a criminal organisation and embezzlement had not been constituted on the facts; and that he had been convicted on the basis of unlawfully obtained evidence. He argued in that connection that the trial court had referred to certain phone-tapping records in its judgment as evidence of the secrecy of the alleged criminal organisation in question, without, however, providing those records for the case file.","25.He also argued, quite extensively, that his trial and conviction by the Istanbul 8th Assize Court \u2013 which had not been in existence at the time of the commission of the offences in question, or even on the date on which the criminal proceedings at issue had been brought \u2013 had been in breach of the \u201cnatural judge\u201d principle provided under the Constitution, which required the trial of an individual only by a tribunal previously established by law. While he acknowledged the legitimate role served by specialised courts in a judicial system, he claimed that the Istanbul 8th Assize Court was not a \u201cspecialised court\u201d but an \u201cextraordinary\u201d one, since it had been established after the commission of the alleged offences in question and for the sole purpose of adjudicating the specific offences with which he had been charged. He further argued that temporary provision 2 of Law no.5020 offered the judges of this extraordinary court some additional rights, guarantees and privileges \u2013 such as a prohibition on their assignment to another location or post for a period of three years and a requirement for the expeditious processing of the cases \u2013 that were much beyond those granted to ordinary judges (see paragraph 12 above and 31 below).","26.The applicant also stressed that the court in question had been established by the HCJP following a proposal of the Minister, who had been a member of the ruling party that had been a political rival of theUzan family (see paragraph 5 above), and that the HCJP was presided over by the Minister. He further argued that certain officials from the ruling party had made critical public statements regarding the \u0130marbank proceedings.","27.The applicant lastly argued that the establishment of the Istanbul 8th Assize Court had also been against Law no. 5020 itself, as that Law had designated the 1st assize courts in every province for hearing banking offences specified under that Law. The establishment of a new court to hear those offences had in fact required \u201cnecessity\u201d \u2013 effectively meaning that neither the first chamber, nor any of the other existing chambers had been able to try those cases \u2013, whereas there had been no such specific and objective necessity in the present case. The applicant claimed in that connection that the transfer of his case from the 5th to the 1st Assize Court, as originally envisaged in accordance with Law no. 5020, would not have contravened the principle of \u201cnatural judge\u201d, for, unlike the Istanbul 8thAssize Court, that court had already been in operation at the material time.","28.On 26 January 2007 the Court of Cassation held a hearing. It upheld the judgment of the Istanbul 8th Assize Court in respect of the applicant. In particular, the Court of Cassation held expressly that the complaints regarding the unconstitutionality of the establishment of the trial court should be dismissed as not being of a \u201cserious\u201d nature. It also stressed that the absence of the phone-tapping records mentioned by the applicant from the case file had not affected the outcome of the proceedings, bearing particularly in mind that those records had not been accorded decisive evidentiary value in the trial court\u2019s judgment."],"192":["2.The applicant was born in 1992 and lives in St Petersburg. She was represented by Ms K. Mikhaylova, a lawyer practising in the same city.","3.The Government were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.On 27 September 2013 a group of LGBTI rights activists informed the StPetersburg authorities of their intention to hold a meeting to mark Coming Out Day (an annualLGBTIawareness day) from 2 p.m. until 3.30p.m. on 12 October 2013 at the Field of Mars (\u041ca\u0440\u0441\u043e\u0432\u043e \u043fo\u043b\u0435), a large square in the city centre. About 150 people were expected to attend the event. The organisers mentioned that some participants would arrive at 1.30p.m. to prepare for the meeting.","6.On 30 September 2013 the authorities forwarded the information about the upcoming event to the police (\u0413\u0423 \u041c\u0412\u0414 \u0420\u043e\u0441\u0441\u0438\u0439\u0441\u043a\u043e\u0439 \u0424\u0435\u0434\u0435\u0440\u0430\u0446\u0438\u0438 \u043f\u043e \u0433. \u0421\u0430\u043d\u043a\u0442-\u041f\u0435\u0442\u0435\u0440\u0431\u0443\u0440\u0433\u0443 \u0438 \u041b\u0435\u043d\u0438\u043d\u0433\u0440\u0430\u0434\u0441\u043a\u043e\u0439 \u043e\u0431\u043b\u0430\u0441\u0442\u0438) and reminded the organisers of the meeting that they would be held liable under domestic law for inciting hatred and enmity on account of ethnicity, language, origin and religious beliefs or for promoting \u201cnon-traditional\u201d sexual relationships to minors.","7.The police deployed around 540 police officers, including officers from special-purpose units, to ensure public order during the meeting. It appears that the enhanced security was ordered in the light of anticipated clashes with counter-demonstrators. There is no information about any other prior arrangements made by the authorities.","8.At 11.30 a.m. on 12 October 2013 the police officers arrived at the Field of Mars in St Petersburg. It does not appear that any crowd barriers were installed at the site or that the police erected any kind of perimeter fence for the demonstrators.","9.At about 1 p.m. the applicant arrived at the site to take part in the preparation of the meeting. According to her, the participants (about twenty or thirty people) were unable to gather, because the place was blocked by more than 100 aggressive counter-demonstrators. Many of them were in national costumes and armed with whips (\u043d\u0430\u0433\u0430\u0439\u043a\u0430). They insulted the participants in the meeting, and pushed and punched them. The counter\u2011demonstrators surrounded the Coming Out Day participants, including the applicant, and followed them. The participants asked for help from the police officers, but the latter did not react. They stepped in only later, when counter-demonstrators insulted the police officers personally. The police officers arrested several counter-demonstrators, took them to a police bus parked nearby and then released them. The released counter\u2011demonstrators continued their verbal attacks and physical pressure on the LGBTI activists present at the Field of Mars.","10.At 1.55 p.m. police officers surrounded a group of twelve demonstrators, including the applicant, Mr D.G., Mr. D.M., Ms. N.I., Ms.E.M., Ms S.L. and Ms Y.T., and stated that they had breached public order by using foul language in a public place. Then the officers ordered them to proceed to a police bus and took them to central police station no.28 in St Petersburg (28 \u043e\u0442\u0434\u0435\u043b \u043f\u043e\u043b\u0438\u0446\u0438\u0438 \u0423\u041c\u0412\u0414 \u0420\u043e\u0441\u0441\u0438\u0438 \u043f\u043e \u0446\u0435\u043d\u0442\u0440\u0430\u043b\u044c\u043d\u043e\u043c\u0443 \u0440\u0430\u0439\u043e\u043d\u0443 \u0433. \u0421\u0430\u043d\u043a\u0442-\u041f\u0435\u0442\u0435\u0440\u0431\u0443\u0440\u0433\u0443). The police officers referred to the transfer procedure set out in Article 27.2 of the Code of Administrative Offences (\u201cthe CAO\u201d).","11.The Government submitted that in total, ninety-three people had been arrested during the public event on account of their disorderly conduct. They were taken to three police stations and then released. The applicant argued that the police officers had taken only participants in Coming Out Day to various police stations.","12.The applicant was detained at the police station under Article 27.3 of the CAO from 2.30 p.m. to around 6.30 p.m.","13.According to her, at around 6 p.m. police officers started drawing up administrative-arrest, administrative-escort and administrative-offence records. The first document stated that she had been detained at 1.55 p.m. on 12 October 2013 on account of her disorderly conduct, an offence proscribed by Article20.1 of the CAO. She was then taken to the police station to ensure the \u201cprompt and proper examination of her case\u201d. The second document specified that the grounds of her arrest were that the applicant had used foul language during the public meeting and had ignored warnings given by police officers to refrain from doing so. The applicant signed the two records, noting her disagreement with them.","14.The applicant\u2019s case was transmitted to the Dzerzhinskiy District Court of StPetersburg, which terminated the administrative proceedings against her on 8November 2013 for lack of evidence of her guilt.","15.The police brought similar charges of disorderly misconduct (Use of foul language) against Mr D.G., Mr D.M., Ms N.I., Ms E.M., MsS.L. and Ms Y.T. The Dzerzhinskiy District Court of StPetersburg terminated the proceedings against Mr D.G., Mr D.M., Ms E.M., Ms S.L. and Ms Y.T. on various dates in November and December 2013 for lack of evidence of their guilt.","16.On 9 January 2014 the same court found Ms N.I. guilty as charged. Following an appeal by her, on 6 March 2014 that decision was quashed by the St Petersburg City Court, which found that the police had failed to substantiate the charges in question and terminated the proceedings.","17.On 12 February 2014 the applicant lodged a civil claim with the Vasileostrovskoiy District Court of St Petersburg against the StPetersburg and Leningrad Region Main Department of the Russian Ministry of the Interior (\u0413\u043b\u0430\u0432\u043d\u043e\u0435 \u0443\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u0435 \u041c\u0412\u0414 \u0420\u043e\u0441\u0441\u0438\u0438 \u043f\u043e \u0433. \u0421\u0430\u043d\u043a\u0442\u2013\u041f\u0435\u0442\u0435\u0440\u0431\u0443\u0440\u0433\u0443 \u0438 \u041b\u0435\u043d\u0438\u043d\u0433\u0440\u0430\u0434\u0441\u043a\u043e\u0439 \u043e\u0431\u043b\u0430\u0441\u0442\u0438), the Central District of StPetersburg Department of the Russian Ministry of the Interior (\u0423\u041c\u0412\u0414 \u0420\u043e\u0441\u0441\u0438\u0438 \u043f\u043e \u0426\u0435\u043d\u0442\u0440\u0430\u043b\u044c\u043d\u043e\u043c\u0443 \u0440\u0430\u0439\u043e\u043d\u0443 \u0433. \u0421\u0430\u043d\u043a\u0442\u2013\u041f\u0435\u0442\u0435\u0440\u0431\u0443\u0440\u0433\u0430), the chief of central police station no.28 in St Petersburg, and two police officers involved in her transfer to the police station and her detention there. She challenged the lawfulness of her arrest and detention at the police station. Later, on an unspecified date, she extended her claim, alleging that the authorities had failed to ensure the personal safety of the participants in the public meeting of 12 October 2013.","18.On 17 February 2014 the Vasileostrovskoiy District Court rejected her claim on procedural grounds, without examining it on the merits. Following an appeal by the applicant, that decision was quashed by the StPetersburg City Court on 14 July 2014.","19.On 23 October 2014 the Vasileostrovskoiy District Court examined the merits of the applicant\u2019s claim and dismissed it. The court noted that the applicant had failed to comply with the three-month statutory time-limit for appealing against the police\u2019s actions. The court furthermore stated that her claim was in any event ill-founded. Relying on a video recording of the event of 12October 2013, the court established that the police had interfered with the public gathering because of the conflict between the demonstrators and counter-demonstrators. The court found that the applicant had been one of the active participants in that conflict. It therefore concluded that her arrest had been lawful. The court was not convinced by witness evidence stating that the applicant herself had not breached public order because the witnesses belonged to the same group of demonstrators as the applicant. The court furthermore concluded that her arrest had been lawful, as its duration had not exceeded forty-eight hours (the maximum length of administrative detention provided by Article 27.5 of the CAO). Lastly, the court found that the applicant\u2019s allegation regarding the authorities\u2019 failure to ensure the personal safety of the demonstrators had been unsubstantiated by evidence. It noted that about 550 police officers had been deployed by the authorities and that no harm had been caused to the applicant.","20.On 31 December 2014 the applicant appealed against the above decision to the St Petersburg City Court. She complained that her arrest had not pursued a legitimate aim and had been arbitrary. She also alleged that the authorities had failed to comply with their positive obligations under the Convention. Instead of ensuring the participants\u2019 freedom of expression, the police officers had arrested them. At the same time, no counter\u2011demonstrators had been detained. According to the applicant, that selective approach had been discriminatory.","21.On 11 March 2015 the St Petersburg City Court upheld the first\u2011instance judgment on appeal. It concluded that the applicant\u2019s arrest had been lawful. It was considered as an interim measure taken to facilitate subsequent administrative proceedings for the use of foul language, because at the time of the event, given the tension between the participants of the assembly and counter-demonstrators, the police officers had been unable to identify the people who had used offensive language and to immediately draft the administrative-offence records. Therefore they had had to take the arrested people to the police station. The fact that the administrative proceedings against the applicant had subsequently been terminated had not invalidated the lawfulness of her arrest. Lastly, the court noted that the applicant\u2019s claim had been lodged belatedly.","22.On 2 September 2015, the applicant lodged a cassation appeal challenging the judgment of 23October 2014 and the appeal decision of 11March 2015; the StPetersburg City Court dismissed her appeal on 25September 2015, upholding the findings of the lower-instance courts.","23.Later, on an unspecified date, the applicant lodged a cassation appeal with the Supreme Court of Russia. It declined to entertain the appeal on 20February 2016. It appears that the applicant did not receive a written version of that decision. Subsequently, she requested the court to provide her with a copy. By a letter of 23 May 2019, the Supreme Court of Russia informed her that the case file had been destroyed owing to the expiration of the statutory period for its storage."],"193":["1. The applicant, Mr Bakur Kighuradze, is a Georgian national who was born in 1955 and lives in Tbilisi. He was represented before the Court by Mr I. Baratashvili, a lawyer practising in Tbilisi.","2. The Georgian Government (\u201cthe Government\u201d) were represented by their Agent, Mr B. Dzamashvili of the Ministry of Justice.","The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","Initial set of criminal proceedings against the applicant","4. On 13 July 2010 the applicant was arrested on suspicion of espionage. It appears from the material available to the Court that the criminal case file was classified on the grounds that it contained information on State secrets.","5. By a judgment of 7 March 2011, the Tbilisi City Court found the applicant guilty as charged after a trial held in camera. According to the parties \u2019 submissions to the Court, the trial court had granted the prosecutor \u2019 s request to hold the proceedings in camera on the grounds that the case file contained information concerning national security. The applicant was sentenced to nine years \u2019 imprisonment. He appealed on an unspecified date.","6. On 1 July 2011 the Tbilisi Court of Appeal held a hearing in camera and upheld the applicant \u2019 s conviction of 7 May 2011 in full.","7. In parallel to the criminal proceedings the applicant appears to have lodged separate unsuccessful applications before the domestic courts, most recently on 19 September 2011 before the Supreme Court, requesting them to open separate administrative proceedings to declassify the criminal case file.","8. On 18 October 2011 the Supreme Court declared the applicant \u2019 s subsequent appeal on points of law inadmissible.","9. The material in the case file available to the Court does not contain copies of the relevant decisions, judgments, or minutes of the proceedings before the domestic courts.","Proceedings before the Court","(a) Preparation of the application","10. On 21 November 2011 two lawyers applied to the Tbilisi City Court on behalf of the applicant for permission to have access to his case file and to photocopy material therein with a view to lodging an application with the Court.","11. On 25 November 2011 a registrar of the Tbilisi City Court in charge of secret proceedings replied to the applicant \u2019 s lawyers, noting that they were allowed unlimited access to the case file. As for making copies of the material therein, the applicant \u2019 s lawyers were instructed to first make a request to the Ministry of the Interior to obtain special security clearance for working on such files, as per the procedure established under sections 20 and 23 of the State Secrets Act (see paragraph 28 below).","12. On 30 November 2011 the applicant \u2019 s lawyers applied again to the Tbilisi City Court and asked whether they were at risk of incurring criminal liability if they disclosed facts and evidence from the applicant \u2019 s classified criminal case (to which access had been granted as per the registrar \u2019 s letter of 25 November 2011; see paragraph 11 above) in the proceedings before the Court. They also enquired whether the criminal case file had been classified in its entirety or only partially and, if only partially, which particular parts had been classified.","13. On 5 December 2011 the President of the Tbilisi City Court responded that, in accordance with the State Secrets Act, if part of a case file contained information on State secrets, the entire case file was classified. As to the remaining questions, they were beyond the remit of the Tbilisi City Court.","14. On 13 December 2011 the applicant \u2019 s lawyers applied once more to the Tbilisi City Court. They reminded the court of the State \u2019 s obligations under Article 34 of the Convention. In order to substantiate their application to the Court, the applicant \u2019 s lawyers requested to be allowed to make copies of those files which were not considered sensitive and, in any event, of the copies of the relevant judgments which, in their submission, should in any event have been pronounced publicly, in accordance with the relevant domestic legislation and Article 6 of the Convention. While admitting that they had not yet made use of their right to access the case file, the applicant \u2019 s lawyers further enquired which particular authority had made the decision to classify the material in the case file. They also repeated their question concerning their potential criminal liability for divulging sensitive information in their application to the Court.","15. On 14 December 2011 the Tbilisi City Court responded with the following information: (a) the applicant \u2019 s lawyers had been granted full access to the case file, and therefore no issue could arise in respect of a possible violation of Article 34 of the Convention; (b) Presidential Decree no. 42 set out a list of authorities authorised to mark information as secret; (c) Decree no. 42 also provided that classifying part of a case file as secret entailed as a consequence that the whole file was to be treated as secret; (d) while court decisions were pronounced publicly, such a requirement concerned only their operative parts rather than entire decisions and did not in and of itself render entire decisions fully public; and (e) as regards the question of possible criminal liability for disclosing facts and evidence from the case to the Court, it was not within the remit of the Tbilisi City Court to give a general interpretation of the domestic law which did not relate to an ongoing case before it, such interpretation being rather within the competence of the legislative body.","16. On 23 December 2011, enclosing the letters of 5 and 14 December 2011 (see paragraphs 13 and 15 above) with their application, the applicant \u2019 s lawyers requested Parliament to clarify whether criminal responsibility could be incurred for disclosing information from the applicant \u2019 s classified case file in the proceedings before the Court. They do not appear to have received a response.","(b) Reopening of the criminal proceedings: information received after notice of the application was given to the Government","17. On 21 February 2017, having conducted a preliminary assessment of the admissibility of the application, the Court decided to give notice to the Government of the part of the application relating to the applicant \u2019 s complaints under Article 6 \u00a7 1 that the proceedings had not been held in public and that the relevant judgments had not been pronounced publicly, and under Article 34 of the Convention concerning the alleged denial of access to the classified materials necessary for submitting the application to the Court.","18. On 31 July 2017 the Government submitted their observations. They informed the Court, inter alia, that on 13 January 2013 the applicant had been released from prison under the 2012 Amnesty Act (see paragraphs 23 \u2011 24 below) on the grounds of having been declared a \u201cpolitical prisoner\u201d by Parliament. Furthermore, in the Government \u2019 s submission, a new remedy had been created at the domestic level entitling persons with that status, or a prosecutor on their behalf, to request the reopening of the relevant criminal proceedings and, if acquitted following the new trial, to the right to claim compensation for damage. In the applicant \u2019 s case, a prosecutor had requested the reopening of the proceedings on the applicant \u2019 s behalf, and the relevant proceedings were pending. The Government stated that the applicant \u2019 s omission to inform the Court of these developments had amounted to an abuse of the right of individual application.","19. On 31 October 2017 the applicant submitted his observations in reply. Among other things, he noted that the remedy referred to by the Government had only become effective on 22 June 2016, when the Code of Criminal Procedure had been amended to allow the reopening of criminal cases of persons in situations such as his (see paragraph 25 below). It had therefore been on 28 February 2017 that a prosecutor had applied to the Tbilisi Court of Appeal on the applicant \u2019 s behalf to have his case reopened. As those proceedings were still ongoing, the applicant \u2019 s omission to inform the Court of the interim developments could not, in his submission, constitute an abuse of the right of application.","20. On 26 June 2019 the applicant provided the Court with a copy of the Tbilisi Court of Appeal \u2019 s final judgment of 16 July 2018. It appears from that document that on 1 April 2013, following the applicant \u2019 s release from prison under the 2012 Amnesty Act (see paragraph 24 below) and his application for the reopening of the criminal proceedings, the Chief Prosecutor \u2019 s Office had opened a criminal investigation into the applicant \u2019 s case. It had found that the initial criminal investigation leading to the applicant \u2019 s conviction had not been objective and complete, inter alia because various witnesses had been forced to falsely testify. The Chief Prosecutor \u2019 s Office had therefore requested the Tbilisi Court of Appeal to reopen the case and to acquit the applicant. The Tbilisi Court of Appeal had granted the prosecutor \u2019 s application to reopen the criminal proceedings. It had carried out a full retrial, questioning the applicant and various witnesses and assessing different items of evidence by means of an oral hearing in camera.","21. During the hearing before the Tbilisi Court of Appeal on 16 July 2018, the applicant reiterated his version of the events, denying any involvement in espionage. Additionally, several witnesses retracted the earlier statements they had made, upon which the initial conviction had been based, explaining that they had been given under duress, and expert evidence was obtained which re-evaluated various items of evidence gathered as a result of search-and-seizure measures carried out during the initial criminal proceedings against the applicant. As a result of the new trial, on 16 July 2018 the Tbilisi Court of Appeal quashed its final judgment of 1 July 2011 (see paragraph 6 above) and acquitted the applicant. Taking into account the newly emerged circumstances and the witnesses \u2019 retracted statements, the court found that the applicant \u2019 s initial conviction had been wrongful. The Court of Appeal further explicitly referred, in the operative part of the judgment, to the applicant \u2019 s right to claim compensation for any damage suffered, under Article 92 of the Code of Criminal Procedure (see paragraph 26 below).","22. Neither the applicant nor the prosecutor challenged the Tbilisi Court of Appeal \u2019 s acquittal judgment of 16 July 2018 within the relevant time \u2011 limit of one month. It therefore became final and binding.","Relevant domestic law","23. On 5 December 2012 Parliament adopted Decree ( \u10d3\u10d0\u10d3\u10d2\u10d4\u10dc\u10d8\u10da\u10d4\u10d1\u10d0 ) no. 76 on persons arrested or persecuted on political grounds. The Decree provided that individuals falling under its scope and listed in the appendix were to be absolved of criminal responsibility, and their sentences were to be annulled. It was noted that the relevant implementing legislation would be adopted in due course.","24. On 28 December 2012 Parliament adopted the Amnesty Act, section 22 of which provided that a person deemed by Parliament to have been arrested or persecuted on political grounds was to be absolved of criminal responsibility and to have his or her sentence annulled. Section 24 provided that \u201cthe relevant application for political amnesty provided for in section 22\u201d was to be submitted by the Chief Prosecutor \u2019 s Office and the Ministry of Prisons.","25. On 22 June 2016 Article 332 1 of the 2009 Code of Criminal Procedure was amended as follows:","\u201c...","2. In addition to the grounds listed in Article 310 of the present Code [review of judgments based on newly emerged circumstances], a final judgment may also be reviewed in respect of a person deemed to be a political prisoner or a politically persecuted person on the basis of Decree no. 76 of 5 December 2012 of the Parliament of Georgia, if the relevant judgment was delivered before the adoption of the Decree in question and the application [for reopening] is submitted to a court before 1 July 2017.\u201d","26. Article 92 of the Code of Criminal Procedure provides that any person who has suffered damage as a result of an unlawful procedural measure or decision has the right to claim damages through civil or administrative proceedings. Article 1008 of the 1997 Civil Code provides for a three-year time-limit for lodging such a claim.","27. Section 16(1) of the 1996 State Secrets Act, as in force at the material time, provided for the right to request the declassification of information. The request was to be lodged with the authority which had classified the relevant information. A reasoned written answer was to be delivered in respect of such requests within a month of its lodging. Section 16(2) provided that a decision to designate information as secret could be appealed against before a court.","28. Sections 20 and 21(3) of the State Secrets Act provided that the Ministry of the Interior was the authority with the power to grant security clearance for working with classified information. Section 20(2) of the Act provided that the relevant procedure was set out in the Procedure for Designating and Protecting State Secrets. This document was adopted by the 1997 Presidential Decree no. 42, which implemented the State Secrets Act. Among other things, in Chapter III it provided for a procedure for obtaining security clearance and indicated that any refusal to grant clearance to work with State secrets was to be given in writing and duly reasoned. Any such refusal could be appealed against in the courts.","29. Section 26 of the State Secrets Act regulated access to information classified under that Act. Under section 26(1), access to classified information containing State secrets could be granted to a citizen of legal age who needed such access for professional or research purposes. Under section 26(6), an individual who had been granted access was to protect the secrecy of the information, and would bear responsibility for divulging the relevant information."],"194":["The applicant, Ms Alzira Akramovna Shcherbakova, is a Russian national, who was born in 1963 and lives in Kazan. She was represented before the Court by Mr Igor Sholokhov, a lawyer practising in Kazan.","The Russian Government (\u201cthe Government\u201d) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.","The facts of the case, as submitted by the parties, may be summarised as follows.","Events of 4 June 2017","At around 3 a.m. on 4 June 2017 the applicant \u2019 s son, Mr S.S., then aged 27, and his friend Mr A.M., both apparently drunk, walked down Pavlyukhina street in Kazan. It appears that they were involved in a conflict with Mr R.M., a local resident, who apparently tried to stop them from throwing stones at parked cars. All three of them were arrested by police officers for having committed the minor administrative offence of disorderly conduct. Later, at around 11 a.m. on the same day, the police drew up respective records in this connection.","After the arrest of the applicant \u2019 s son, Mr A.M. and Mr R.M. were put in a police van and transported to the police department of the Gorki district of Kazan. During the journey, Mr S.S. fell out of the van onto the street. As a result of the fall, he sustained serious injuries to his head, shoulders and upper body and died on the spot.","Subsequent proceedings","On the same day an investigator of the Investigative Committee in the Sovetskiy District Department of Kazan drew up a report regarding the incident, suggesting that a crime of negligence may have been committed. The scene of the events was examined and described in the relevant report, whilst the police van was seized and kept in a safe place pending the proceedings.","After a check, on 13 June 2017 a criminal investigation was carried out in respect of the events. That decision was later quashed by the Regional Prosecutor \u2019 s office. It appears that the bulk of the ensuing investigation took place within the framework of a pre-investigation inquiry.","During the subsequent proceedings the investigator identified and questioned witnesses of the events, including the three policemen present on that night, Mr A.M and Mr R.M., as well as people residing on Pavlyukhina street. The investigator also ordered a forensic examination of the corpse of the applicant \u2019 s son with a view to identifying the causes of his death and an expert report regarding the lock on the police van \u2019 s back door and the reasons for the opening of the door.","On 13 September 2017 investigator Kh. took the decision not to bring criminal proceedings into the events, having concluded that the applicant \u2019 s son \u2019 s fall had resulted from his own unlawful behavior, as he had tried to escape from the police van by pushing open the locked door and jumping. The decision established that after the applicant \u2019 s son and Mr A.M. were placed in the van \u2019 s compartment for detainees, the door was locked by officer F. in the presence of the other two officers. It also established that in the moments preceding the incident the van was moving at a speed of about 30 to 40 km per hour and that the witnesses, including Mr R.M., who was in a separate compartment, heard the applicant \u2019 s son and Mr A.M. shouting swear words and beating on the walls of the van. Then one of the police officers realised that the back door of the van had opened and stopped the car. On the basis on the forensic report, the investigation concluded that the applicant \u2019 s son \u2019 s death resulted from his fall onto the street, during which he seriously injured his neck, head and chest area and those injuries caused his death shortly thereafter. It also established that Mr S. S. had a low to medium level of alcohol intoxication. The decision also examined the condition of the lock on the back door of the van and the back door itself. With reference to the expert report which indicated that the metal covering on the inside of the compartment had been bent and the lock had been broken by forcing the door from the inside, the investigation concluded that the unfortunate event had resulted from Mr S. S. \u2019 s own reckless behavior and accordingly refused to prosecute the police officers.","The applicant appealed against this decision in court. She argued, in particular, that the investigation was incomplete and insisted that her son had fallen out of the van incidentally as a result of the negligence of the police.","On 20 March 2018, after two rounds of court proceedings at two levels of jurisdiction, the Privolzhskiy District Court of Kazan upheld the decision of 13 September 2017. This judgment was upheld on appeal by the Supreme Court of Tatarstan on 24 April 2018."],"195":["2.The applicant was born in 1975 and lives in H. Before the Court she was represented by Ms R. Arnesen, a lawyer practising in Bergen.","3.The Government were represented by their Agent, Mr M.Emberland of the Attorney General\u2019s Office (Civil Matters) as their Agent, assisted by Ms L.-M. J\u00fcnge, advocate at the same office.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant became pregnant while on holiday abroad in 2010.On 7December 2010 the child welfare services received a notification of concern from the midwife who was attending the applicant. According to the notification the applicant had had a son from a previous relationship, born in 2000, and after giving birth to him she had suffered from postnatal depression, which had been treated at a hospital. The midwife moreover informed the authorities that the son lived with his father, and that the applicant had been subject to voluntary as well compulsory mental health care on a number of occasions.","6.The child welfare services contacted the applicant prior to the birth of her daughter, but she did not want their assistance. Accordingly, other public authorities were asked to notify the child welfare services in the event that they had any concerns. The hospital in which the applicant was to give birth was asked to inform the child welfare services as soon as the child had been born.","7.On 15 March 2011 the applicant\u2019s general practitioner informed the child welfare services that the applicant had been diagnosed with emotionally unstable personality disorder (F60.3) and mild mental retardation (F70).In addition, on 8 April 2011, the municipal mental health services submitted information to the effect that the applicant lived in a home provided by those services, but that she refused assistance and aid from the staff. Reference was also made to medical assessments that had been made in connection with the applicant\u2019s first pregnancy. It concluded that there was a high risk that the applicant would use violence in conflicts and that it was unrealistic that she should have the daily care of children.","8.The applicant gave birth to her daughter on 5 April 2011. She was informed by the child welfare services that her daughter would be subject to an emergency placement decision unless the applicant consented to a stay at a child and family centre (\u201cthe centre\u201d), where her caring skills would be assessed and where it would be ensured that the daughter received appropriate care. The applicant and her daughter moved into the centre on 8April 2011.","9.In a conversation between the staff at the centre and the child welfare services on 11 April 2011, the staff expressed concerns regarding the fact that they found it difficult to cooperate with the applicant, whom they perceived as paranoid. She was helpless and had major problems in taking care of the child\u2019s practical needs in respect of matters such as hygiene, care and safety. No interplay between the applicant and the child had been observed, either. In another conversation between the same parties on 13April 2011, the staff furthermore stated that they were unable to give guidance to the applicant, as she did not understand why she was at the centre. She was perceived as unpredictable and, according to the staff, she did not shield the child from her anger and aggression. She had little focus on her daughter, and had not bonded and did not interact with her. The centre\u2019s staff proposed to discontinue the stay and advised that an emergency placement decision be adopted.","10.On the basis of the above, the child welfare services considered that assistance measures, although extensive, had been unsuccessful. It was not appropriate for the applicant\u2019s stay at the centre to be continued or for her to be allowed to return home with the child. On 14 April 2011 an emergency placement decision was adopted, pursuant to section 4-6 of the Child Welfare Act (see paragraph 51 below), to the effect that the child was to be placed in public care.On the following day, the chair of the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker) approved that decision.","11.On 28 April 2011 the applicant lodged an appeal against the emergency placement decision. She argued that she had only been allowed a few days in the centre and that she had been in a vulnerable situation owing to her having only just given birth. The case had been wrongly presented and she requested that her caring skills be reassessed. As to her earlier rounds of treatment, she emphasised the fact that she had not been subject to treatment since 2006, and that her last treatment had been administered within the context of stress caused by her having undergone an abortion. She had recently moved in with her mother, who had asked to be approved as a foster parent; moreover, the applicant\u2019s brother and sister could assist and support her and her mother.","12.On 2 May 2011 the Board, by its chair, held a meeting in order to hear the case. A representative from the child welfare services attended, as did the applicant and her mother and both gave testimony. It appears that the applicant on this occasion stated that she had not been subject to mental health treatment since 2008.","13.On 3 May 2011 the Board, in the person of its chairperson, decided to maintain the emergency decision. It took account of the applicant\u2019s history of hospitalisation. In addition to the above-mentioned medical assessments the Board mentioned, inter alia, an evaluation made following treatment given in 2002, according to which the applicant easily lost control and had expressed aggression. She had asked her then boyfriend to kill a previous boyfriend of hers, and had at one occasion rammed a knife into a pillow next to that former boyfriend while he was sleeping. In 2006 the applicant had first been treated at a hospital after she had undergone an abortion. According to the summary of the medical assessments made at that time, she had destroyed items in the house and physically attacked her mother. At the hospital she had attributed her anger against her family to the fact that they had pressured her to abort her pregnancy. Later that same year, the applicant had again been hospitalised after having become aggressive towards her mother. On that occasion the applicant had stated that she would surely hit her mother again and that she had problems controlling her anger. According to medical observations recorded in 2007, the applicant had not been responsive to therapy and had not understood the necessity of taking medication in the manner prescribed. In 2008 she had been hospitalised after an episode in which, in the presence of her son, she had climbed out of a window and threatened to jump. Moreover, there had been incidents in which she had threatened to use a knife both on herself and on others.","14.The Board also reviewed a report prepared by staff at the centre. The report noted that the applicant did not secure her daughter, but instead left her alone, on the nappy-changing table. Moreover, the applicant had experienced certain problems in cleaning, dressing and undressing the child. The report also contained observations regarding the applicant\u2019s emotional care of the daughter and concluded by remarking that the applicant had appeared unstable in her mental functioning throughout the entire period of her stay at the centre.","15.In the light of the way the applicant\u2019s health had been described in medical assessments since 2001 and how she had functioned during her six day stay at the centre, the Board found that there had been a risk that the daughter could have suffered severe injury if she had moved home with the applicant. The nursing and emotional care of the girl would have been deficient, and the emotional development of the girl would have stagnated. This would have been very damaging to the girl, who was of an age at which continuous stimulation and \u201cmirroring\u201d (that is to say actions intended to assure the child having been heard and understood) was entirely decisive for her further development. The conditions for an emergency decision had thus been met on 14 April 2011, when the emergency decision had been adopted. The Board, moreover, considered that the conditions were also met as at the date of its own decision. As to the applicant\u2019s moving in with her mother, it stated that there was still a risk of substantial damage being caused to the child because of the fact that major conflict regularly arose between the applicant and her family, from the effects of which the applicant would probably not be able to protect her daughter. In addition, the applicant\u2019s mother had clearly expressed her opinion that her daughter would be capable of caring for the child without assistance, which indicated that deficiencies in the applicant\u2019s care for her daughter would be overlooked and not reported to the child welfare services. The emergency decision was therefore upheld.","16.The child welfare services had granted the applicant contact rights entitling her to have contact with her daughter once every third week. The Board noted that this constituted a \u201crestrictive decision\u201d, as the case concerned an infant temporarily placed outside the home. It found nonetheless that it should be upheld, noting in that regard (i) strange remarks made by the applicant to the effect that the child must have been switched and (ii) the fact that the applicant had criticised the interim foster parents for feeding her daughter so much that she had been unable to recognise her. The Board stated, however, that there was a possibility of the applicant being awarded more extensive contact rights if the applicant were to visit a doctor and start taking appropriate medicines to stabilise her mental functioning. On essentially the same grounds, the Board held that she should not be informed of the whereabouts of her daughter, in accordance with section 4-19 of the Child Welfare Act (see paragraph51 below).","17.On 26 May 2011 the child welfare services lodged an application with the County Social Welfare Board for a care order to be issued in respect of the applicant\u2019s daughter, in accordance with section 4-12 of the Child Welfare Act (see paragraph 51 below). They also engaged a psychologist to assess the applicant\u2019s caring skills.","18.The psychologist delivered her written report on 16 August 2011; the report concluded that the applicant\u2019s mental functioning rendered her incapable of taking care of children.","19.The Board, which was composed of one jurist qualified to work as a professional judge, one psychologist and one lay person, heard the case on1and 2 September 2011. The parties and eight witnesses were heard.","20.In a decision dated 7 September 2011 the Board issued a care order in respect of the applicant\u2019s daughter and decided that the daughter would be placed in a foster home.","21.It can be seen from the wording of the decision that the applicant had resumed taking her prescribed medication in May 2011, and had also resumed psychological therapy. After the emergency placement there had been seven contact sessions arranged between the applicant and her daughter. During the sessions, the applicant\u2019s mother, a representative from the child welfare services and one external supervisor had been present. The interim foster mother had reported that the child had suffered reactions to the contact sessions in the form of vomiting, not making eye contact with anyone, \u201cmaking new sounds\u201d and feeling stiff. It had also been reported that she had experienced uneasiness, poor control over food intake, crying and a strong need for comfort and closeness.","22.The Board unanimously found that the applicant was capable of providing sufficient practical care. A majority of its members found, however, that the applicant was incapable of offering sufficient emotional care. The majority of the Board members noted that although the applicant had restarted medication that appeared to have a calming effect on her, it would not improve her fundamental deficiencies \u2013 namely, a lack of sensitivity towards the child and difficulties in seeing the child\u2019s needs rather than her own. The majority also considered that further assistance measures would not remedy those deficiencies. It noted in that respect that the applicant\u2019s lack of skills in providing appropriate care were rooted in the way that the applicant\u2019s personality functioned, which was not something that could be improved. Referring to their conclusion that the applicant\u2019s difficulties in providing emotional care were anchored in her personality traits, the majority of the Board members also noted their belief that the care order would be long-term. A minority of the Board (the lay member) considered that the applicant\u2019s situation had improved and that she would be capable of taking care of her daughter, with assistance.","23.The majority Board members found that the applicant should be granted contact rights amounting to two hours, four times yearly. They referred in that regard to their above-mentioned conclusion that the care order would be long-term, which meant that the applicant\u2019s daughter would grow up in her foster home. The minority lay member considered that the contact rights should be considerably more extensive. The Board unanimously saw no reasons why the applicant should not be informed of the address of the foster home.","24.The applicant appealed against the Board\u2019s decision to the District Court (tingrett).","25.The District Court sitting as a bench composed of one professional judge, one psychologist and one lay person, held a hearing at which the parties and eight witnesses gave evidence. In its judgment of 31January 2012, it stated that it essentially agreed with the Board\u2019s analysis of the situation, and added that developments subsequent to the Board\u2019s decision also supported the argument that that should be upheld. According to the evidence, the applicant had many positive caring skills and had, during contact sessions, demonstrated the ability to maintain intuitive, good interaction with the child. The problem was that that only lasted for a short while, before her behaviour changed into that was clearly incompatible with caring for children. It was likely that the placement would be long-term. Against that background, it delivered a decision that upheld that of the Board, except that it found that the applicant\u2019s contact rights during 2012 should be limited to one hour for each visit.","26.On 11 April 2012, following an application lodged by the applicant\u2019s lawyer, the High Court (lagmannsrett) refused the applicant leave to appeal against the District Court\u2019s judgment.","27.On 11 May 2012 the Supreme Court\u2019s Appeals Leave Committee (H\u00f8yesteretts ankeutvalg) dismissed an appeal lodged by the applicant against the High Court\u2019s decision.","28.On 4 October 2012 the applicant lodged a request with the Board for the care order to be lifted and her daughter returned to her. She submitted that new information had emerged regarding life situation and the state of her health.","29.In January 2013 the child welfare services engaged a psychologist to examine the applicant\u2019s caring skills and lodged an application with the Board for a decision on the question of whether the care order should be lifted. The psychologist delivered her written report on 14March 2013 and the Board, which was again composed of a jurist qualified to be a professional judge, a psychologist and a lay person, held a hearing on 4and5 April 2013. The parties and eight witnesses were heard.","30.On 12 April 2013 the Board dismissed the applicant\u2019s application for the lifting of the care order. Although the applicant had continued with her medication and psychological therapy \u2013 and the psychologist treating her had stated that she had matured and now functioned considerably better than two years previously \u2013 the opinion of the psychologist (appointed in January 2013) had largely been in line with that of the psychologist who had been appointed during the first set of proceedings (see paragraphs 17-18 above). The Board agreed with the psychologist\u2019s opinion. The extent of the applicant\u2019s contact rights in respect of her daughter remained unaltered. The Board held in that respect that the applicant\u2019s daughter was to grow up in the foster home, either as a foster child or an adopted child, and stated that the contact rights had to reflect that state of affairs.","31.The applicant brought an action in the District Court, sitting as a bench composed of a different professional judge, psychologist and lay person. It heard the case on 16 and 17 June 2014.","32.The District Court delivered a judgment on 1 July 2014 in which it arrived at the same conclusions as had the Board, furthermore stating that it essentially agreed with the Board\u2019s reasoning. It additionally noted, among other things, that the applicant\u2019s primary argument was that the placement in public care of her daughter had been due to the fact that she herself had previously been wrongly diagnosed with mild mental retardation, whereas it had later been clarified that she had been suffering from attention deficit hyperactivity disorder (ADHD) and thus, at the time of the District Court\u2019s judgment, finally had been receiving appropriate medication and therefore would function better than before, also when it came to providing care for her daughter. The District Court found that those circumstances had not, however, supported the conclusion that the applicant at the time had possessed normal care skills. It also pointed out that the applicant had not taken care of her daughter for three years, had had a small social network and had not properly arranged for her daughter to attend kindergarten or planned leisure activities for her. Similarly, she had similarly few or no plans in respect of her own education or work, and had been unemployed since 2000. She had recently started to have more contact with her son, but that had been at the son\u2019s initiative. In the District Court\u2019s view, that could not be viewed as an indication that the applicant had sufficient care skills. As regards the question of contact rights, the District Court stated that the placement in care of the applicant\u2019s daughter would be long-term and that the purpose of contact was not, therefore, to make a reunification of the family possible by building an attachment between the applicant and her daughter.","33.On 5 May 2015 the child welfare services lodged an application with the County Social Welfare Board for (i) an order that the applicant be deprived of her parental responsibilities in respect of her daughter, which would then be transferred to the authorities, and (ii) authorisation for the subsequent adoption of the daughter by her foster parents, in accordance with section 4-21 of the Child Welfare Act (see paragraph 51 below).","34.The Board, again composed of one jurist qualified to work as a professional judge, one psychologist and one lay person, held a hearing on 4and 5 June 2015. The applicant attended with her legal-aid lawyer and gave evidence. Nine witnesses were heard.","35.On 15 June 2015 the Board delivered a decision; it noted that the applicant\u2019s daughter had been living at her foster home since she had been nine days old. She was four years when the Board had assessed the case. All her close attachment were to the foster home, and the foster parents acted in every way as her parents and primary caregivers. She had no close attachment to the applicant.","36.Additionally, the applicant\u2019s daughter was, in the Board\u2019s view, a very vulnerable child, having been diagnosed, inter alia, with an unspecified childhood emotional disorder (F93.9). In a summary report on an examination of the applicant\u2019s daughter at the Children\u2019s and Young People\u2019s Psychiatric Out-Patient Clinic (barne- og ungdomspsykiatrisk poliklinikk), dated 5 November 2011, it was noted that she was vulnerable to stress and that she had \u201cangst\/freeze\u201d reactions in stressful situations \u2013particularly after visits from the applicant.","37.Lastly, the Board referred to testimony from a psychologist who had carried out an expert assessment in 2013; the psychologist had stated that it was likely that the applicant\u2019s daughter would risk a \u201cdeviating development\u201d if removed from the foster home, instead of the positive development that had at that time been experiencing.","38.In conclusion, the Board found it proven that removing the applicant\u2019s daughter from the foster home would be liable to lead to serious problems for her. Although it was not necessary for the purpose of deciding the case, the Board noted that less than one year had passed since the District Court had found that the applicant was incapable of providing appropriate care for her daughter, and that new circumstances that might have led to a different evaluation of that question differently had not arisen.","39.Moreover, the Board found it to be in the best interests of the applicant\u2019s daughter that the foster parents adopt her. The daughter was of an age at which she had still no conception of her being a foster child. An adoption at that time would make her a full-fledged member of that family without her ever having to formulate such a conception. It furthermore noted that during the four years since the first placement order had been made, there had been two sets of proceedings concerning the care of the daughter \u2013 each before both the Board and the District Court. After hearing the applicant\u2019s statement during the hearing of 4-5 June 2015, the Board had been left with the impression that she did not understand the need for her daughter to remain in foster care; it noted that the applicant had stated that she was prepared to lodge further requests for her daughter to be returned to her. In the Board\u2019s view, further proceedings would not be in the daughter\u2019s best interests.","40.The Board concluded that the applicant was to be deprived of her parental responsibilities in respect of her daughter, and that the adoption of her daughter was to be authorised.","41.The applicant lodged an appeal against the Board\u2019s decision with the District Court, which appointed a psychologist to examine the case. She delivered her written report on 30 November 2015.","42.The District Court, sitting as a bench again composed of one professional judge, one psychologist and one lay person, held a hearing on 14and 15 December 2015. The applicant attended with her legal-aid lawyer; seven witnesses, in addition to the applicant herself and the court\u2011appointed expert (see paragraph 41 above), were heard.","43.In its judgment of 22 December 2015, the District Court stated at the outset that it essentially agreed with the grounds provided by the Board. It found that the applicant would be unable to provide her daughter with the appropriate care. It took account of the applicant\u2019s weak cognitive functioning (which had been indicated by the court-appointed expert). The court noted that the applicant had previously been diagnosed with mild intellectual disabilities, but that it had been found that there was no longer any reason to uphold that diagnosis. Instead she had been diagnosed with ADHD, for which she was receiving medication. The District Court did not deem those changes in diagnoses to be decisive. Instead, it referred to the examination by the expert that it had appointed; according to that examination, the applicant had problems with accepting and taking account of information that did not accord with her views. The applicant\u2019s testimony and appearance during the hearing had borne out the assessments made by the expert.","44.Moreover, the District Court found that the applicant\u2019s daughter had become so attached to the foster home that removing her now could lead to serious problems for her. She had lived in the foster home for four and half years (ever since she had been nine days old), and the foster parents were her \u201cpsychological parents\u201d. She was, moreover, a sensitive and vulnerable child and displayed strong reactions to visits from the applicant. The court-appointed expert had concluded that returning the girl to the applicant would trigger a risk of her development being seriously arrested \u2013 both in the light of the applicant\u2019s weak caring skills and because of the risk of moving such a vulnerable child from her current \u201ccare base\u201d, to which she was strongly attached.","45.On the topic of whether adoption would be in the best interests of the applicant\u2019s daughter, the District Court stated that it had to be determined whether it would be better for the applicant\u2019s daughter to be adopted than to grow up as a foster child. The District Court was of the view that the daughter had a strong need for her care situation to be clarified. She understood the foster parents to be her parents and she was well integrated into their family, enjoying a good and close relationship with both her foster brothers and her extended foster family. As to the applicant, she did not seem to accept that she would never be able to assume the care of her daughter. There were therefore reasons to believe that there would be future proceedings seeking the reunification of the applicant with her daughter or extended contact rights, unless adoption was at that time authorised. While the biological principle should be given considerable weight, the attachment between the applicant and her daughter was nevertheless very limited. As the foster parents had not consented to post-adoption contact visits (under an \u201copen adoption\u201d arrangement), that issue could not be decided. The District Court assumed, however, that the foster parents would facilitate contact between the applicant and her daughter, should the daughter at a later point in time so wish.","46.On the basis of an overall assessment, the District Court concluded that the adoption should be authorised. It accordingly decided to deprive the applicant of her parental responsibilities in respect of her daughter and to authorise the adoption of the child by her foster parents.","47.On 8 March 2016 the High Court refused the applicant leave to appeal against the District Court\u2019s judgment.","48.On 4 May 2016 the Supreme Court\u2019s Appeals Leave Committee dismissed the applicant\u2019s appeal against the High Court\u2019s decision."],"196":["3.The first applicant was born in 1966. He lives in Frederiksberg. The second applicant was born in 1987. He lives in Greve. The applicants were represented by Mr Christian Dahlager, a lawyer practising in Copenhagen.","4.The Government were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their Co-Agent, Mrs Nina Holst-Christensen, from the Ministry of Justice.","5.The facts of the case, as submitted by the parties, may be summarised as follows.","6.The first applicant was declared legally incompetent to manage his financial and personal affairs by the Copenhagen City Court (K\u00f8benhavns Byret) on 20 March 1984, as the conditions for declaring him legally incompetent under sections 2(1)(i) and 46 of the then applicable Act on Legal Competence (myndighedsloven) and part 43 of the Administration of Justice Act (retsplejeloven) were found to have been met.","7.In 1996, the Act on Legal Competence was replaced by the Guardianship Act (v\u00e6rgem\u00e5lsloven), which distinguished between (i) persons who under the Act\u2019s section 5 were subject to guardianship but remained legally competent, and (ii) persons who were both subject to guardianship under section 5 and had been deprived of their legal capacity under section 6. Only those who had been deprived of their legal capacity under section 6 were to be considered legally incompetent.","8.The second applicant was placed under financial guardianship and deprived of his legal capacity by order of the District Court of Roskilde (Retten i Roskilde) on 23 March 2009. The District Court gave the following reasoning:","\u201cOn the basis of the [submitted] medical certificate, it is considered a fact that [the second applicant] is unable to manage his financial affairs because of mental disability, for which reason he requires financial guardianship and requires to be deprived of his legal capacity in order to prevent him from incurring more debt.","Accordingly, the conditions for financial guardianship set out in section 5(1) of the Guardianship Act and the conditions for deprivation of legal capacity set out in section 6(1) of the Guardianship Act have been met. For that reason, an order for financial guardianship and deprivation of legal capacity is granted.\u201d","9.Under section 29 of the Constitution, and section 1 of the Danish Act on Parliamentary Elections, persons who were legally incompetent did not have the right to vote in general elections.","10.Consequently, the applicants were not entitled to vote, inter alia, in the parliamentary elections that took place on 18 June 2015.","11.By a statutory amendment (Act no. 391 of 27 April 2016), persons who were legally incompetent were given the right to vote in European Parliament elections and in local and regional elections, but not in national parliamentary elections.","12.The applicants, joined by two other persons, instituted proceedings before the Danish courts, claiming that they had wrongfully been denied the right to vote in the parliamentary elections on 18 June 2015. They relied, inter alia, on Article 3 of Protocol No. 1 to the Convention, both taken alone and in conjunction with Article 14 of the Convention.","13.The Danish Ministry of Social Affairs and the Interior (Social- og Indenrigsministeriet), against whom the above-mentioned proceedings were brought, contested the claims.","14.Before the High Court of Eastern Denmark (\u00d8stre Landsret), a written statement submitted by the first applicant was read out. According to that statement, as read out by the first applicant\u2019s mother:","\u201cHe suffered brain damage after being immunised during his first year [of life]. He currently lives at the Egmont folk high school [H\u00f8jskolen] in Hou. He is able to write with [the help of a third party supporting his] hand and wrote the statement because, unfortunately, he was not able to travel from Jutland to attend the trial hearing. For many years, he has had to share a single vote in general elections with his mother, who is his guardian. They have not always had the same perception of the political landscape. It is humiliating for him not to have the right to cast his own vote, and he would therefore be very pleased if judgment were to be delivered in his favour. According to his papers, he was deemed to be unteachable. However, neuropsychologists and occupational therapists have now been persuaded [that he has some] intellect. He asks for justice.\u201d","15.Before the High Court, the second applicant stated:","\u201cHe lives in Greve in his own flat, which is part of a group home. A mentor comes every Wednesday to help him clean, do grocery shopping and read his mail. He is thirty-five years old [sic]. He works on the Glad Foundation reception desk every day from 8a.m. until usually 2 p.m. or 3 p.m. There are always two employees at work on the reception desk, and on Fridays there are three. He felt sad and disappointed about not being allowed to vote in the general elections in June 2015, when everybody else was allowed to. He feels like an outcast from society. He reads the Metroexpress newspaper and is interested in politics. He watches the TV2 news before going to work, and he watches the \u201cTV-Avisen\u201d news on the DR1 channel in the evening. He was deprived of his legal capacity because it is difficult for him to manage his financial affairs. He requested a guardian himself. He asked his mentor to organise the [relevant] paperwork that had to be submitted to the State Administration (Statsforvaltningen). Later the case was heard in court.\u201d","16.In its judgment of 29 June 2017, the High Court dismissed the claim. The High Court gave the following reasoning:","\u201c...The provisions of the Constitution [regarding the right to vote] (previously section 35 and section 30, and now section 29) have continuously been construed by the legislature to mean that persons deprived of their legal capacity under section 2 and section 34 of the former Act on Legal Competence and, since the effective date of the Guardianship Act, under section 6 of the Guardianship Act, do not have the right to vote in general elections. This understanding also seems to be supported to a predominant extent in printed legal literature on the subject.","The High Court concurs with this understanding of section 29 of the Constitution and finds, without taking into account the significance of Denmark\u2019s international obligations, that there is no basis for a different interpretation of the provision.","...","Accordingly, and since the High Court finds that the provisions of the international conventions acceded to by Denmark and relied upon by the plaintiffs and the intervener do not imply that the very limited number of persons deprived in full of their legal capacity by a court order under section 6 of the Guardianship Act, but who otherwise meet the conditions for suffrage in general elections, also have an absolute and unconditional right to vote in general elections, and since such legal status is not recognised in the judgments of the Court relied upon by the parties and the intervener, the High Court finds for the Ministry of [Social] Affairs and the Interior.\u201d","17.The applicants appealed against the judgment to the Supreme Court, which by a judgment of 18 January 2018, upheld the decision of the High Court. The Supreme Court gave the following reasoning:","\u201cThe right to vote (claims 1 and 2)","Under section 29 of the Constitution, persons declared \u2018legally incompetent\u2019 do not have the right to vote in general elections. For the reasons given by the High Court, the Supreme Court concurs with the view that persons deprived of their legal capacity under section 6 of the Guardianship Act must be considered legally incompetent within the meaning of the Constitution, for which reason they do not have the right to vote in general elections. Section 1 of the Parliamentary Elections Act is worded accordingly.","Notwithstanding Denmark\u2019s international obligations, the Supreme Court cannot allow the appellants\u2019 arguments that section 1 of the Parliamentary Elections Act is inapplicable and that they had the right to vote in the 2015 general election. The Supreme Court therefore concurs with the judgment delivered by the High Court in favour of the Ministry of [Social] Affairs and the Interior as regards claims 1 and 2.","Entitlement to compensation (claim 3)","The question is now whether the appellants\u2019 rights under, in particular, the European Convention for the Protection of Human Rights and Fundamental Freedoms were violated and, if so, whether the appellants are entitled to compensation.","Under Article 3 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Contracting States undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.","According to the case-law of the European Court of Human Rights, this provision guarantees individuals the right to vote and to stand for election, but this right is not absolute, and the Contracting States must be allowed a margin of appreciation in that sphere \u2013 see in this respect, inter alia, paragraph 115 of the judgment delivered on 16March 2006 in \u017ddanoka v. Latvia (application no. 58278\/00) and paragraphs 57 and 62 of the judgment delivered on 6 October 2005 in Hirst v. the United Kingdom (no.2). It furthermore appears from those judgments that restrictions on the right to vote should not automatically adhere to the same criteria as those applied with regard to interference with other Convention rights; that interference must be necessary in a democratic society. However, restrictions on the right to vote must not be arbitrary or disproportionate, or thwart the free expression of the people in the choice of the legislature. When determining whether a restriction on the right to vote is compatible with the Convention, the European Court of Human Rights takes into account whether the restriction pursues a legitimate aim and whether it is proportionate to that aim.","In the judgment of 20 May 2010 in Alajos Kiss v. Hungary, which concerned a provision of the Hungarian Constitution providing that persons placed under total or partial guardianship did not have the right to vote, the European Court of Human Rights was satisfied that the restriction pursued a legitimate aim. That aim was to ensure that only citizens capable of assessing the consequences of their decisions and of making conscious and judicious decisions should participate in public affairs. The European Court of Human Rights found, however, that the Hungarian measure was disproportionate, for which reason it constituted a violation of Article 3 of Protocol No. 1. In making that assessment, the European Court of Human Rights took into account the fact that the Hungarian Constitution did not distinguish between persons under total and persons under partial guardianship, and that there was no evidence that the competing interests had been weighed in order to assess the proportionality of the restriction. It furthermore appears from the judgment that 0.75% of the Hungarian population of voting age had been disenfranchised on account of being under guardianship, that the European Court of Human Rights considered that that was a significant figure, and that it could not be claimed that the restriction on the right to vote was negligible in its effects. The European Court of Human Rights found that the absolute disenfranchisement of all persons under partial guardianship without due consideration being given to [the degree of] their mental disability did not fall within an acceptable margin of appreciation, referring, inter alia, to the fact that the margin of appreciation allowed the Contracting States is substantially narrower if disenfranchisement applies to a particularly vulnerable group in society and that weighty reasons are required for such disenfranchisement. When the applicant lost his right to vote as a consequence of the automatic disfranchisement imposed, without access to any remedy, on persons under partial guardianship, he suffered a violation, for which reason the European Court of Human Rights did not speculate as to whether the applicant would still have been deprived of the right to vote even if a more limited restriction on the rights of the mentally disabled had been imposed, in line with the requirements of Article 3 of Protocol No. 1. The European Court of Human Rights also said that the treatment of those with intellectual or mental disabilities as a single class constituted a questionable classification and that the curtailment of their rights must be subject to strict scrutiny. The indiscriminate removal of voting rights without an individualised judicial evaluation and solely on the basis of a mental disability necessitating partial guardianship could therefore not be considered to constitute legitimate grounds for restricting the right to vote.","The Alajos Kiss judgment is the only judgment on disenfranchisement imposed as a consequence of guardianship, except for the judgments delivered by panels of three judges on 23 September 2014 in Gajcsi v. Hungary and on 21 October 2014 in Harmati v. Hungary, in which cases the Hungarian government did not dispute the alleged violation of the Convention.","The Supreme Court finds that the purpose of disenfranchising legally incompetent persons under section 29 of the Constitution falls within the framework of a measure deemed to pursue a legitimate aim, as set out by the European Court of Human Rights in Alajos Kiss. The question is now whether the requirement of proportionality has been met.","The first condition that must be met in order to deprive a person of his or her legal capacity under section 6 of the Guardianship Act is that the person must be unable to manage his or her own affairs owing to mental unsoundness or mental disability, etc. (see section 5), and the second condition is that a legal incapacitation order be necessary to prevent the person in question from exposing his or her assets, income or other financial interests to the risk of major loss, or to prevent financial exploitation. Persons subject to guardianship solely under section 5 are legally competent, whereas persons also deprived of their legal capacity under section 6 are legally incompetent. It follows from section 8(1) that a person cannot be deprived of his or her legal capacity if his or her interests can be sufficiently guarded through guardianship under section 5. As opposed to persons who are only subject to guardianship under section5, persons deprived of their legal capacity under section 6 need more than a guardian to guard their interests; they are often persons who act contrary to their own best interests or risk being exploited by others.","Under section 10, a legal incapacitation order must be quashed if the prescribed conditions are no longer met. The legal incapacitation order in respect of [one of the two additional persons who joined the proceedings] has been quashed, in accordance with that provision, and he is now solely subject to guardianship under section 5 and consequently now has the right to vote in general elections.","Accordingly, strict requirements must be met in order to deprive a person of his or her legal capacity and to maintain in effect such a legal incapacitation order, and such requirements are closely related to the issue of whether the person in question is able to foresee the consequences of his or her decisions and to make conscious and judicious decisions.","The Guardianship Act, which was enacted in 1996, reduced the group of persons declared legally incompetent and consequently disenfranchised in general elections as compared with the group similarly disenfranchised under the former Danish Act on Legal Competence (myndighedsloven). In 1990, just under 3,300 persons had been declared legally incompetent, and in December 2017 about 1,850 persons had been deprived of their legal capacity.","Danish Act no. 391 of 27 April 2016 gave persons deprived of their legal capacity the right to vote in European Parliament elections and in local and regional elections. It appears from the preparatory notes to the Act that it was intended to bestow upon this group of individuals the right to vote to the extent possible under the Constitution.","The restriction on the right to vote set out in section 29 of the Constitution therefore reflects an arrangement [ordning] that is considerably narrower than the Hungarian measure deemed by the European Court of Human Rights in respect of Alajos Kiss to be disproportionate.","The Supreme Court finds that it follows from that judgment that an arrangement imposing a more limited restriction on the right to vote of persons suffering from a mental disability as compared with the then applicable Hungarian measure might be compatible with Article 3 of Protocol No. 1. It cannot be inferred from the judgment that in order for a restriction on the right to vote of persons deprived of their legal capacity to be considered compatible with Article 3 of Protocol No. 1, a specific and individual assessment must always have been made of the relevant person\u2019s mental capacity to exercise the right to vote. The Supreme Court observes in this respect, as did the High Court, that a specific and individual assessment of whether a person\u2019s mental capacity is sufficient [for that person] to exercise the right to vote may give rise to concern. The case-law of the European Court of Human Rights concerning restrictions on the right to vote and on eligibility to stand for election for reasons other than mental disability also supports the view that a specific and individual assessment is not always required to deprive a person of his or her right to vote \u2013 see in this respect paragraphs 112 and 114 of the judgment delivered in \u017ddanoka v. Latvia and paragraphs 98, 99 and 102 of the judgment delivered on 22 May 2012 in Scoppola v.Italy (no. 3).","The Supreme Court also observes that it follows from the legislation on elections and the constitutions of a number of other European countries that persons deprived of their legal capacity do not have the right to vote [it appears from the transcript that the Supreme Court referred to a report by the European Union Agency for Fundamental Rights of 21 May 2014 \u201cThe right to political participation for persons with disabilities: human rights indicators\u201d, see paragraph 71 below].","Against this background, the Supreme Court finds no basis for ruling that the arrangement set out in section 29 of the Constitution is contrary to Article 3 of Protocol No. 1 or to Article 14 read in conjunction with Article 3 of Protocol No. 1. The Supreme Court also finds, as was also found by the High Court, that there is no basis for ruling that section 29 of the Constitution is contrary to the Convention on the Rights of Persons with Disabilities.","For this reason alone, the appellants are not entitled to compensation.\u201d","18.The Supreme Court judgment attracted renewed focus among politicians on the situation of persons who were both subject to guardianship and had been deprived of their legal capacity, and who did not have the right to vote in general elections. Consequently, several parties that were not government parties at that time introduced private members\u2019 bill no. B71, which sought that fewer persons subject to guardianship should be excluded owing to their disability from the right to vote in general elections. At the first reading of the bill in Parliament, the then Minister of Justice expressed the view that the bill served a commendable purpose, and he promised to examine the possibility of excluding fewer persons subject to guardianship from the right to vote in general elections. After the reading of the bill, a report was published saying that the Parliamentary Committee on Social Affairs, the Interior and Children (Social-, Indenrigs- og B\u00f8rneudvalget) looked forward to discussing with the Government the outcome of the analytical work launched by the Government.","19.In the light of this report, the Ministry of Justice carried out an analysis of the rules within this field. On 3 October 2018, the Ministry of Justice concluded, on the basis of that analysis, that section 29 of the Constitution did not constitute a bar to an amendment to or repeal of the guardianship rules aimed at allowing some of those persons who had been deprived of their legal capacity to again be allowed to manage their own assets in full or in part. The opinion of the Ministry of Justice was that a person subject to guardianship who was barred only in part from managing his or her assets was not \u201clegally incompetent\u201d within the meaning of the Constitution and could therefore retain the right to vote in general elections.","20.Against that background, the then Minister of Justice introduced a bill to amend the Guardianship Act and the Parliamentary Elections Act; that amendment was passed by Parliament on 20 December 2018 and entered into force on 1 January 2019. The following appears from the explanatory notes to the bill:","\u201cThe first purpose of the bill is to introduce the possibility of depriving a person [only] partially of his or her legal capacity, one of the consequences being that such a person will retain the right to vote in general elections.","Therefore, it is the opinion of the Government that, according to the principles of democracy, the group of persons with suffrage in elections to a body elected by the people ought to be as wide as possible. The Government wishes to bestow the right to vote in nationwide elections in Denmark upon as many citizens as possible \u2013 [including] persons subject to guardianship \u2013 within the framework of the Constitution.","...","It appears from paragraph 2.4 of the report that as long as a group of persons are deprived of the right to manage their assets, it is a consequence of section 29 of the Constitution that those persons are barred from voting in general elections.","It therefore requires an amendment to the Constitution if the deprivation of a person\u2019s legal capacity is not to lead to disenfranchisement.","However, section 29 of the Constitution is not a bar to an amendment to or repeal of the guardianship rules to the effect that some of the persons deprived of their legal capacity today would again be allowed to manage their own assets in full or in part.","However, in the opinion of the Ministry of Justice, such an arrangement must not have as a consequence [the scenario] that persons in need of the protection afforded by the deprivation of their legal capacity would be left in a situation in which they risked being exposed to financial exploitation or ... a potential risk of losing their assets.","It is observed that the group of around 1,900 persons who have been deprived of their legal capacity is a particularly vulnerable population group.","It is the opinion of the Ministry of Justice that it would constitute a major impairment of the protection of those persons if the possibility of depriving them of their legal capacity were to be abolished entirely. In such a case, those persons would no longer be prevented from entering into legal transactions and incurring financial commitments, even though they are not able to understand the consequences, thereby exposing their assets to risk. The relevant persons might also risk financial exploitation.","Therefore, the Ministry of Justice cannot recommend the full abolition of the possibility of depriving them of their legal capacity. ...\u201d","21.Accordingly, it was the assessment of the Ministry of Justice that the proposed possibility of the partial deprivation of legal capacity was most compatible with the aim of allowing as many citizens as possible the right to vote while protecting a small group of citizens in need of such protection by depriving them of their legal capacity.","22.In the light of the above, the statutory amendment introduced the possibility of the partial deprivation of legal capacity. Thereby it became possible to limit an order restricting a person\u2019s legal incapacity to comprise only particular assets or affairs, such as credit purchase transactions or taking out loans, or to specifying a maximum amount of agreements into which such a person could enter. Persons deprived only partially of their legal capacity remain legally competent and thus retain the right to vote in general elections. Only persons fully deprived of their legal capacity do not have the right to vote in general elections.","23.The first applicant lodged an application with a district court for a change to his guardianship status following the statutory amendment. On 20May 2019, the order regarding his legal incapacitation was quashed in its entirety, and he was consequently granted the right to vote in general elections.","24.The second applicant also lodged an application for a change to his guardianship status. He is still subject to guardianship, but by a district court order of 9November 2019, he was only partially deprived of his legal capacity pursuant to section 6(2)(2) of the Guardianship Act. Consequently, he was granted the right to vote in general elections."],"197":["2.The applicant was born in 1991. At the time of the introduction of the application he was detained in Baarn. The applicant was represented by MrJ.C. Reisinger, a lawyer practising in Utrecht.","3.The Government were represented by their Agents, initially MrR.B\u00f6cker and subsequently Ms B. Koopman, both of the Netherlands Ministry of Foreign Affairs.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.In July 2014 the television programme Undercover in Nederland (\u201cUndercover in the Netherlands\u201d), presented by the journalist A. S., conducted an investigation into abuse in prostitution, focusing on sex advertisements featuring young women. Suspecting that someone was helping a 15-year-old girl to sell sexual services over the Internet, the relevant footage was passed on to the police.","6.The ensuing criminal investigation resulted in a number of persons, the applicant among them, being suspected of human trafficking (mensenhandel; see paragraph 26 below), and in particular the exploitation of an underage prostitute. The applicant was arrested and placed in police custody (inverzekeringstelling) on 2 December 2014 and on 5 December 2014 he was taken into initial detention on remand (bewaring) for fourteen days by order of an investigating judge (rechter-commissaris) of the Central Netherlands Regional Court (rechtbank Midden-Nederland). The order included the following grounds:","\u201cIt appears that there is a serious public-safety reason requiring the immediate deprivation of liberty, namely:","there is a suspicion of a [criminal] act which, under the law, carries a maximum sentence of imprisonment of twelve years or more and that act has caused serious upset to the legal order [een feit waarop naar de wettelijke omschrijving een gevangenisstraf van 12 jaren of meer is gesteld en waardoor de rechtsorde ernstig is geschokt];","there is a serious likelihood [er moet ernstig rekening mee worden gehouden] that the suspect will commit a crime [misdrijf] which, according to the law, carries a maximum sentence of imprisonment of six years or more;","there is a serious likelihood that the suspect will commit a crime [misdrijf] by which the health or safety of individuals will be endangered;","detention on remand is in all reasonability necessary in order to discover the truth [is in redelijkheid noodzakelijk voor het aan de dag brengen van de waarheid] by means other than through the suspect\u2019s statements. Witnesses\/co-suspects need to be heard without the suspect having the possibility to influence the content of their statements. ...\u201d","7.On 18 December 2014 a hearing in camera (raadkamer) took place before the Central Netherlands Regional Court sitting in Utrecht on the applicant\u2019s placement in extended detention on remand (gevangenhouding). During this hearing, the applicant argued through counsel that the extended detention on remand sought be refused or, in the alternative, that his detention on remand be suspended (schorsing). He asserted, relying on Geisterfer v. the Netherlands (no.15911\/08, 9December 2014), that the mere seriousness of the criminal act of which he was suspected was, as such and in the abstract, insufficient to justify a continuation of his deprivation of liberty whereas there were no specific concerns that his release would cause upset to the legal order. He further argued that there were no indications of a risk of reoffending, taking into account that his only previous conviction was of the theft of a bicycle and that he had been acquitted in a different case. Lastly, the applicant contended that his detention on remand was no longer justified for the purpose of the investigation, since the most important witnesses had already been heard and had given their statements.","8.On the same day the Regional Court sitting in camera ordered that the applicant be taken into extended detention on remand for ninety days, starting from 19December 2014. The Regional Court\u2019s decision included the following:","\u201cThe serious suspicions [ernstige bezwaren]","The Regional Court finds that there remains a serious suspicion in respect of the [criminal] act described in the order for the initial detention on remand [bevel bewaring].","The grounds","The Regional Court is of the view that the ground(s) for pre-trial detention [voorlopige hechtenis] stated in the order for the initial detention on remand still exist(s). This does not apply to the grounds relating to the investigation [onderzoeksgrond].","The defence has argued that also the grounds relating to [an offence carrying a] twelve-year [sentence] [12-jaarsgrond] are not applicable. The Regional Court is, however, of the opinion that those grounds are applicable in the instant case, noting the very young age of the victim and the great media attention given to this case.\u201d","The Regional Court subsequently dismissed the alternative application to suspend the applicant\u2019s detention on remand, holding that the applicant\u2019s personal interests did not outweigh the general interest of society in his detention on remand being continued.","9.The applicant appealed to the Arnhem-Leeuwarden Court of Appeal (gerechtshof). According to the official record (proces-verbaal) of the hearing held on 14 January 2015, counsel for the applicant argued that the extended detention on remand lacked sufficient justifiable grounds in that the risk of recidivism did not arise in the applicant\u2019s case and furthermore that upset to the legal order had not been shown. Counsel concluded that grounds for pre\u2011trial detention were thus lacking and that therefore the impugned decision could not be upheld.","10.The prosecution argued that the applicant did not challenge the suspicions which concerned a serious crime, namely human trafficking. As to the upset of the legal order, the prosecutor noted that the case had attracted wide media coverage. The prosecutor lastly argued that the applicant\u2019s application to suspend his pre-trial detention should be dismissed.","11.On the same day the Court of Appeal confirmed the Regional Court\u2019s decision. The decision reads in its relevant part as follows:","\u201cCONSIDERATIONS","After examination, the Court of Appeal finds that the grounds on which the Regional Court has ordered the suspect\u2019s extended detention on remand still exist, so that the decision of the Regional Court, in so far as appealed against, must be upheld in the light of those grounds. ...","DECISION","The Court of Appeal upholds the decision in so far as appealed against. ...\u201d","12.No further appeal lay against this decision.","13.The trial proceedings against the applicant started on 17March 2015 before the Central Netherlands Regional Court sitting in Utrecht. They were conducted simultaneously with the trial proceedings brought against two co\u2011accused. At the public hearing held on that day, applicant\u2019s counsel applied for, inter alia, either the lifting of the applicant\u2019s pre-trial detention (opheffing) or its suspension (schorsing). In addition to his earlier arguments (see paragraphs7 and 9 above), counsel submitted that just because the exploitation imputed to the applicant had been lucrative, this did not mean that the applicant would reoffend. In the context of his application to suspend the applicant\u2019s pre-trial detention, counsel further submitted medical reasons (the applicant was receiving treatment for anxiety disorders), as well as the applicant\u2019s wish to take up study and to stand by his mother during her divorce. The applicant was further prepared to respect possible conditions attached to a suspension of his pre-trial detention.","14.The prosecutor opposed the applications, submitting that the risk of recidivism could be assumed because of the nature of the evidence against the applicant, the duration of the victim\u2019s exposure to cash-paying clients for the benefit of the applicant, the fact that the actions for which the applicant was accused had only stopped after intervention by the police. It was also clear from the applicant\u2019s attitude in the proceedings that apparently he failed to appreciate what he had done. The prosecutor maintained that upset would be caused to the legal order, given that it concerned human trafficking of a minor victim which had been reported by A. S. (see paragraph5 above) and which had triggered a wide reaction. The victim was a vulnerable 15-year-old girl and the co-accused had previously been prosecuted for offences relevant to the case in hand. The prosecutor further requested to add that to the investigation grounds (onderzoeksgrond, Article 67a \u00a7 1 under 5o of the Code of Criminal Procedure (Wetboek van Strafvordering, hereinafter \u201cthe CCP\u201d); see paragraph25 below), as the victim could be heard again as a witness. The prosecutor lastly emphasised that the applicant\u2019s alleged medical condition had remained unsubstantiated and that there was no declaration that the applicant was unfit for detention.","15.After having deliberated, on 17 March 2015 the Regional Court dismissed the applicant\u2019s applications to lift or suspend his pre-trial detention. It held as follows:","\u201cThe application to lift and the application to suspend, the pre-trial-detention order are dismissed. The suspicions, objections and grounds which have led to the issuance of the pre-trial-detention order are still pertinent. The investigation grounds will not be added to anew as the risk of collusion has not been sufficiently substantiated.","The situation of Article 67a \u00a7 3 of the CCP [that is to say the duration of pre-trial detention exceeding the possible custodial sentence] has not, noting the habitual sentences for the facts as charged, (yet) arisen. The Regional Court also considers there are no reasons for suspending the pre-trial-detention order. The suspect\u2019s interest does not outweigh the public interest in his continued pre-trial detention.\u201d","16.The Regional Court further adjourned the trial proceedings until 9June 2015 and instructed the investigating judge to take evidence from the victim.","17.On 22 April 2015, following the applicant\u2019s appeal against the decision of 17 March 2015 in respect of his pre-trial detention, the Court of Appeal upheld that decision. In its relevant part, this decision reads:","\u201cCONSIDERATIONS","After examination, the Court of Appeal finds that the grounds on which the suspect\u2019s pre-trial detention are based still exist, on the understanding that the recidivism grounds no longer apply, so that the decision of the Regional Court is to be upheld on those grounds. ...","DECISION","The Court of Appeal confirms the decision appealed against, on the understanding that the recidivism grounds no longer apply. ...\u201d","18.At the public trial hearing of 9 June 2015, counsel for the applicant again requested that the applicant\u2019s pre-trial detention be either lifted or suspended. He argued that there was no question of upset being caused to the legal order or \u2013 after six months during which he had been in pre-trial detention \u2013 still being caused. He pointed out that, although he might have committed a crime in the eyes of the law, the girl had gone into prostitution of her own volition, and the applicant, believing that she was of age, had only aided her out of friendship. He also argued that public interest did not outweigh his personal interest in being released. He had made good use of his time in pre\u2011trial detention by following a personal development course. He would respect all conditions attached to a release from pre-trial detention and submitted that his continued detention would not benefit the victim or society.","19.The prosecutor opposed the applicant\u2019s application, arguing, inter alia, that the grounds relating to the upset caused to the legal order remained pertinent. Although time had passed since the offence, in particular a minor in prostitution, caused enormous upset in society and, if it concerned a minor of the age of the victim in the case at hand, the maximum custodial sentence was fifteen years and the public considered this a very serious offence. The prosecutor further saw no pressing personal circumstances on the basis of which the applicant\u2019s pre-trial detention should be suspended.","20.On the same day, after having deliberated, the Regional Court dismissed the applicant\u2019s application to lift or suspend his pre-trial detention, holding as follows:","\u201cThe application to lift or suspend the pre-trial-detention order is dismissed. The suspicion, objections and grounds which have led to the issuance of the pre-trial-detention order are also now still pertinent.","The situation of Article 67a \u00a7 3 of the CCP has not, noting the habitual sentences for the facts as charged, (yet) arisen.","The Regional Court considers there are no reasons for suspending the pre-trial-detention order. The suspect\u2019s interest does not outweigh the public interest in continuing the [applicant\u2019s] pre-trial detention, also noting the upset caused to the legal order.\u201d","21.In a judgment of 15 September 2015 the Regional Court convicted the applicant of human-trafficking for having brought a 15-year-old girl into prostitution for a period of about three weeks and profiting therefrom, and sentenced him to eighteen months\u2019 imprisonment less the time spent in pre\u2011trial detention and six months of which were suspended pending a probation period of two years. This conviction obtained the force of res iudicata on 29September 2015.","22.The story of the applicant\u2019s victim featured in two episodes of Undercover in Nederland and was later told on the website of PowNed (a multimedia broadcaster aimed at the \u201cnetwork generation\u201d), on Dichtbij.nl (a local-news Internet portal), and in the IJmuider Courant (a regional newspaper). In March 2015 De Gooi- en Eemlander (a regional newspaper) reported on the extension of the applicant\u2019s pre-trial detention and, in September 2015, NU.nl (an online newspaper), RTV Utrecht and RTV NH (regional television channels) reported on the applicant\u2019s conviction."],"198":["2.The applicants were born in 1994 and 1992 respectively and live in Middlesex and London. The applicant in application no. 77587\/12 (hereinafter, \u201cthe first applicant\u201d), who had been granted legal aid, was represented by Ms Philippa Southwell of Birds Solicitors, a law firm based in London. The applicant in application no. 74603\/12 (hereinafter, \u201cthe second applicant\u201d) was represented by the AIRE Centre, a legal charity based in London, and by Professor P. Chandran, a Barrister based in London at 1 Pump Court Chambers.","3.The Government were represented by their Agent, Mr J. Gaughan of the Foreign and Commonwealth Office.","4.The facts of the cases, as submitted by the parties, may be summarised as follows.","5.On 6 May 2009 the first applicant was discovered by police at an address in Cambridge during the execution of a drug warrant. The address was a four\u2011bedroomed house which had been converted into a sophisticated cannabis factory containing 420 cannabis plants with a street value in excess of GBP130,000. The first applicant was found alone in the property, in possession of a mobile telephone, with credit, and GBP 100 in cash.","6.Following his discovery, the first applicant was interviewed in the company of a legal representative and appropriate adult. He claimed that he was fifteen years old (a fact which the Government now accept to be correct), that he had been smuggled into the United Kingdom by his adoptive father, that upon arrival he had encountered two Vietnamese nationals who took him to the address in Cambridge, and that while he realised cannabis was being grown there, he hadn\u2019t known that it was illegal. He was charged with being concerned in the production of a controlled drug.","7.Social services assessed the first applicant\u2019s age and concluded that he would turn eighteen in January 2010. A district judge in the Magistrate\u2019s Court subsequently found as a matter of fact that he was at least seventeen years old.","8.At a preliminary hearing before the Crown Court on 21 May 2009, the case was adjourned for a plea and case management hearing. A few days later Refugee and Migrant Justice, a legal advice and representation charity, informed the first applicant\u2019s then representative of concerns that he may have been the victim of human trafficking, and that the point had been \u201cflagged up\u201d by social services. They further indicated that social services might raise discontinuance with the Crown Prosecution Service (hereinafter, \u201cthe CPS\u201d) but if not the matter ought to be taken up at court.","9.On 13 August 2009 the first applicant had a conference with counsel. There was no record of any exploration of the trafficking issue. The first applicant initially gave \u201cnot guilty\u201d instructions and indicated that he was scared, but on receiving counsel\u2019s advice he confirmed that he intended to plead \u201cguilty\u201d.","10.On 20 August 2009, following the conference with counsel, the first applicant pleaded guilty to the production of a Class B drug.","11.On 4 September 2009, at a conference at which the first applicant was not assisted by an appropriate adult, different counsel advised him that he could apply for leave to vacate his guilty plea on the ground that he had been trafficked and subjected to forced labour. However, the first applicant instructed counsel that he was not in fear of the alleged traffickers. Nevertheless, sentencing was adjourned to await receipt of a report from social services on whether he was deemed to be the victim of trafficking.","12.On 14 October 2009 the CPS reviewed their decision to prosecute and concluded that there was no credible evidence that the first applicant had been trafficked. The following day, however, the CPS received a letter from the United Kingdom Border Agency (hereinafter, \u201cUKBA\u201d) indicating that the circumstances of the first applicant\u2019s case had been considered by one of the two Competent Authorities (see paragraph 75-76 below) which concluded that there were reasonable grounds for believing that he had been trafficked. He was therefore granted a forty-five day \u201creflection period\u201d and his case was adjourned on the basis that this was in his best interests.","13.On 27 November 2009 UKBA sent a letter to the first applicant\u2019s representative. It noted that the trafficking-related criminal investigation was still on-going but found that the first applicant\u2019s circumstances raised the following trafficking indicators: he had been found at a cannabis factory highlighting criminality involving adults; he was not enrolled in school; and he was not allowed to leave the property. It further stated that in light of his \u201ccredible account\u201d \u2013 which had remained consistent in the various meetings he had had with social services \u2013 it was considered that he had been trafficked to the United Kingdom.","14.On 8 December 2009 the case was reviewed by the CPS lawyer but the Chief Crown Prosecutor subsequently confirmed that it should be prosecuted. Although no official reasons were given for this decision, in a letter to a Member of Parliament of 10 December the then Director of Public Prosecutions explained that the prosecution had not been discontinued because the offences were extremely serious, there was no defence of duress and no clear evidence of trafficking.","15.At a hearing on 14 December 2009 the CPS argued that to be a victim of trafficking was not a defence; rather, the decision to prosecute was taken in light of information they had and had to be kept under review. To apply to vacate would be pointless as duress was not a viable defence. The judge, however, indicated that an application to vacate was well-founded and set a timetable for listing in early 2010 if the application was to be made. In the cells afterwards the first applicant indicated that he wished to change his plea.","16.On 16 December 2009 defence counsel indicated to the first applicant\u2019s solicitors that social services were \u201coutrageous\u201d in advocating a change of plea. He reiterated his view that the fact that the first applicant was not frightened and was looking after the plants in return for help in finding his family made the issue irrelevant.","17.At a hearing on 19 January 2010 the first applicant maintained his plea. It appears that this decision followed a meeting with his solicitors in which he was advised that the finding that he had been trafficked had not been definitively confirmed; that in any case the CPS were not required \u2013 and did not intend \u2013 to withdraw the prosecution; and that although the decision to prosecute could be challenged in the High Court, it was a lengthy process which had little prospect of success. In the Crown\u2019s submission, the evidence suggested that the first applicant was not a trafficked person. Counsel for the Crown went through the facts in detail, noting in particular that he was found in an ordinary house with a mobile phone, credit and money; in the trafficking assessment he had indicated that his family in Vietnam was not under threat; there were no debts owed to anyone in Vietnam; and he had not been abused prior to his arrest. They therefore found \u201cno reason whatever\u201d to revise their initial assessment that the first applicant should be prosecuted in the public interest. The first applicant was sentenced to twenty months detention in a young offenders\u2019 institution.","18.On 21 April 2009 police officers attended a residential premises in London following reports of a suspected burglary. They had been informed that a large body of men had been seen in the gardens to the rear of the premises, forcing their way in. When they got there, they discovered a very sophisticated cannabis factory. The second applicant, together with a number of other Vietnamese nationals, was found close to the premises, hiding from the marauders. They were all arrested.","19.Upon his arrest, GBP 70 was found on the second applicant. With the assistance of an interpreter, he was interviewed at a police station. As he initially gave his year of birth as 1972, he was treated as an adult (it was later accepted that his actual year of birth was 1992).","20.During the police interview he indicated that upon leaving Vietnam he had travelled to the United Kingdom via the Czech Republic. Soon after his arrival, he met some Vietnamese people, including a man (\u201cH\u201d) who gave him accommodation, clothes and food for a week. While he was staying at the house he was told that it was \u201cbest for him not to go out\u201d; however, when asked if he was held there against his will, he said no. After a week, he was taken to the cannabis factory in a vehicle which was \u201ccovered up\u201d. According to the second applicant, the windows of the factory were bricked up, the only door was locked from the outside and he believed that the factory was guarded. His work included watering the plants and cooking. He slept, ate and worked in the factory, and he was not paid for his work.","21.The second applicant claimed that in the beginning he did not know that the plants in the factory were illegal. However, he became suspicious and wished to leave as he was frightened. In or around this time H allowed him to leave the factory with some others for a few days, but when he told H, in the course of a telephone call, that he did not wish to return, H told him that he might be killed if he stopped working. He and the others were then picked up and returned to the factory.","22.Following the interviews the applicant was charged with being concerned in the production of a controlled drug of Class B, namely cannabis.","23.At a hearing before the Magistrates\u2019 Court on 30 April 2009 the second applicant gave his year of birth as 1992. The case was thereafter approached on the basis that he was seventeen years old.","24.The prosecution conducted a file review on 1 June 2009. They appear to have considered that the second applicant had been smuggled into the United Kingdom, since his parents had funded his journey to what was hoped would be a life with better prospects.","25.The second applicant was granted legal aid. There is a note in the instructions to his counsel indicating that he had been \u201ctrafficked into the UK\u201d, although the source of that entry was not traced and the applicant later accepted that he had not used that term.","26.Counsel saw the second applicant in conference on 1 July 2009, taking instructions directly from him with the assistance of a translator. He told counsel that he had fled his home in Vietnam and come to the United Kingdom illegally via the Czech Republic. Upon arrival he contacted a cousin in London. While looking for work, some Vietnamese people had introduced him to H, who provided him with accommodation, food and money. He was then taken to work in the factory, which he initially thought was producing herbal medicine. He was mainly locked in the factory and was unable to go out. After approximately ten days he discovered that the plants were cannabis and asked to leave. He was threatened that if he left he could or would be killed. Although on one occasion he went with some co-workers to the home of one of their relatives, H contacted them there and as a result of further threats they returned to the factory.","27.As the second applicant accepted that he could have run away from the house of his co-worker\u2019s relative, counsel did not believe that a plea of duress would be likely to succeed. The second applicant pleaded guilty in July 2009.","28.Following his \u201cguilty\u201d plea, a pre-sentence report was prepared by a member of the Youth Offending Team. The report indicated that the second applicant regretted his decision to accept the offer to work in the factory. He accepted that his motivation had been \u201cfinancial gain\u201d, which was neither acceptable nor justifiable. He accepted responsibility for his decision to act and displayed a level of remorse.","29.On 25 September 2009 the second applicant was sentenced to an eighteen-month detention and training order. He was given credit for his guilty plea, and account was taken of his young age, the fact that he left Vietnam to make a better life for himself and his \u201cexcellent progress\u201d in custody.","30.In April 2010 the second applicant\u2019s new solicitor referred his case to the National Society for the Prevention of Cruelty to Children National Child Trafficking Advice and Information Line (hereinafter, \u201cNSPCC NCTAIL\u201d).","31.In an interview with a social worker from NSPCC NCTAIL, the second applicant indicated that his family had paid for him to travel to the Czech Republic after he was assaulted by police and almost arrested during an anti-government protest in Hanoi. He flew alone to the Czech Republic, where he was met by a man who took his passport from him. He stayed in the man\u2019s house for around two weeks, during which time he had to stay in his room unless he was washing or cleaning. Together with two women, he was then transported to London by lorry. Upon arrival a man picked the three passengers up and drove them to the women\u2019s house. From there he called his mother to obtain the contact details of his cousin in London. He then contacted his cousin and the women he travelled with took him to meet her at a market. They told him to return to the meeting point the next day and they would arrange work for him. The second applicant stayed with his cousin for one night but as he did not know her well \u2013 and did not know her husband at all \u2013 he did not want to intrude any further. He therefore went back to the meeting point, where he met H.","32.Based on the interview, the social worker concluded that there were reasonable grounds for considering the second applicant to be a victim of child trafficking from Vietnam to the United Kingdom. In particular, she noted that: there appeared to be clear links between the people who arranged his travel out of Vietnam, those who held him in the Czech Republic and moved him to the United Kingdom, and those who exploited him for work in the cannabis factory; he was either not allowed out of or was locked in the premises where he was harboured or exploited by agents; he was not informed of the criminal nature of the work in the cannabis factory; he was locked into the cannabis factory and told he would be killed if he left; and he was forced to live in unhealthy conditions at the factory, without payment.","33.The second applicant\u2019s case was subsequently considered by one of the two Competent Authorities (see paragraph 75-76 below). On 16November 2010 UKBA notified him that the Competent Authority had concluded that he had been trafficked. While it considered that certain aspects of his claim to have been trafficked undermined his credibility \u2013 the fact that he was allowed to leave the agents\u2019 supervision and stay with his cousin for one night, the fact that he had not been consistent regarding the existence of telephones in the cannabis factory, and the fact that he was allowed out of the cannabis factory \u2013 it was accepted that on the balance of probabilities there were grounds to believe that he had been trafficked into the United Kingdom. In its view, the account of the second applicant\u2019s recruitment and movement from Vietnam to the United Kingdom satisfied the definition of trafficking under the Anti-Trafficking Convention for the purposes of labour exploitation. It also considered there to be a link between those who arranged his travel out of Vietnam, those who held him in the Czech Republic and brought him to the United Kingdom, and those who put him to work in the cannabis factory, and that he was in a position of dependency and vulnerability, which could go some way to explaining why he was allowed out of the factory and why he returned. As for the work he was doing, he was found in a place of exploitation, which was guarded and locked from the outside and the living and working conditions were consistent with those found in exploitative situations.","34.However, as he had turned eighteen and was not receiving any counselling, it was not accepted that he was a person \u201cin need\u201d. As such, he was no longer considered to be a victim of human trafficking and was not eligible for a residence permit.","35.The second applicant\u2019s solicitor also instructed a psychologist, who prepared a report in March 2011. The report was based on the account that the applicant provided to the NSPCC NCTAIL interviewer. The psychologist concluded that he was suffering psychological distress as a result of multiple traumatic experiences as a minor, including an assault by the police in Vietnam and being trafficked to the United Kingdom. His symptoms met the criteria for a diagnosis of post-traumatic stress disorder (hereinafter, \u201cPTSD\u201d) and a major depressive disorder. In the psychologist\u2019s opinion, his symptoms were consistent with his account of his history. Furthermore, the psychologist considered that the account given by the second applicant to the NSPCC interviewer was \u201cbroadly consistent\u201d with the account given to the police, and the minor inconsistencies could be explained by his PTSD. In view of his history with the police in Vietnam, he would have been scared, angry and confused following his arrest. In contrast, the NSPCC NCTAIL interview was carried out in a less distressing context, by a professional experienced in dealing with child victims of human trafficking.","36.On 28 June 2011 a Special Casework Lawyer from the CPS reviewed the second applicant\u2019s case in light of updated guidance from the CPS and the conclusions of NSPCC NCTAIL and UKBA. Having particular regard to the fact that the second applicant was a child of mature years, the inconsistencies in the accounts he had given, the fact that he had a mobile phone and could have summoned help, the fact that he was allowed to see his cousin and was not held on the factory against his will, the absence of physical injury to him or any of the other \u201cgardeners\u201d, the fact that he had a sum of money on him when he was recovered, and the possibility that he could have escaped from the cannabis factory, she remained firmly of the view that he was not a victim of trafficking and the public interest would require a prosecution. In reaching this conclusion she considered that the second applicant\u2019s initial accounts (see paragraph 20 and 21 above) were probably nearest to the truth.","37.On 7 November 2011 NSPCC NCTAIL produced a supplemental report. In it, the social worker who prepared the previous report had regard to further documentation primarily related to the criminal proceedings and considered whether it was necessary to change the opinion set out in the earlier report (see paragraphs 31-32 above). She concluded that there was no new material in these documents which would cause her to change her professional opinion. In fact, she considered that the material in some of the documents combined with her increased experience in the area of child trafficking strengthened her conclusion that the second applicant was a victim of trafficking at the time of his arrest. In this regard, she pointed out that accounts given by potential child victims of trafficking to different professionals, in different contexts, were rarely entirely consistent with each other.","38.The first applicant sought permission to appeal \u2013 out of time \u2013 against conviction and sentencing. He argued that he should have been advised to vacate his plea and an application to stay the proceedings should have been made because he was a credible victim of trafficking and, as such, should not have been prosecuted. He also complained that there was no appropriate adult present when he decided not to change his plea, and that the CPS failed to confirm why it was in the public interest to prosecute.","39.As it was one of the first cases in which the problem of child trafficking for labour exploitation was raised following the coming into force of the Council of Europe Convention on Action Against Trafficking in Human Beings (\u201cthe Anti-Trafficking Convention\u201d), permission was granted. The court commented","\u201c...it does appear to the court that there are two matters of potential concern. First, there is an appearance that something has gone wrong when one arm of the State (the Home Office) has accepted that a person has been trafficked, but another arm of the State (CPS) has reached the opposite conclusion seemingly without knowledge of the former. It is arguable that as a matter of public law once the government, through the Home Office, has accepted that a person has been trafficked, the CPS ought to proceed on the same basis unless there is some strong reason to do otherwise. Secondly, the applicant appears not to have been given adequate advice about his position, which was an unusual one.\u201d","40.The second applicant also sought permission to appeal out of time against his conviction and sentence. In his perfected grounds of appeal against conviction he argued, inter alia, that his conviction was unsafe because as a minor and victim of trafficking and forced labour contrary to Article 4 of the Convention he had been entitled to protection rather than prosecution. In particular, he argued that the CPS should have carried out a much greater investigation into whether he had been trafficked into the United Kingdom and exploited in a cannabis factory. He relied in part on the evidence of a Children\u2019s Services Practitioner at NSPCC NCTAIL who, referring to guidance published by the CPS and the Association of Chief Police Officers (hereinafter, \u201cACPO\u201d \u2013 see paragraph 74 below), argued that the appropriate response in the second applicant\u2019s case would have been for the police to have made a referral to the local authority children\u2019s services as soon as he was recovered from the cannabis factory. The police should then have shared as much information as possible to help children\u2019s services undertake the appropriate trafficking assessment and other welfare needs should have been identified and responded to within a safeguarding and child protection context. The grounds of appeal also referred to a report by the Child Exploitation and Online Protection Command (hereinafter, \u201cCEOP\u201d, a National Crime Agency \u2013 see paragraphs 81-83 below) which indicated that in spite of the fact that any child identified in a cannabis factory was likely to be a victim of trafficking, there had been a trend towards prosecution rather than protection of Vietnamese children found on these factories.","41.The second applicant further argued that the common law defence of duress was unsuitable to cases concerning child trafficking victims, since a trafficked child could not in law consent to his or her own trafficking.","42.Permission was granted and his appeal was joined to that of the first applicant.","43.In a judgment handed down on 20 February 2012, the Court of Appeal found that Article 26 of the Anti-Trafficking Convention (the so\u2011called \u201cnon-punishment provision\u201d \u2013 see paragraph 103 below) was directed at sentencing decisions as opposed to prosecutorial decisions and could not, therefore, be interpreted as creating immunity for victims of trafficking who had become involved in criminal activities; nor could it extend the defence of duress by removing the limitations inherent in it. Summarising the essential principles derived from recent case-law, it noted that the implementation of the United Kingdom\u2019s obligations under the Anti-Trafficking Convention was","\u201cnormally achieved by the proper exercise of the long established prosecutorial discretion which enables the Crown Prosecution Service, however strong the evidence may be, to decide that it would be inappropriate to proceed or to continue with the prosecution of a defendant who is unable to advance duress as a defence but who falls within the protective ambit of Article 26. This requires a judgment to be made by the CPS in the individual case in the light of all the available evidence. That responsibility is vested not in the court but in the prosecuting authority. The court may intervene in an individual case if its process is abused by using the \u2018ultimate sanction\u2019 of a stay of the proceedings. The burden of showing that the process is being or has been abused on the basis of the improper exercise of the prosecutorial discretion rests on the defendant. ... The fact that it arises for consideration in the context of the proper implementation of the United Kingdom\u2019s Convention obligation does not involve the creation of new principles. Rather, well established principles apply in the specific context of the Article 26 obligation, no more, and no less. Apart from the specific jurisdiction to stay proceedings where the process is abused, the court may also, if it thinks appropriate in the exercise of its sentencing responsibilities implement the Article 26 obligation in the language of the article itself, by dealing with the defendant in a way which does not constitute punishment, by ordering an absolute or a conditional discharge.\u201d","44.The court identified the principal issue in the appeals to be whether the process of the court was abused by the decision of the prosecuting authority to prosecute. However, having fully considered the facts of the applicants\u2019 cases, the court dismissed their appeal against conviction.","45.In respect of the first applicant, the court stated that:","\u201cOpening the case for the Crown, counsel focused on the evidence which suggested that the appellant could not be described as a trafficked person. He was found with cash on him. He was provided with a mobile phone and credit for use with that phone. The house was an ordinary house, far from a make-shift prison, where the defendant said he had been left and provided with groceries at weekly intervals. The account given by the appellant in interview in which he said that he arrived seeking an adoptive father was contrasted with what he said in the Trafficking Assessment. When asked questions to identify who this adoptive father might be, he was unable to provide any comprehensible explanation. His movements about the country after his arrival, and his allegedly accidental presence in Cambridge, when he had simply bumped into two further co-nationals who offered him the opportunity of going to Cambridge was inconsistent with having been the victim of trafficking. Over the months the account had developed of some \u2018mild pressure or threats\u2019 being put to the defendant but the Trafficking Assessment itself provided information that the appellant was clear that his family in Vietnam was not under threat, that there were no debts owed to anyone in Vietnam, and that he had not been abused prior to his arrest. The Crown examined the facts in detail and had come to the conclusion that there was no \u2018reason whatever to revise their initial assessment of the public interest that the appellant\u2019 was someone who should be prosecuted.","Given the meticulous care and detailed examination of all the relevant evidence made both by counsel for the Prosecution and the Crown Prosecution Service, and the fair and balanced approach taken by Judge [C] throughout these protracted proceedings, the prospects for this appeal were unpromising.","In essence, the argument advanced by [counsel] proceeds on the basis that given the information available to the defence at the time when the case proceeded to sentence, an application should have been made to vacate the guilty plea. However, as he accepts, there was nothing to suggest that the plea could be considered a nullity, or that the theoretical defence of duress would have had any realistic prospect of success. Nevertheless if the application to vacate the plea had been made, and then granted, on the basis of the appellant\u2019s youth and the findings in his favour in relation to trafficking, the judge would then have been invited to consider an application to stay the prosecution, and presumably, that [sic.] if such an application had been made, the judge would have granted it. This is all entirely speculative, and does not address the reality. Even if the judge might have been persuaded to allow the appellant to vacate his plea for the argument in support of an order for the stay of proceedings to be mounted, the inevitable outcome of any such hearing would have been that the decision to continue the prosecution was fully justified. On the facts, the decision to prosecute was amply justified. That would have been the view formed by Judge [C], and it is the unhesitating conclusion which we have reached.\u201d","46.The Court did, however, allow the first applicant\u2019s appeal against sentencing as it found that, given his age and guilty plea, a twelve month custodial sentence would have been sufficient.","47.With regard to the second applicant, it noted that in taking the decision to prosecute him, the CPS did not have the advantage of UKBA\u2019s finding that he was a child victim of human trafficking. However, even if that report had been available, UKBA and the CPS exercised different responsibilities and neither could bind the other. The court made the following remarks:","\u201cIn essence, the argument in support of the contention that the conviction is unsafe was, at any rate to begin with, based on the stark proposition that everyone involved in the case missed the real point, that the appellant fell squarely within the provisions of Article 26 of the Convention, and that he had been trafficked into the country. [Counsel] argued that the Crown Prosecution Service should have carried out a much greater investigation into the question whether the appellant had been trafficked into this country and exploited in the cannabis factory; that those who acted for the appellant should have alerted the Crown Prosecution Service to the same problem and invited them to conduct further investigations; and indeed at one stage that the judge herself had been remiss in failing to recognise the problem and requiring its further investigation.","[Counsel] advanced sustained submissions critical of the process of which the sentence was the culmination. In part he relied on the contemporaneous Guidance and Codes of Practice which form part of the publications noted earlier in the judgment. On close analysis his submissions appeared to mean the many thousands of individuals who might, in the course of their duties, become involved in the investigation and prosecution of offences should be deemed to know and fully appreciate the ambit and potential impact of every single publication offering guidance or advice whenever an individual who may possibly fall within the Convention is arrested. This is somewhat unrealistic. Although there must, inevitably, be broad understanding of the way in which different bodies vested with these responsibilities are operating, the CPS, or ACPO, or indeed each other responsible body, cannot immediately appreciate every item of guidance or advice issued by every other body. In this particular case, for example, the Child Exploitation and On Line Protection Centre representing ACPO issued its report on the very day on which [the applicant] himself was interviewed after his arrest. In any event, it appears to us that in the initial stages after the implementation of the Convention the primary focus of attention was the distinction between those who were \u2018smuggled\u2019 into the country and those who were \u2018trafficked\u2019 into it. But, more important, the criticisms ignore the facts, and in particular the impact of the appellant\u2019s accounts in interview, to his lawyers, and the writer of the Pre-sentence Report about the circumstances in which he became an immigrant into this country and worked in the cannabis factory. These accounts were, it must be emphasised, the instructions and the explanations provided by the appellant himself. The evidence available to those who were acting for him, that he had been \u2018smuggled\u2019 as a volunteer, was unanswerable. Moreover it appeared that he made the choice to start working with [H] rather than find work at or near the safe home provided by his cousin, and that he chose to work, at first without apparent difficulty. Thereafter the appellant\u2019s period of work in the cannabis factory before his arrest was very short lived. It had been interrupted by a not insignificant break. He was in possession of cash. After his arrest he had continued in communication with his family in Vietnam and his cousin in England, without suggesting that he had made any complaint or expressed any concern.","Despite [Counsel\u2019s] efforts to persuade us to the contrary view, at this date there was no evidence before the Crown Court, or for that matter the CPS or indeed the defence, which suggested that the appellant had been trafficked into this country, or that he fell within the protective ambit of Article 26. Rather the effect of the evidence was that he was a volunteer, \u2018smuggled\u2019 into this country to make a better life for himself and that he had a home with a family member to which he could have gone and where he would have been welcome. The essential point in mitigation, correctly taken on the basis of the appellant\u2019s instructions, was that he was very young, and in a vulnerable position as an illegal immigrant, and that in his short time working in the cannabis factory, like his co-defendants, he had been exploited by others. That provided real mitigation, but in the light of the facts as they appeared to be, and on the basis of the Guidance to Prosecutors then current, the decision to prosecute rather than to conduct further investigations did not involve any misapplication of the prosecutorial discretion sufficient to justify the conclusion that this prosecution constituted an abuse of process on the basis of a breach of Article 26 of the Convention.\u201d","48.The court also expressed doubts about the value of the expert evidence which came to light following the second applicant\u2019s conviction and sentence (see paragraphs 30-37 above). This was not to impugn the good faith of the experts, but rather an acknowledgment of the fact that their conclusions were dependent on the second applicant\u2019s account of events. In addition, the new material did not support the contention that he was a victim of forced labour. On the contrary, it suggested that he chose to work in the cannabis factory when he had available to him a safe home with a family member, and the evidence suggesting that he was \u201ccompelled\u201d to work in those conditions was at best \u201cnebulous\u201d. Consequently, his conviction could not be said to be unsafe.","49.However, in view of the second applicant\u2019s young age, his guilty plea and the extremely short period he was working in the cannabis factory, the court indicated that it should have reduced his sentence to a four month detention and training order.","50.In conclusion, the Court stated that:","\u201cJust because the issues in cases which involve Article 26 of the Convention are often extremely sensitive, we have examined a vast bundle of post-conviction evidence, much of which is, on analysis, repetitive. We have also examined numerous publications and considered all the expert evidence. In the context of fresh evidence we shall identify a series of considerations of broad general effect.","...","d)It has been made plain in numerous decisions of this court, that a defendant is provided with one opportunity to give his or her instructions to his legal advisors. His defence is then considered and advanced and he is advised about his plea in the light of those instructions. It is only in the most exceptional cases that the court would consider it appropriate to allow a defendant to advance what in effect would amount to fresh instructions about the facts for the purposes of an appeal against conviction. There is no special category of exceptionality which arises in the context of Article26.\u201d","51.Both applicants applied for leave to appeal to the Supreme Court. The first applicant asked that the following points of law be certified: whether the exercise of discretion by the CPS as to whether to prosecute a child found by the Competent Authority to be the victim of trafficking exhausted the United Kingdom\u2019s obligations under domestic and international law for that child; and on what standard of proof the CPS had to find the child a credible victim of trafficking for the child not to be prosecuted. The second applicant invoked Article 4 of the Convention and submitted that the facts of the case raised a question concerning the extent to which the CPS should give weight to the positive findings of those given the responsibility for determining the status of a child who may have been trafficked.","52.The applications for permission to appeal to the Supreme Court were refused.","53.On 22 January 2014 the Treasury Solicitors asked that the first applicant\u2019s Conclusive Decision (see paragraph 13 above) be reconsidered based on the information contained in the CPS file and the comments made by the judge in sentencing him.","54.In a decision dated 31 July 2014 the Competent Authority indicated that the Conclusive Decision would be maintained. In its opinion, the information provided did not change the key points of the case which were that the first applicant was found inside a cannabis factory when he was a minor. According to the Palermo Protocol and the Anti-Trafficking Convention, in order to be considered a victim of human trafficking three constituent elements usually had to be present: the person had to be subject to the act of recruitment, transportation, transfer, harbouring or receipt (action); by means of threat of force or other form of coercion (means); for the purpose of exploitation, including, inter alia, forced labour or services (purpose). However, the \u201cmeans\u201d element was not required where the individual was a child as they could not give informed consent. In the first applicant\u2019s case, he worked for other people as a gardener so he was recruited. In addition, he was locked in the property which was considered to constitute harbouring. Finally, the work that he did was illegal, therefore the benefits that he received for doing it were not proportionate to the work that he was required to do. Therefore, in the view of the Competent Authority it was very clear that the first applicant had been trafficked. Insofar as the judge at his criminal trial had doubted that he was trafficked, his findings relating to credibility related to peripheral issues that did not go to the core of the elements that made up the definition of trafficking.","55.On 13 December 2013 the first applicant sought a review of his conviction based on new evidence and new legal arguments. The former constituted fresh medical evidence indicating that the first applicant had, on the balance of probabilities, Asperger\u2019s Syndrome together with symptoms of PTSD and, as a consequence, was likely to have been socially na\u00efve and vulnerable to exploitation. In respect of the latter, the first applicant argued that the Prosecution\u2019s failure to conduct a trafficking investigation was in breach of Article 4 of the Convention and rendered the decision to prosecute unlawful. Furthermore, the Prosecution had failed to give any proper consideration to the fact that the first applicant was a minor who had been assessed by both UKBA and social services as having been trafficked.","56.On 14 April 2016 the Criminal Cases Review Commission (hereinafter, \u201cthe CCRC\u201d) decided to refer the first applicant\u2019s case back to the Court of Appeal on the following grounds: there was new evidence available to show that he should have been recognised by the CPS as a credible child victim of trafficking and was compelled to commit a criminal offence as a direct consequence of his trafficked situation; that there was a real possibility that the Court of Appeal would vacate his guilty plea and find that it was an abuse of process to prosecute him without due regard to the United Kingdom\u2019s obligations under Article 26 of the Anti-Trafficking Convention; and that there was therefore a real possibility that his conviction would be quashed. It noted, in addition, that the 2009 CPS guidance appeared to be defective; while it made reference to the degree of duress or coercion to which child victims may be subject, it failed to underline that compulsion to commit an offence was not required.","57.The first applicant\u2019s appeal was heard together with five other appeals in which convicted defendants argued that they should not have been prosecuted as there was a nexus between their crimes and their status as victims of trafficking.","58.The first applicant\u2019s grounds of appeal were (i) that if the information which subsequently came to light had been known by the CPS prior to the decision to prosecute, and had the Article 26 guidance been applied to those facts, the CPS and\/or the Court of Appeal would not have concluded that it was in the public interest to prosecute him; (ii) that the Crown misdirected itself by importing the requirement of force\/coercion into the question of whether he was a trafficked child within the meaning of Article 26; (iii) that the Crown, in assessing whether he was an exploited child, took into account immaterial considerations and failed to take into account material considerations; (iv) that the Crown failed to grasp the central relevance of whether he had been trafficked to the public interest in his prosecution; and (v) that the decision to prosecute him and to preclude the application of Article 26 was rendered unlawful by the failure to prompt a criminal investigation into whether he was trafficked or not \u2013 as required by Article 4 of the Convention \u2013 which would have informed the public interest decision.","59.Prior to the hearing the first applicant\u2019s representatives prepared a note on Competent Authorities to assist the Court of Appeal in considering the interplay between the Competent Authority\u2019s identification of a potential victim under the National Referral Mechanism and how this fitted within the criminal justice framework. It noted that there was a procedural obligation on the State \u2013 which constituted a procedural obligation under Article 4 of the Convention \u2013 to investigate situations of potential trafficking. Both the Competent Authority and the Local Authority had assessed and identified the first applicant as a trafficked child. This information had triggered a positive obligation on the police and the Crown to conduct an Article 4 compliant investigation into the allegation of child trafficking. They both had a number of opportunities to discharge that obligation but failed to do so. Both the Competent Authority and the Local Authority had, however, acted in accordance with their responsibilities. The Crown should not, as a result, be able to pray in aid their Article 4 failings, and those of the police, to undermine the assessments of the Competent Authority and the Local Authority.","60.Before the Court of Appeal Anti-Slavery International submitted, as interveners, that in order to comply with international conventions the court should develop the law of duress so that persons who could not avail themselves of section 45 of the Modern Slavery Act 2015 (which reflected the \u201cnon-punishment provision\u201d in the Anti-Trafficking Convention \u2013 see paragraph 103 below) because it was not in force at the relevant time would be in the same position as those who could rely on it.","61.Judgment was handed down on 9 February 2017. The Court of Appeal took the view that even prior to the coming into force of the Modern Slavery Act 2015 the law operated in practice in a way entirely consistent with the United Kingdom\u2019s international obligations. It therefore rejected any suggestion that the current approach \u2013 particularly in respect of the defence of duress \u2013 should be revised for cases not covered by the 2015 Act. In the case of minors, the court reiterated that once it was established that a child was the victim of trafficking for the purposes of exploitation, the relevant question was whether there was a sufficient nexus between the trafficking and the offence; it was not necessary to show there was compulsion to commit the offence (as would be required in the case of an adult). Although the court accepted that this was not clear from the 2009 CPS guidance, both the 2011 and the 2015 guidance were more explicit.","62.With regard to the relationship between the Competent Authority (see paragraphs 75-76 below) and the CPS, the court noted that the latter was not bound by a decision of the former. It continued:","\u201cWhere there is an issue as to whether a person is a victim of trafficking for the purposes of exploitation whilst a prosecution is being considered or is in progress, the CPS and police are able to refer to the Competent Authority the case of a person in respect of whom there may be evidence of that person being a victim of trafficking. Provision is made in the Guidance to the Competent Authority for cooperation with the police and CPS in all cases before the conclusion of the prosecution. We were told that the cooperation has been developed so that during the procedures for considering prosecution every effort is made to reach a common view on whether the evidence points to the person being a victim of trafficking. That is plainly of the greatest importance, as the cogency of the evidence which may be relied on by the Competent Authority must be subject to thorough forensic examination when the CPS is considering the question of nexus and whether it is in the public interest to prosecute.","However, in respect of a person claiming after conviction to be a victim of trafficking, there is no clear guidance on or process in respect of co-operation with the CPS or in obtaining court documents. These appeals have shown that it would [be] desirable for much clearer guidance and processes to be developed between the CPS and the Competent Authorities in cases where the claim to be a victim of trafficking is made after conviction. It is important to appreciate a court will bear the Competent Authority\u2019s conclusion very much in mind but will examine the question of the cogency of the evidence on which the Competent Authority relied and subject the evidence to thorough forensic examination. It does not follow from the fact than an individual \u2018fits the profile\u2019 of a victim of trafficking that they are necessarily the victim of trafficking. A careful analysis of the facts is required including close examination of the individual\u2019s account and proper focus on the evidence on the nexus between the trafficking and the offence with which they are charged.\u201d","63.In the first applicant\u2019s case, the Court of Appeal was satisfied that his criminality or culpability had not been extinguished or significantly reduced to such a level that he should not have been prosecuted in the public interest. It said:","\u201cThis same ground of appeal albeit differently expressed was at the heart of the appeal on the last occasion in 2012. As we have set out, the court held that the decision to prosecute was amply justified. This is not a case therefore where the court or a defendant\u2019s lawyers have missed the opportunity to review an offender\u2019s status as a possible victim of trafficking and the nexus with the offence. This was an issue explored with great care and in great detail at the Crown Court and by this court.","It would require a compelling piece of fresh evidence or line of argument to persuade us to re-tread well-trodden ground. In the appellant\u2019s case, there is in truth very little by the way of fresh evidence or fresh argument. The Home Office\u2019s determination that the appellant has been trafficked was before the Crown Court and the Court of Appeal.","The only \"fresh evidence\" is the medical report that the appellant is on the Asperger\u2019s spectrum and is socially na\u00efve. The submissions to us have made what can be made of that evidence, but we bear in mind the observations of this court in the earlier appeal ... as to the limited assistance given by expert reports that rely so heavily on the account given by the applicant where it differed from earlier accounts. In our judgement, neither the medical report nor its support for the Home Office\u2019s conclusion is enough to undermine the appellant\u2019s plea of guilty or the court\u2019s conclusions on the last occasion that the decision to prosecute in the public interest was amply justified.","The appellant, who was very nearly an adult, stayed in a house as a gardener of cannabis plants. He was not a prisoner, he had a significant quantity of cash (for no obvious reason) and he had access to a telephone. His explanation of his presence at the house was unsatisfactory and his account of how he got there far from consistent. On those facts, it was open to the Crown to decide that the prosecution should continue as the relevant nexus in the case of a child victim of trafficking had not been established.","We reject the assertion that the Court on the last occasion applied the wrong test as to the compulsion required in the case of a child. The judgment begins with a clear statement of all the relevant principles in relation to trafficking including the relevant principles as far as child victims are concerned. The court did not proceed on the basis the appellant had to establish compulsion before his plea could be vacated. ... [T]he paragraph in which reference is made to compulsion and which is the subject of criticism did not relate to this appellant. In paragraph 90 of its judgment on the earlier appeal the court was addressing a particular issue in relation to the co-accused as we have explained. The Crown and this court on the last appeal considered the nexus between the trafficking and the offence on the correct basis; it did not suggest that there had to be evidence of compulsion.\u201d","64.The first applicant applied to the Court of Appeal for a certificate that points of law of general public importance were involved in the decision of 9 February 2017 which ought to be considered by the Supreme Court. Those points concerned how the prosecuting authorities and the courts should approach the decision as to whether it is in the public interest for a prosecution to proceed where it is alleged that the suspect is a victim of trafficking; whether the CPS and the criminal court should be bound by a finding of the Competent Authority unless it would be unreasonable on the facts for them to be so bound; and whether the requirement of \u201ccompulsion\u201d should be omitted in the case of child victims of trafficking.","65.That application was refused on 21 March 2017."],"199":["2.The applicants were born in 1970 and 1945 respectively and live in Sofia. They were represented initially by Ms M. Ilieva, a lawyer practising in Sofia and at the material time working with the Bulgarian Helsinki Committee, and then by Ms A. Kachaunova, also a lawyer practising in Sofia and working with that Committee, and by Mr K. Kanev, the Committee\u2019s chairman.[1] On 15 January 2016 the then President of the Fifth Section gave Mr Kanev leave to represent the applicants in all pending and future cases in which he was appointed to personally act as their representative (Rule 36 \u00a7 4 (a) in fine of the Rules of Court).","3.The Government were represented by their Agent, MsI.Stancheva\u2011Chinova of the Ministry of Justice.","4.Ataka is a Bulgarian political party founded in April 2005. In parliamentary elections held on 25 June that year it received 8.14% of the votes cast and won twenty-one seats in Bulgaria\u2019s two-hundred-and-forty-seat Parliament. In parliamentary elections held in 2009 it received 9.36% of the votes cast and again won twenty-one seats. In parliamentary elections held in 2013 it received 7.30% of the votes cast and won twenty-three seats. In parliamentary elections held in 2014 it received 4.52% of the votes cast and won eleven seats. It fought the March 2017 parliamentary elections as part of a three-party coalition, United Patriots, which gained 9.31% of the votes cast, and won eight of the coalition\u2019s twenty-seven seats. In May 2017 United Patriots entered into a coalition with GERB, the political party then holding the biggest number of parliamentary seats, and formed a joint government with it; United Patriots received three ministerial positions, one of which was allocated to Ataka. At the elections for European Parliament in May 2019 Ataka received 1.07% of the votes cast and did not win any seats. Ataka has its own television channel, which apparently regularly broadcasts a programme attacking ethnic minorities and foreigners (see paragraph 36 in fine below).","5.The party\u2019s leader, Mr Volen Siderov, has been an Ataka Member of Parliament since 2005. Before that, he worked as a journalist: in the early 1990s he was editor-in-chief of the daily newspaper Demokratsia; then, in the early 2000s, he was a columnist for the daily newspaper Monitor; and later he served as the presenter of a daily television programme Ataka, aired by the television station SKAT. In September 2006 he stood as a candidate in that month\u2019s presidential election. He came second in the first round of voting, receiving 21.5% of the votes cast, and in the run-off lost against the incumbent, Mr Georgi Parvanov, by 24.05% to 75.95%. In February 2011 Mr Siderov again announced his candidacy in the upcoming presidential election. Inthe first round of voting, which took place on 23 October 2011, he received 3.64% of the votes cast. Following the 2017 parliamentary elections (see paragraph 4 above), Mr Siderov became chairman of the United Patriots parliamentary grouping, but in July 2019 was removed from that position and was excluded from the parliamentary group along with two other Ataka members of parliament. Ataka nevertheless kept the ministerial position that it had in the coalition government (see paragraph 4 above).","6.The applicants described Ataka as a \u201cxenophobic party\u201d and said that in his career as a journalist and politician Mr Siderov had systematically engaged in extreme anti-minority propaganda, by way of his books, his articles in Monitor, and then his television programme, which in effect he had made his political platform.","7.Further information about Ataka\u2019s activities and political positions can be found in Karaahmed v. Bulgaria (no. 30587\/13, \u00a7\u00a7 7-27, 24February 2015).","8.In January 2006 the applicants and sixteen other people, as well as sixty-six non-governmental organisations, brought proceedings against MrSiderov under section 5 of the 2003 Protection from Discrimination Act (\u201cthe 2003 Act\u201d \u2013 see paragraph 22 below). They alleged that a number of public statements made by him had constituted harassment of, and an incitement to discrimination against, Roma, Turks, Jews, Catholics and sexual minorities. The applicants argued, inter alia, that each of them \u2013 as a member of a minority \u2013 had been personally affected by those statements; they also based their claim against Mr Siderov on Article 32 \u00a7 1 of the Constitution (see paragraph 19 below), noting that it afforded protection against infringements of one\u2019s dignity.","9.The Sofia District Court split the case into eight separate cases on the basis of the specific type of discrimination alleged by each group of claimants. The case of the two applicants, both of whom were Roma working as journalists who often reported on Roma-related issues, concerned statements made by Mr Siderov in relation to Roma.","10.In their claim, the applicants asserted that a number of statements made by Mr Siderov in his television programme, interviews, speeches and a book had amounted to harassment and incitement to discrimination against people of Roma ethnic origin. The applicants sought court orders against Mr Siderov to stop making such statements and to restore the status quo ante by publicly apologising for his statements.","11.The applicants referred in particular to the following statements by Mr Siderov (arranged in the order in which they appeared in the particulars of claim):","The 1 June 2005 edition of the Ataka television programme(with the theme of \u201cGypsy terror\u201d)","\u201c... Professor [S.K.] died, expired, passed away. The man [was] beaten to a pulp after a terrorist attack by a Gypsy gang on peaceful Bulgarians [having fun] in their own place. ...","... This scientist \u2013 Bulgarian, famous, man of authority enjoying a very good name in scientific circles \u2013 was killed like a dog by a gang of ferocious Gypsies. With premeditation, wilfully, sadistically ...","... This whole genocide [was] carried out against the Bulgarian community in the Zaharna Fabrika neighbourhood. A genocide committed by an ethnic group of Gypsies. There is in Bulgaria a racial, ethnic discrimination against Bulgarians by the Gypsy ethnic group. ...\u201d","The 4 June 2005 edition of the Ataka television programme(with the theme of \u201cGypsy terror\u201d)","\u201c... A gang of Gypsies, eighty strong, carried out a terrorist attack against several Bulgarians who were attending the high school graduation dance of a man from the neighbourhood. People were thrashed in the course of this attack; one of them died. A fifty-three-year-old university professor of history, [S.K.], died after an awful, sadistic beating. It turns out that the problem is not confined to Zaharna Fabrika. This is a problem for the whole of Bulgaria. I have received information about similar happenings from all corners of the country. Some of the stories are harrowing, and people say that they live in such fear that they dare not even complain to the police because they would not do anything in response. I received information from the village of Mechka, near Pleven. I have spoken [before] about this village \u2013 there, in 2000, [P.T.] was killed in his own yard. Until this day this man\u2019s killers have not been caught, have not been convicted. They are from among the Gypsies, from the village\u2019s Gypsy neighbourhood. After this case, it turned out that it was not only this murder that had not been investigated \u2013 there had been seven more [such cases], villagers told me. Today they live in a fear that can only be compared with the fear of people living under foreign occupation \u2013 trembling each day for their life, for their property. ...\u201d","The 7 June 2005 edition of the Ataka television programme(with the theme of \u201cGypsy terror\u201d)","\u201c... And Gypsy terror over Bulgarians is growing literally by the week. ...","... This shows that the authorities refuse to deal with the Gypsy terror. This is a tremendous problem for Bulgaria. And I am telling you that if the authorities keep on refusing to address the issue, in two-three years, or five, Gypsy terror will become Bulgaria\u2019s foremost problem. But it will then be too late, for Bulgarians will have self-organised and responded to violence with violence. ...","... Think very hard; if Euroroma [a political party] enter Parliament, what greater [level of] protection will the terrorists from the Gypsy ghettoes ever gain? Because the thing they carry out \u2013 it is organised terror against Bulgarians. This terror must be brought to a halt. This terror must be resisted. And I promise you that work is being done in that respect. Hard work is being carried out by Bulgarians who can no longer bear the terrorising of their compatriots and will do all they can for this to cease. ...[2]\u201d","The 8 June 2005 edition of the Ataka television programme(with the theme of \u201cGypsy terror\u201d)","\u201c... There is no town, no settlement in Bulgaria that has not borne the brunt of Gypsy terror. ...","... I want to tell you also that the question of Gypsy terror can only be resolved by tackling ... tackling this population in general \u2013 putting it where it belongs. They should work, learn to respect the laws, learn to meet their obligations, [learn] to pay their taxes and dues. ...\u201d","The 14 June 2005 edition of the Ataka television programme(with the theme \u201cThe Gypsy killers of Professor [K.] are free\u201d)","\u201c... The Gypsy terror in Bulgaria continues. The Gypsy terror in Bulgaria has never stopped. What is more, this has now begun to be acknowledged by international studies that show that the bulk of the crime in the country \u2013 upwards of 30% \u2013 is being carried out by Gypsies. At the same time, this ethnic group accounts for a mere 5% of the general population. So we Bulgarians have been subjected to total Gypsy terror. Every day, every hour, in all corners of Bulgaria. ...","... An esteemed Bulgarian scientist was killed in a sadistic, barbaric manner by a gang of Gypsies. ...[3]\u201d","The 4 May 2005 edition of the Ataka television programme(with the theme \u201cThe racial discrimination against Bulgarians in Bulgaria\u201d)","\u201c... At the same time, whole Gypsy neighbourhoods are not only not paying for their electricity but also beat up fee collectors, attack the police vehicles that try to re\u2011establish order, ... smash everything around them, loot shops, rob people ... and nothing is being done to them. When you ask the high command of the police or the State in general why they have not taken any measures, they say \u2013 in order not to provoke an ethnic conflict. So a group of people in Bulgaria \u2013 non-Bulgarians \u2013 is being placed in a privileged position. ... This is called democracy, this is called integration, this is called wonderful names, which however conceal a single thing \u2013 discrimination and genocide against the Bulgarians in Bulgaria. ...\u201d","The 6 May 2005 edition of the Ataka television programme","\u201c... This huge wave of external and internal factors, which wish, which categorically wish and work to de-Bulgarianise Bulgaria. Work to destroy the Bulgarian nation as a nation.[4] Work for its Gypsification, for its Turkification. Work for everything but the possibility for the Bulgarian people to consist of Bulgarians. I would like to tell you that according to official statistical data more than half of the children born in Bulgaria are either little Turks or little Gypsies. This is because nowadays, with plenty of outside money, anti-Bulgarian factors, aided by national traitors from within, have long since been working to divide the Bulgarian people. Work is being done to make Gypsies feel like a separate nationality, to pretend that they are apart and to seek collective rights. Work is being done for all sorts of other ... to create all sorts of other invented nationalities in Bulgaria. The results are at hand \u2013 already more than half of all newborns in Bulgaria are not Bulgarian. This means that the de-Bulgarisation process is moving towards its high point \u2013 the end of the Bulgarian nation. ...\u201d","The 25 May 2005 edition of the Ataka television programme(with the theme \u201cGypsy terror\u201d)","\u201c... Today I would like to speak about a topic on which the so-called official media keep silent, and on which politicians keep silent too. This topic is Gypsy terror \u2013 the Gypsy terror carried out towards Bulgarians in Bulgaria. This is a very serious topic; this is a drastic topic. But most media, as I said, keep silent about this topic. ...","... Awful violence has taken place in the Zaharna Fabrika neighbourhood towards Bulgarians, and more than eighty Gypsies took part in it. They wrecked an establishment [selling food and drink], beat up a police officer, beat up the establishment\u2019s owner, beat up the people who were there, and yet I do not know of any of them having been arrested. Here \u2013 see this material from the front page of Noshten Trud, the only newspaper that does not shirk from writing about the Gypsy topic \u2013 the topic of Gypsy terror towards Bulgarians. ...","... In this case, notably, police officers were hurt as well. Though they tried to shoot plastic bullets into the air, they were attacked and some were struck and beaten up by the Gypsies. This is not the first such case. You will recall that a village police officer in a village near Burgas was beaten up \u2013 attacked by a gang of Gypsies. Forest rangers were attacked in Botevgrad and the vicinity. Forest workers were attacked near Samokov. Terror is constantly being generated across Bulgaria. By a population that calls itself \u2018a minority\u2019. Except that in many towns and villages in Bulgaria it is no longer a minority but the majority. There are today hundreds of villages in Bulgaria in which the prevailing population is Gypsy. Not only does it not integrate \u2013 something that parrots getting food from foreign foundations talk about; it also terrorises the Bulgarian population there. This terror continues under the benevolent gaze of the ruling clique, which not only does nothing but also stops the law-enforcement authorities from intervening. Usually, when something like this happens, as in the case of this terror over Bulgarian citizens in Zaharna Fabrika, then orders come from somewhere high-up for the police not to intervene, for investigators to keep mum, for prosecutors not to sweat too much, and for the judicial system to, you know, close its eyes and not put the ruffians, the rapists, the killers \u2013 very often of Gypsy origin \u2013 in prison. ...","... The Bulgarian State nowadays tolerates Gypsy terror against Bulgarians. ...\u201d","The 30 May 2005 edition of the Ataka television programme(with the theme \u201cGypsy terror\u201d)","\u201c... Today I continue with the topic of Gypsy terror. ... These are between 1,500 and2,000 Gypsies \u2013 no-one can say how many exactly \u2013 who have come from all over the country, have settled there, without registering their address. All of them are deemed to inhabit the same address ... and live there illegally. They do not pay taxes, do not pay fees, do not pay for electricity, do not pay for water supply. They pay for nothing. But what do they do \u2013 they beat up Bulgarians, rob them, ill-treat them, rape women, kill; there have been several murders already. I categorically promise you, dear Bulgarians, that I will investigate these cases, because this is not simply terror \u2013 \u2018Gypsy terror\u2019, as I have entitled my programme \u2013 this is genocide. This is to commit genocide against the Bulgarian ethnic group in Bulgaria. This genocide is being manipulated and stimulated from abroad. I have information that these Gypsy raids are being paid for \u2013 paid for so that they be organised and stir up unrest. Someone wishes this place to become like Kosovo. ...\u201d","The 22 March 2005 edition of the Ataka television programme(with the theme \u201cGypsy terror\u201d)","\u201c... And this is just one episode from the long series of instances of Gypsy violence, which is now an everyday occurrence in the capital. As you can see, we are talking about an inner-city school in the capital, in [the district of] Ovcha Kupel. And what about localities in the countryside \u2013 smaller settlements, villages \u2013 which are being constantly subjected to Gypsy violence? ...","... There are whole regions, dear Bulgarians, where settlements have in the last few years turned from Bulgarian \u2013 predominantly Bulgarian \u2013 to predominantly Gypsy. Someone would say that this is already a demographic issue. For my part, I say that this is a question of genocide against the Bulgarians, since Gypsy criminality is deliberately not being prosecuted. ...","... I must say that during the last few years \u2013 the last perhaps seven or eight years \u2013 about 102 towns and villages in Bulgaria have turned from predominantly Bulgarian to predominantly Gypsy. This means a conquest of Bulgaria \u2013 a \u2018Gypsification\u2019 that will lead to ... I personally dare not paint the picture that might result, because the impudence of those groups, ethnic groups, is growing like an avalanche. ...\u201d","The 23 June 2004 edition of the Ataka television programme","\u201c... We see how in the Borisova Gradina park the busts of a number of Bulgarian national writers and revolutionaries have gone missing, stolen by Gypsy gangs and melted for recycling. ...\u201d","Interview with Mr Siderov aired by SKAT television in June 2005","\u201c... I shall not detain people here with details of the dozens of instances of marauding, of crime left simply without any repercussions \u2013 just because it would cause ethnic unrest, as the people in power are now saying. ... They refuse to take a stance, and thus encourage whole groups of people, who simply know that they will not be sanctioned, and who do as they please. There are dozens of examples ... Villages, towns are simply squirming under a living terror. And this terror is becoming greater each day, and I believe that this should all be brought to a halt. There is a way to bring it to a halt. These ways ... so, at first they seem violent, administrative, but they are being applied in developed countries. And I shall again point to America, so very beloved by all democrats and liberal-mongering politicians. Where anyone who commits an offence or attacks you in your home \u2013 on your property, which is inviolable and sacred by constitution \u2013 you can literally shoot him, [while] protecting your home, and not be held liable. I am categorically in favour of that. I want the Bulgarian to be protected in his own home. To be able to protect his family, his property, and not wonder whether, if he defends himself, he will tomorrow become a target for the judicial system, be branded as a violent offender, as has happened in some cases ...","... Gypsification is an enormous problem. It is not such an easy problem. Because I know of no country in Europe that has managed to integrate its Gypsy population, fully and completely. There is no such country. The problem is that in Bulgaria \u2013 unlike in Germany or France \u2013 this population is a serious percentage. There, even if there are Gypsies, they are a lot fewer in terms of percentage and do not create such a problem. If no measures are taken \u2013 at State level \u2013 as part of a programme, then this problem (I am categorically certain [and] I assure all viewers, all Bulgarians of this) ... will become paramount for Bulgaria in only five to six years. Because this population\u2013 let\u2019s say it honestly, directly \u2013 understands sanctions. As does, by the way, a serious part of the population of the Earth when they are subjected to sanctions. And we cannot be confident that self-education [and] moral scruples will prevail and that one fine day we will see ourselves surrounded by a Gypsy ethnic group that will be at such a level of morality as to by itself heed all laws and moral precepts. ...\u201d","Speech by Mr Siderov at a pre-election rally of Atakain Burgas on 22 June 2005","\u201c... All Gypsy gangs, marauders, who torture, ill-treat, rape and loot in all towns of Bulgaria will be put in their place. ...","... Now is the time when we must begin to stop this process of the Gypsification of Bulgaria. ...\u201d","Speech by Mr Siderov at the first session ofthe newly elected parliament on 11 July 2005","\u201c... Because a gigantic genocide of the Bulgarian nation was carried out during this eight-year period. At the insistence of foreign factors (\u0444\u0430\u043a\u0442\u043e\u0440\u0438) hostile to Bulgaria, it is envisaged to leave [just] three-and-a-half to four million of our people [remaining in Bulgaria. This is the plan of the Bulgarophobes, and this plan is being carried out before our very eyes. If someone asks how, I will explain: by stripping Bulgarians of the right to be masters in their own State; by leaving them to die of misery and lack of medicine and medical treatment; by subjecting them to terror by Gypsy gangs, who every day attack, loot, rape and ill-treat the Bulgarian nation. And then, deliberately, no one seeks to uncover the crimes committed by them, because the foreign directive is precisely that \u2013 not to investigate offences committed by these minority groups. The goal is for Bulgarians to live in fear, to lose faith, to be crushed, submissive. ...\u201d","Interview with Mr Siderov aired by Darik Radio in July 2005","\u201cHost: Now, the other topic \u2013 Roma. How to resolve the problem of illegal logging and the Roma?","Mr Siderov: ... I know that in this region this is an everyday occurrence, this happens all the time: Gypsies with carts, with saws, with equipment \u2013 quite decent, by the way \u2013 are constantly cutting down [trees] ... there is illegal logging going on. ... This is well-known \u2013 everyone knows this. Just ask around the region \u2013 they will tell you. And in the fact that what happened here was a clash between Gypsy poachers who break the law (this should be said clearly, no one has done it until today) and law-enforcement authorities or forest rangers (I am not sure which \u2013 this will surely be elucidated in the future investigation). This is simply the consequence of something that is happening; measures against this illegal logging should have been taken long ago \u2013 put the perpetrators in prison and ensure that they do not think again of cutting down Bulgarian forests, because the damage is dreadful. This damage will not be made good for decades. This is simply an invasion of termites that is destroying Bulgaria.","Host: This is one side of the coin, Mr Siderov; but would you say that, should it be established that the gendarmerie or the forest rangers or the police have beaten up Gypsies \u2013 would you say that they should also be punished?","Mr Siderov: If it is established that Gypsies have beaten up \u2013 because I know of a case in which today or yesterday \u2013 not sure, let me avoid an error \u2013 but a very recent case in which Burgas Gypsies attacked some [water-charge] collectors and beat them up \u2013 collectors who were on their way to cut off the water mains of [someone] who had not paid water charges for three years.","Host: They should obviously be punished. And should those who beat up Gypsies likewise be punished?","Mr Siderov: Those who lay their hands on a law-enforcement officer should be punished with the full severity of the law. I am simply categorically in favour of that. In the case of [these gendarmes], I fully excuse the actions of the gendarmerie there, because in this case specifically we have a crime, we have illegal logging, we have an offence that has gone on for years. It was, you know, high time for the gendarmerie to intervene. I am for that.","Host: ... And yet, should Gypsies be beaten up in ... when they are being arrested?","Mr Siderov: This is not a correct question, because what is \u2018should they be\u2019 supposed to mean? Offences should be prevented ...","Host: Do you approve of violence against Gypsies?","Mr Siderov: If offenders put up resistance, they should be neutralised, including by force. This is the law. So there must have been some resistance, because there is more than one case in which Gypsies have attacked police officers, have attacked law\u2011enforcement officers; there were police officers, patrols, and so on, who were beaten up. This is inadmissible; in every civilised country such people are simply neutralised on the spot, at that very second, by all possible means. And this is absolutely lawful, within the bounds of the law.","Host: And do you approve? Because there have been such cases against Bulgaria in Strasbourg [regarding] the thrashing of Gypsies in investigation facilities. When they have already been caught, do not put up resistance \u2013 they are being tied up and beaten.","Mr Siderov: And I would ask you: do you approve of an attack on a law\u2011enforcement officer by a poacher, a law-breaker, a criminal?","Host: If we are to maintain a humorous vein \u2013 you are determined to preserve your image.","Mr Siderov: ... I am against Strasbourg\u2019s decision. If someone approves of a police officer being attacked, I, according to ... my personal opinion is that he should have permission and the right to shoot to kill in such cases, because this is how law\u2011enforcement authorities operate. This is how it is in America, this how it is, you know, in developed countries \u2013 the police are inviolable; they cannot be attacked, especially by someone who is committing an offence. This is the same as ... he should become a target for the police officer, for the law-enforcement officer who is doing his duty, and be neutralised, including by using firearms. ...\u201d","Passages from Mr Siderov\u2019s book Bulgarophobia,published in Sofia in 2003","\u201c... They steal to get out of poverty, say the waged [\u043f\u043b\u0430\u0442\u0435\u043d\u0438\u0442\u0435] human-rights defenders; they have no jobs. They skip over the tiny fact that Gypsy families keep their children out of school en masse and they remain illiterate. What kind of work can they get later? If you offer them agricultural work, they balk. They prefer to steal the fruit. To steal wiring and scavenge all things made of metal. According to villagers, it is chiefly Gypsies who now burn the forests, so that they can smuggle wood after that. ...\u201d (page 288)","\u201c... According to the statistics, unemployment benefits in Bulgaria are distributed as follows: 65.2% of the money goes to Roma [and] 14.6% for Bulgarians. Again, the few active Bulgarians of working age who remain in Bulgaria support a gigantic percentage of Gypsies who for their part only take benefits, do not pay for anything, and are on top of all that the main thieves of electric wiring, which has caused the State losses of hundreds of millions and is everywhere [else] treated as terrorism (but we are broad-minded). If this is untrue, let the police and the investigators who deal with electric-wiring theft rebut me. ...\u201d (page 315)","\u201c... Throughout all those years, when Gypsy bandits stole, cut away tonnes of electric wiring (which in civilised countries is a terrorist act) and left whole regions without electricity, causing millions of levs in damages, non-Gypsies were hanging themselves from the ceiling out of despair ...\u201d (page 332)","\u201c... The brazenness of this demonstrable Gypsy banditry comes from statements such as that of [T.T.], the leader of the Roma Association, to the newspaper Trud on14 August 2001: \u2018Bulgaria will become Kosovo\u2019. The prophecy (or threat) of the Roma leader is evidently turning into reality. In the absence of State authority in Bulgaria, the next stage is terrorist acts and murders of non-Gypsies. \u2018What are we to do?\u2019 asks the police chief in Plovdiv hopelessly. Our advice is, first tender your resignation. And until then let someone who knows how to deal with terrorists and street vandals take over your post. ... \u201d (page 333)","12.When hearing the case on 21 November 2006, the Sofia District Court listened to audio recordings of Mr Siderov\u2019s statements presented by the applicants. The minutes of the hearing, drawn up by the court\u2019s clerk, did not include certain passages of dialogue (see footnotes 2, 3 and 4 above). On 8 December 2006 the applicants asked the court to rectify the minutes so that those passages were included in them. On 16 April 2007 the court heard its clerk in the presence of counsel for the applicants. The clerk stated that she had noted down everything that she had been asked to, and that she had no clear recollection of hearing the passages of dialogue whose inclusion was being requested. In view of those explanations, and noting that the request for correction of the minutes had been made belatedly, the court refused to make the requested changes to the minutes.","13.On 15 October 2008 the Sofia District Court dismissed the applicants\u2019 claim. It began by noting that the case turned on whether MrSiderov\u2019s statements had constituted a proper exercise of his right to express an opinion, as guaranteed by Article 39 \u00a7 1 of the Constitution (see paragraph 20 below), or whether they had amounted to an exercise of that right with a view to fomenting ethnic strife. The court went on to say that the assertion that the impugned statements had constituted harassment or incitement to discrimination were not supported by the facts. The statements, though revealing a negative attitude towards Roma as a group, had not been aimed at placing them at a disadvantage vis-\u00e0-vis other ethnic groups, but rather the opposite, as they had contained appeals that Roma be treated on an equal footing with other Bulgarian citizens. It was true that the statements, which had touched upon the integration of Roma, had been phrased in a manner that had not struck the correct tone and had not reflected the need for tolerance when discussing issues of public importance. But that was not in itself indicative of incitement to discrimination, since that turned on a statement\u2019s content rather than its form or wording. Mr Siderov had, whether justifiably or not, sought to focus the public\u2019s attention on \u201cthe fact that certain ethnic minority groups commit[ted] offences against the person, which went unpunished, and [did] not fulfil their obligations, as was expected of all Bulgarian citizens \u2013 namely not to disrupt public order and to pay their dues to the State and the various utility companies\u201d. Calls for the investigation and punishment of offences committed by members of one or other ethnic group, and for them to abide by the laws, did not amount to discrimination, but were rather directed towards the equal treatment of the members of the various ethnic groups. To accept that ethnicity might be grounds to treat an individual or a group differently and to exonerate them from criminal or civil liability would be tantamount to legitimising discrimination against people with a different ethnic self-consciousness, which was proscribed by the Constitution and the 2003 Act. Mr Siderov\u2019s public manifestation of his negative views about the conduct of the Roma community did not in itself amount to discrimination, since his statements had not been aimed atplacing that community in a less favourable position; rather, he had calledfor \u2013 as was indeed required by law \u2013 equal treatment for all (see\u0440\u0435\u0448.\u043e\u044215.10.2008 \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 2858\/2006 \u0433., \u0421\u0420\u0421).","14.The applicants and the four other claimants in the case lodged an appeal with Sofia City Court, arguing that the first-instance court\u2019s findings had been formalistic and contrary to common sense. They argued that when a politician publicly spoke about an ethnic group in such crude terms, he in effect instilled fear and hatred towards it. It was not necessary for him directly to call for violence or discrimination against it. By holding otherwise, the court had erred in the application of the 2003 Act. Moreover, by referring to Mr Siderov\u2019s assertions as \u201cfact\u201d, it had itself displayed racial bias.","15.On 21 June 2010 the Sofia City Court upheld the lower court\u2019s judgment. It held that the available evidence did not permit it to conclude that the impugned statements, as detailed in the statement of claim, had subjected the applicants to treatment different to that accorded to the rest of the population, or had constituted harassment or incitement to discrimination. In his newspaper articles, the public statements made by him over a considerable period of time (including his interview for Darik Radio), and his speech in Parliament in 2005, Mr Siderov had not directly or wilfully encouraged discrimination against those of Roma ethnicity. In particular, his remark in his book, Bulgarophobia, that the inhabitants of a Roma neighbourhood in the town of Plovdiv owed six million Bulgarian levs to the electricity company and that no steps were being taken to collect that debt could not be categorised as harassment (see \u0440\u0435\u0448. \u2116 2935 \u043e\u044221.06.2010 \u0433. \u043f\u043e \u0432. \u0433\u0440. \u0434. \u2116 2703\/2010 \u0433., \u0421\u0413\u0421).","16.The applicants and the four other claimants in the case appealed on points of law. They argued that the Sofia City Court had failed to give cogent reasons for its judgment or to properly analyse Mr Siderov\u2019s statements in the light of the definitions of harassment and incitement to discrimination given by the 2003 Act. They again emphasised that MrSiderov was a well-known politician who had actively sought to vilify a whole ethnic group.","17.On 8 August 2012 the Supreme Court of Cassation declined to accept the appeal for examination. It held that there was no indication that there was inconsistent case-law regarding the points at issue in the case, or that it threw up special issues relating to the correct application of the law or its development (see \u043e\u043f\u0440. \u2116 972 \u043e\u0442 08.08.2012 \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 1672\/2011 \u0433., \u0412\u041a\u0421, IV \u0433. \u043e.)."],"200":["2.The applicants were born in 1972 and 1968 respectively and live in Plovdiv. They were represented initially by Ms M. Ilieva and then by MsA.Kachaunova, both lawyers practising in Sofia and at the material time working with the Bulgarian Helsinki Committee.[1]","3.The Government were represented by their Agent, MsI.Stancheva\u2011Chinova of the Ministry of Justice.","4.Ataka is a Bulgarian political party founded in April 2005. In parliamentary elections held on 25 June that year it received 8.14% of the votes cast and won twenty-one seats in Bulgaria\u2019s two-hundred-and-forty-seat Parliament. In parliamentary elections held in 2009 it received 9.36% of the votes cast and again won twenty-one seats. In parliamentary elections held in 2013 it received 7.30% of the votes cast and won twenty-three seats. In parliamentary elections held in 2014 it received 4.52% of the votes cast and won eleven seats. It fought the March 2017 parliamentary elections as part of a three-party coalition, United Patriots, which gained 9.31% of the votes cast, and won eight of the coalition\u2019s twenty-seven seats. In May 2017 United Patriots entered into a coalition with GERB, the political party then holding the biggest number of parliamentary seats, and formed a joint government with it; United Patriots received three ministerial positions, one of which was allocated to Ataka. At the elections for European Parliament in May 2019 Ataka received 1.07% of the votes cast and did not win any seats. Ataka has its own television channel, which apparently regularly broadcasts a programme attacking ethnic minorities and foreigners (see paragraph 41 in fine below).","5.The party\u2019s leader, Mr Volen Siderov, has been an Ataka Member of Parliament since 2005. Before that, he worked as a journalist: in the early 1990s he was editor-in-chief of the daily newspaper Demokratsia; then, in the early 2000s, he was a columnist for the daily newspaper Monitor; and later he served as the presenter of a daily television programme Ataka, aired by the television station SKAT. In September 2006 he stood as a candidate in that month\u2019s presidential election. He came second in the first round of voting, receiving 21.5% of the votes cast, and in the run-off lost against the incumbent, Mr Georgi Parvanov, by 24.05% to 75.95%. In February 2011 Mr Siderov again announced his candidacy in the upcoming presidential election. In the first round of voting, which took place on 23 October 2011, he received 3.64% of the votes cast. Following the 2017 parliamentary elections (see paragraph 4 above), Mr Siderov became chairman of the United Patriots parliamentary grouping, but in July 2019 was removed from that position and was excluded from the parliamentary group along with two other Ataka members of parliament. Ataka nevertheless kept the ministerial position that it had in the coalition government (see paragraph 4 above).","6.The applicants described Ataka as a \u201cxenophobic party\u201d and said that in his career as a journalist and politician Mr Siderov had systematically engaged in extreme anti-minority propaganda, by way of his books, his articles in Monitor, and then his television programme, which in effect he had made his political platform.","7.Further information about Ataka\u2019s activities and political positions can be found in Karaahmed v. Bulgaria (no. 30587\/13, \u00a7\u00a7 7-27, 24February 2015).","8.In January 2006 the applicants and sixteen other people, as well as sixty-six non-governmental organisations, brought proceedings against MrSiderov under section 5 of the 2003 Protection from Discrimination Act (\u201cthe 2003 Act\u201d \u2013 see paragraph 27 below). They alleged that a number of public statements made by him had constituted harassment of, and an incitement to discrimination against, Roma, Turks, Jews, Catholics and sexual minorities. The applicants argued, inter alia, that each of them \u2013 as a member of a minority \u2013 had been personally affected by those statements; they also based their claim against Mr Siderov on Article 32 \u00a7 1 of the Constitution (see paragraph 24 below), noting that it afforded protection against infringements of one\u2019s dignity.","9.The Sofia District Court split the case into eight separate cases on the basis of the specific type of discrimination alleged by each group of claimants. The case of the two applicants, both of whom are of Jewish ethnic origin, concerned chiefly Mr Siderov\u2019s statements in relation to Jews and the Holocaust.","10.In their claim, the applicants asserted that a number of passages in two books written by Mr Siderov had amounted to harassment and incitement to discrimination on the basis of Jewish ethnicity or religion. The applicants sought court orders against Mr Siderov to stop making such statements and to restore the status quo ante by publicly apologising for his statements.","11.The applicants referred in particular to the following passages in a book by Mr Siderov entitled The Power of Mammon, which was published in Sofia in 2004:","\u201c... until [the time of] Christ, Judaism was a permanent renouncement of God in favour of Mammon ...\u201d (page 28)","\u201c[Judaism] ... is an elitist, xenophobic, racist and theomachist philosophy\u201d (page 42)","\u201cThe demagoguery of authors who gloss over the secular robbery of Christians by the Jews as a trifle is astounding. ... [E]verywhere on the European continent Jews got under the skin of rulers, pushed them towards wars and cataclysms, so that they would fall in an acute need of money ...\u201d (page 58)","\u201c... The genocide against the Russian, Bulgarian and other Orthodox peoples was carried out under direct commands from Talmudic western circles, headed by the Rothschild family. This genocide comprised not only direct extermination through wars, \u2018revolutions\u2019 and terrorism (which has been a trademark of Judaism for centuries). This genocide was carried out also by way of the calculated and consistent looting of the money and resources of the Christian peoples ...\u201d (page 135)","\u201c... The Talmudic worldview is: enslavement ...\u201d (page 143)","\u201c... Elitism is the basis of the Judaic, Talmudic worldview. It comprises the notion that to rob the \u2018other\u2019 \u2013 the non-Jew \u2013 is a feat rather than a sin. That to ruin him is a good deed rather than a sin. ...\u201d (page 147)","\u201c... Tsarism and the Orthodox religion were loathed by the Jewish banking oligarchy in London and New York, and it gave sufficient money to enable the liquidation of its main enemies \u2013 the Christian Church and the monarchy of a Byzantine type. To liquidate the State of the Spirit, so that the kingdom of Mammon could triumph. ...\u201d (page 156)","12.The applicants also referred to the following passages in the second edition of another book by Mr Siderov entitled The Boomerang of Evil, published in Sofia in 2002:","\u201c... \u2018Shoot the louses on the spot!\u2019 was Ulyanov\u2019s order to the war commissar Leo Bronstein-Trotsky. And the Russian Jew-mason, a member of the Grand Orient lodge, carried out the order with sadistic contentment. ...\u201d (page 72)","\u201c... Who is that? Who will rejoice in the deaths of millions of Christians? While using as an instrument supposed other \u2018Christians\u2019 \u2013 pawns from the same countries in which the action is taking place? Those who reckon [\u0441\u043c\u044f\u0442\u0430\u0442] that they have been chosen to rule the world. Who a long time ago renounced God and [now] bow to his enemy. Who have created the most perfectly chauvinistic and racist doctrine in the world \u2013 Judaism. Those are the sons of \u2018Israel\u2019 \u2013 the one who wrestles with God, in the Bulgarian translation. ...\u201d (page 75)","\u201c... The [number of the] victims of the Jewish-Bolshevik terror are reckoned to [amount to] more than 100 million over the whole period of Soviet rule. ...\u201d (page 93)","\u201c... Why is it that today no one speaks of the genocide carried out by a Jewish establishment over sixty-six million Russians over the seventy years of communism? ... In 1918 the Soviet Government consisted of twenty-two people, eighteen of whom were Jews, one a Georgian, one an Armenian, and two Russian. The decision to decimate the Russian people was taken by non-Russians. ...\u201d (page 113)","\u201c... Enslaving other peoples has for centuries been the supreme goal of the Jewish world elite. ...\u201d (page 156)","\u201c... The lies about the \u2018gas chambers\u2019 that exterminated millions of Jews are also supported by the data of British intelligence. ...\u201d (page 169)","\u201c... By using the legend of the \u2018Holocaust\u2019 the Jews reaped enormous advantages from the world. ... The \u2018Holocaust\u2019 lie is also very lucrative. According to Der Spiegel (issue 18 of 1992), since 1952 the Federal Republic of Germany has paid out to Jewish Zionist organisations a total of 85.4 billion German marks! ...\u201d (page 170)","\u201c... The most powerful brainwashing instrument \u2013 television \u2013 is a monopoly of three men \u2013 the Jews Isner, Levin and Rotstein. CNN long ago ceased to be owned by Ted Turner; it is owned by Levin. ...\u201d (page 205)","13.The applicants furthermore referred to the following passage from the first edition of the same book, also published in 2002 in Sofia:","\u201c... It is then that there emerged the germ of the great hoax called the \u2018Holocaust\u2019 \u2013 the version [of history according to which] 6,000,000 Jews were gassed and burned in the ovens of Hitler\u2019s concentration camps. ...\u201d (page 169)","14.Lastly, the applicants referred to the following passages from two public speeches made by Mr Siderov:","Speech at a pre-election rally of Ataka in Burgas on 22 June 2005","\u201c... No to the Gypsification of Bulgaria. No to the Turkification of Bulgaria. ...","At long last Bulgarians will have their own representation in Parliament. It will not only be full of pederasts, Gypsies, Turks, aliens, Jews and all manner of others, but will consist only and exclusively of Bulgarians! Who will defend the honour, dignity and interests of the Bulgarian. ...","... We shall say that Bulgaria will not permit itself ... to become a Turkish province. It will not permit itself to become a Gypsy State. It will not permit itself to become a Jewish colony. Or any other [kind of] colony. ...\u201d","Speech at the first session of the newly elected Parliament on 11 July 2005","\u201c... This is what I had to say: Bulgaria above all \u2013 Bulgaria for Bulgarians!\u201d","15.On 10 February 2009 the Sofia District Court dismissed the applicants\u2019 claim. It held that it had not been demonstrated that by making the impugned statements (whose authorship he did not contest), Mr Siderov had sought to impinge on their dignity or honour or to create an intimidating, hostile or offensive environment. Nor had it been shown that he had wilfully encouraged, given instructions or coaxed anyone to carry out discrimination, since it had not been proved that his statements had been capable of influencing negatively the people before whom he had spoken. It was true that in his speech before the newly elected Parliament he had uttered the words \u201cBulgaria above all \u2013 Bulgaria for Bulgarians!\u201d But the applicants were also Bulgarian citizens, irrespective of their ethnic identity. It had not been categorically proved that Mr Siderov had not just been exercising his freedom to express his opinion, in writing and orally, rather than inciting discrimination. Nor had it been shown that his statements had caused any of their recipients to treat the applicants less favourably than others owing to their ethnicity. The constituent elements of harassment or incitement to discrimination were therefore not in place (see \u0440\u0435\u0448.\u043e\u044210.02.2009 \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 2855\/2006 \u0433., \u0421\u0420\u0421).","16.The applicants and the other claimant in the case lodged an appeal with Sofia City Court, arguing that the first-instance court\u2019s findings did not reflect reality and were arbitrary. The court had in effect turned a blind eye to the intent behind Mr Siderov\u2019s extreme anti-Semitic statements. That was all the more glaring given the fact that he was a politician notorious for his anti-minority agitation. The finding that his statements could not sway public opinion was likewise inadequate. If the leader of a political party who had come second in the presidential election could not do so, through his books, public speeches and speeches in Parliament, then no one ever could. The court had also erred by holding that harassment required both intent and result; in fact, it was necessary for only one to apply. Norwasittrue that \u201cincitement\u201d presupposed specific results. It could not beaccepted that Mr Siderov had legitimately exercised his right to freedomofexpression. Under European Union law and the Strasbourg Court\u2019s case-law, racist and anti-Semitic speech and Holocaust denial were not protected forms of expression.","17.On 20 December 2010 the Sofia City Court upheld the lower court\u2019s judgment. It held that in assessing whether the impugned statements had been in breach of the 2003 Act it had to bear in mind that each of the parties was relying on fundamental rights guaranteed by the Constitution and international agreements \u2013 namely, on the one hand, the right to honour and dignity, and, on the other, the right to express an opinion. The court reviewed in some detail the case-law of the Constitutional Court regarding the balance to be observed between those rights, and noted that the Strasbourg Court\u2019s case-law under Article 10 of the Convention differentiated between the defence of unpopular and offensive ideas and calls to hatred or violence.","18.The court went on to say that there was no evidence that Mr Siderov had sought to infringe the applicants\u2019 honour or dignity owing to their ethnic identity. Rather, his statements had expressed his beliefs about topics that were in his view of social importance, and had not been intended to stir up hatred, violence or tension. It was true that his statements had contained negative assessments that could shock or offend. But that was not sufficient to limit his freedom of expression by deeming his statements to be unlawful and to constitute an incitement to harassment or discrimination.","19.The court furthermore held that only statements directed against a well\u2011defined group of people or a specific person could be regarded as expression to the detriment of the rights of others. That was not the case with the impugned statements. They had not targeted anyone in particular \u2013 still less the applicants. Rather, they had been directed at the public at large (and had been made in such a way as to reach its attention), and had presented Mr Siderov\u2019s views on political, historical, religious and ethnic issues. It had not been proved that he had meant to infringe the applicants\u2019 dignity or honour or to create an intimidating, hostile or offensive environment. Nor had it been shown that he had wilfully encouraged, given instructions to or coaxed anyone to carry out discrimination. That also applied to the statements contained in his books. There was no evidence that any of his public speeches \u2013 in particular that at the rally in Burgas \u2013 had caused those listening to those speeches to treat the applicants less favourably owing to their ethnicity. As for his statement in Parliament, it could not have affected the applicants, as they were also Bulgarian citizens, irrespective of their ethnic identity. It could not be seen as a call for unequal treatment, since all ethnic groups in Bulgaria were Bulgarian nationals.","20.The Sofia City Court thus agreed with the first-instance court that the constituent elements of harassment or incitement to discrimination were not present (see \u0440\u0435\u0448. \u2116 2935 \u043e\u0442 20.12.2010 \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 80\/2010 \u0433., \u0421\u0413\u0421).","21.The applicants and the other claimant in the case appealed on points of law. Among other arguments, they again pointed out that according to the Strasbourg Court\u2019s case-law, hate speech and Holocaust denial were not protected forms of expression, and that in his capacity as a politician MrSiderov could really influence public opinion.","22.On 15 November 2012 the Supreme Court of Cassation declined to accept the appeal for examination. It noted that the concepts of harassment and incitement to discrimination had been comprehensively defined in the 2003 Act. The meaning of the relevant provisions was clear, and the applicants had not referred to any inconsistent case-law regarding the matter. Its own case-law under sections 4 and 5 of the Act was settled and did not need to be reappraised in the light of any fresh developments (see \u043e\u043f\u0440. \u2116 1215 \u043e\u0442 15.11.2012 \u0433. \u043f\u043e \u0433\u0440. \u0434. \u2116 533\/2012 \u0433., \u0412\u041a\u0421, IV \u0433. \u043e.)."],"201":["1. The applicant, Ms Mariana Rarinca, is a Romanian national who was born in 1959 and lives in Gala\u021bi. She was represented before the Court by Mr C.L. Popescu, a lawyer practising in Bucharest.","The circumstances of the case","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","Criminal proceedings against the applicant","3. On 4 June 2014 L.D.S. \u2013 a judge and the President of the High Court of Cassation and Justice (\u201cthe Court of Cassation\u201d) \u2013 brought criminal proceedings against the applicant for blackmail. L.D.S. never joined the proceedings as a civil party.","4. On 10 June 2014 the Bucharest County Court (\u201cthe County Court\u201d), sitting as single-member bench composed of a liberties and detentions judge, allowed an application lodged by the National Anti-Corruption Department ( Direc\u021bia Na\u021bional\u0103 Anticorup\u021bie \u2013 \u201cthe DNA\u201d) for the applicant to be detained pending trial on the grounds that the available evidence indicated that there was a reasonable suspicion that the applicant had blackmailed Judge L.D.S. After an appeal by the applicant, the Bucharest Court of Appeal (\u201cthe Court of Appeal\u201d), sitting as a single-member bench composed of a liberties and detentions judge (namely, A.P.M.), upheld the County Court \u2019 s decision on 17 June 2014.","5. On 30 June 2014 the DNA indicted the applicant for blackmail and sent her case to trial. The lawfulness of the DNA \u2019 s indictment and of the evidence available in the case-file were confirmed by a final interlocutory judgment delivered by a pre-trial judge on 4 August 2014.","6. On 26 August 2014 the County Court, sitting as a single-member bench composed of a pre-trial judge, reviewed the lawfulness of the applicant \u2019 s detention and maintained the measure. On 5 September 2014, after an appeal by the applicant, the Court of Appeal, sitting as a single-member bench composed of a pre-trial judge (namely, C.C.D.), upheld the County Court \u2019 s decision on the grounds that the available evidence indicated that there was a reasonable suspicion that the applicant had committed the offence.","First-instance court \u2019 s judgment","7. On 18 December 2014 the County Court convicted the applicant of blackmailing Judge L.D.S. and imposed on her a suspended prison sentence of three years.","8. Citing documentary and testimonial evidence, the court held that from August 2013 until June 2014 the applicant had threatened Judge L.D.S. that she would leak to the press compromising (but fabricated) information concerning her and her husband unless Judge L.D.S. paid the applicant 20,000 euros (EUR).","The parties \u2019 appeal against the first-instance judgment","9. The applicant and the DNA appealed against the judgment.","10. The applicant argued, inter alia, that she had expressly stated in a text message that she had sent to an undercover agent brought in to work on the case by the DNA that she had never asked Judge L.D.S. for EUR 20,000. Her messages had been aimed only at persuading Judge L.D.S. to pay back money that she owed her. The DNA had been biased against her and had not been interested in establishing the truth.","The second-instance court \u2019 s judgment","11. By a judgment delivered on 20 May 2015, which was not amenable to an appeal in ordinary proceedings, the Court of Appeal, sitting as a bench composed of two judges (namely, R.G. and D.M.), allowed the applicant \u2019 s appeal, quashed the judgment of 18 December 2014, and acquitted the applicant.","12. The court held that Judge L.D.S. had never disclosed to the authorities the compromising acts that the applicant had threatened to disclose. Moreover, given Judge L.D.S. \u2019 s statements and the testimony given by the applicant \u2019 s partner, the text messages sent by the applicant in which she had asked Judge L.D.S. to repay the above-mentioned debt could not have alarmed Judge L.D.S. or affected her psychological well-being. Those elements had been essential for the offence of blackmail to exist. The messages sent by the applicant to the undercover agent had not constituted a material element of the offence, as they had simply been sent in reply to messages sent by the agent.","13. The court furthermore held that the investigation against the applicant had breached Articles 6 and 8 of the Convention and that the DNA \u2019 s acts and measures had been unlawful. Even though a pre \u2011 trial judge had confirmed the lawfulness of the evidence obtained by the undercover agent, the judges currently examining the case, as defenders of individual freedoms recognised across Europe, had to penalise the DNA \u2019 s breach of Article 6 of the Convention. In addition, some of the steps taken by the DNA in the bill of indictment had been unlawful; it had investigated the case too speedily and without collecting evidence either supporting or against the applicant; and it had relied without any reason on the existence of imaginary compromising acts involving Judge L.D.S., in spite of the applicant \u2019 s assertions that she had not tried to blackmail L.D.S.","14. The first-instance court had failed in its duty to examine the evidence and the applicant \u2019 s defence. The evidence had suggested that the applicant and Judge L.D.S. had had an agreement that the applicant would perform various services for her. Therefore, the applicant \u2019 s messages to Judge L.D.S. had been aimed at recovering money that belonged to her.","The DNA \u2019 s appeal for annulmentThe DNA \u2019 s arguments","The DNA \u2019 s arguments","The DNA \u2019 s arguments","15. On 29 May 2015, the DNA lodged an application for leave to lodge an extraordinary appeal for annulment by which it sought to have the judgment of 20 May 2015 quashed on the grounds of the lack of impartiality of one of the members of the bench (R.G.). The DNA argued that Judge R.G. \u2019 s conduct and decisions during the proceedings, viewed within the context of her opinion regarding what constituted a judicial error \u2013 which she had expressed during a job interview that she had had on 16 May 2013 (\u201cthe 2013 conversation\u201d) with Judge L.D.S. (then serving as a member of an examination committee assessing judges \u2019 applications for promotion to the Court of Cassation) \u2013 had proved her lack of impartiality in respect of the case and the fact that she had already formed her opinion regarding what the outcome of the case should be.","16. On 17 August 2015 the DNA submitted an additional argument for quashing the judgment of 20 May 2015 which concerned the reasoning of that judgment.","17. They contended that the reasoning given for the judgment, which had been drafted by Judge R.G., had amounted to a reassessment of the lawfulness of the available evidence, even though that question had already been examined and decided by a final pre \u2011 trial judge interlocutory judgment. The judgment had amounted to the indictment of the investigating prosecutors and of Judge L.D.S. and had referred exclusively to Judge L.D.S. \u2019 s statements, even though the court had had the obligation to take into account all the available evidence. Even though Judge R.G. could have clarified any doubts that she might have had in respect of the case by asking for further evidence to be added to the case file, she had failed to do so.","18. The Court \u2019 s case-law referred to by the DNA in its application for leave to lodge an appeal for annulment had been cited in order to illustrate the Court \u2019 s definition of an impartial tribunal and the relevant tests that had to be applied in that regard.","The applicant \u2019 s arguments","19. The applicant lodged a challenge against the appeal for annulment. She argued that an appeal for annulment could not be used to convict an acquitted person. The DNA or Judge L.D.S. could \u2013 during the proceedings that ended in the judgment of 20 May 2015 (see paragraph 15 above) \u2013 have contested the manner in which Judge R.G. had conducted the proceedings and could have challenged that judge because of the opinions that she had expressed during the 2013 conversation. Therefore, the DNA and L.D.S. could no longer cite R.G. \u2019 s alleged lack of impartiality when lodging an extraordinary appeal for annulment. Moreover, Article 6 of the Convention had been inapplicable in respect of the case, given that Judge L.D.S. had not joined the proceedings as a civil party.","20. The applicant furthermore argued that the decision and interlocutory judgment of 23 July 2015 (see paragraphs 23 - 25 below) had been unlawful; accordingly she requested that they be declared null and void.","Preliminary steps taken by the court","21. On 24 and 26 June 2015 the Court of Appeal, sitting as a bench composed of two judges (namely, M.N. and C.C.C.), held the first two hearings in the case concerning the DNA \u2019 s application to lodge an appeal for annulment. It held that the case could not be examined because the case file had been transferred to the Judicial Investigation Unit ( Inspec\u021bia Judiciar\u0103 ) attached to the Superior Council of the Judiciary ( Consiliul Superior al Magistraturii ). It requested the Judicial Investigation Unit to return the case file urgently to the court and adjourned the proceedings until, respectively, 26 June and 2 September 2015.","22. On 1 July 2015 the Judicial Investigation Unit returned the case file to the Court of Appeal.","23. On 23 July 2015 the DNA lodged an application with the Court of Appeal for the date of the hearing of the case to be changed from 2 September 2015 to an earlier date. It argued that an adjournment of two months was excessive, given the object of the case. The DNA justified its application by referring to the intense media scrutiny of the case and argued that such a case needed to be examined expeditiously. Citing a need to keep proceedings as short as possible, the DNA also invoked a Constitutional Court (\u201cthe CC\u201d) judgment of 14 July 2015 declaring unconstitutional the rules allowing the examination of the admissibility of an appeal for annulment without all the parties being summoned.","24. On the same date, the Court of Appeal, sitting as a single-member bench composed of Judge G.D.M., allowed the DNA \u2019 s application and ruled that the admissibility of the appeal for annulment had to be examined immediately.","25. By an interlocutory judgment delivered on the same date, the Court of Appeal, sitting as a bench of two judges (namely, G.D.M. and B.C.T.I.), declared \u2013 without the applicant and Judge L.D.S. having been summoned \u2013 the appeal for annulment admissible and scheduled the examination of the merits of the appeal for annulment for 17 August 2015. It held that the appeal for annulment had met all the formal admissibility conditions.","26. On 4 and 8 August 2015 Judge R.G. lodged applications with the Court of Appeal, seeking to be allowed to intervene in the proceedings on her own behalf; she also asked Judge G.D.M. to withdraw from the case. In her submissions she stated that in early July G.D.M. had told her that he would allow the appeal for annulment because Article 6 of the Convention was applicable to the case.","27. On 13 August 2015 Judge G.D.M., as president of the bench, called to examine the merits of the appeal for annulment, determined the nominal composition of that bench. According to the report on his decision-making process in that regard he decided that the bench scheduled to examine the merits of the appeal for annulment on 17 August 2015 would include Judge A.T. He furthermore stated that he had been the only member of the Court of Appeal bench that had delivered the interlocutory judgment of 23 July 2015 (see paragraph 25 above) still to be working on 17 August 2015, as Judge B.C.T.I. (one of the judges on duty on 23 July 2015) had been on leave. According to a decision dated 27 May 2015 taken by the Court of Appeal \u2019 s Management Board (\u201cthe CAMB\u201d) concerning the duty roster of judges for the summer holiday period, Judge A.T. had been the judge on duty on 17 August 2015.","The applicant \u2019 s challenge against the members of the bench examining the merits of the DNA \u2019 s appeal for annulment","28. On 17 August 2015 the applicant lodged a challenge against Judges G.D.M. and A.T. on the grounds of their alleged bias and requested their removal. She cited the allegedly unlawful manner in which Judge G.D.M. had taken over the case file on 23 July 2015 and the fact that he had ignored the effects of the unpublished CC judgment of 14 July 2015. In addition, he had scheduled the examination of the merits of the appeal for annulment for a day on which (as he had known full well) A.T. would be the second judge on the bench. Moreover, there had been hostility between the applicant and the judges of the bench because of Judge G.D.M. \u2019 s aforementioned actions and the complaints that the applicant had lodged with the relevant authorities in that regard.","29. On the same date the Court of Appeal, sitting as a bench of two judges (namely, G.D.M. and A.T.), decided that the challenge against Judge G.D.M. was admissible and had to be examined on the merits. As to the applicant \u2019 s challenge concerning Judge A.T., the court decided, with the parties \u2019 agreement, that it should be examined after her challenge against Judge G.D.M. had been decided.","30. By an interlocutory judgment not amenable to appeal delivered on the same date, the Court of Appeal, sitting as a bench of two judges (namely, A.T. and A.B.R.), dismissed the challenge against Judge G.D.M. It held that the applicant \u2019 s arguments had concerned exclusively the administrative measures that that judge had taken in respect of the case file and the manner in which he had met some of the parties \u2019 requests. Those measures, and the manner in which those requests had been met, had fallen within the exclusive authority of the bench examining the case. The national judicial practice was unanimous that arguments concerning such aspects did not constitute grounds for a judge \u2019 s removal. To hold otherwise would mean that the parties could choose the judges examining their case by removing those they disliked on grounds that lacked substance.","31. Likewise, the applicant could not rely on hostility as grounds for her challenge. National judicial practice had consistently dismissed as non-legitimate challenges that were based on criminal or administrative complaints lodged by parties against judges because they were viewed to be foul attempts to remove judges disliked by parties from examining a case. A judge was a legal professional and was capable of preserving his or her impartiality, even when parties to proceedings had adverse opinions of him or her.","32. On the same date, the Court of Appeal, sitting as a bench of two judges (namely, G.D.M. and A.T.), dismissed as inadmissible the applicant \u2019 s challenge against A.T. It held that she had not provided reasons for her challenge, as her submissions had only concerned the actions of another judge.","The judgment on the merits of the appeal for annulment","33. By a judgment of 17 August 2015 not amenable to any form of appeal the Court of Appeal, sitting as a bench of two judges (namely G.D.M. and A.T.), allowed the appeal for annulment, quashed the judgment of 20 May 2015, and scheduled for 21 August 2015 the re-examination of the parties \u2019 appeal against the judgment of 18 December 2014. In addition, the court dismissed as inadmissible Judge R.G. \u2019 s applications to be allowed to intervene in the proceedings and removed her submissions from the case file. Also, it dismissed the applicant \u2019 s application for the decision and interlocutory judgment of 23 July 2015 (see paragraphs 23 - 25 above) to be declared unlawful.","34. The court held that the date of the hearing in the case had been lawfully changed by a member of the bench who had been on duty on the day when the request had been made (when Judges M.N. and C.C.C. had been on leave and therefore not able to exercise their professional duties). The decision in question had concerned the administration of the case file; accordingly, it had been permissible for only one member of the bench to take that decision, without the signatures of all the bench members being required. The interlocutory judgment of 23 July 2015 on the admissibility of the appeal for annulment was final.","35. The court furthermore held that it had to dismiss the applicant \u2019 s argument that the DNA and Judge L.D.S. could have raised the matter of Judge R.G. \u2019 s alleged bias during the ordinary proceedings. R.G. \u2019 s lack of impartiality had to be assessed by taking into account both the views that she had expressed during the 2013 conversation (see paragraph 15 above) and the manner in which she had presented the reasons for the judgment of 20 May 2015, which had gone beyond the acceptable limits of the personal touch that a judge could apply when giving the reasoning for a judgment.","36. The court held that the manner in which Judge R.G. had presented the reasons for the judgment of 20 May 2015 had been peculiar and somewhat out of the ordinary, given the general judicial practice. The judgment had relied mainly on the argument that the evidence gathered by the investigators had been unlawful. That conclusion had breached the principle that judicial functions should be separated, given the fact that neither of the parties had contested the pre-trial judge \u2019 s interlocutory judgment establishing the lawfulness of the evidence gathered by the investigators and of their acts and measures.","37. Judges R.G. and D.M. had realised that they were ignoring the res judicata effect of the pre-trial judge \u2019 s interlocutory judgment. However, R.G. and D.M., using a completely new judicial approach, had nevertheless deemed unlawful that part of the evidence gathered by the investigators that was unfavourable to the applicant. Referring to themselves as defenders of individual rights that were recognised across Europe, and relying abundantly on Article 6 of the Convention, they had deemed (i) some of the accusations made by the investigators against the applicant to be abusive, (ii) the text message sent by the applicant to the undercover agent to constitute evidence obtained by provocation, and (iii) the promptness of the proceedings to be unlawful.","38. Even assuming that in the interest of maintaining the fairness of the proceedings, the pre-trial judge \u2019 s decision could have been considered not to have had a res judicata effect, judges nevertheless had a duty to grant parties to proceedings an opportunity to comment on any alleged unlawfulness of the evidence presented and to ask for new evidence to be adduced to the case file. However, in the case at hand, both the applicant and Judge L.D.S. had been convinced that the pre-trial judge \u2019 s decision could no longer be contested; they had therefore failed to ask for new evidence to be added to the case file that could possibly have replaced the evidence removed by the court on the grounds of unlawfulness.","39. The court acknowledged that neither a breach of the principle that judicial functions should be separated nor a failure to grant parties to proceedings an opportunity to comment on the lawfulness of the available evidence would have amounted \u2013 viewed on their own \u2013 to grounds for allowing an appeal for annulment. However, the court had also been under an obligation to examine the parties \u2019 submissions regarding the 2013 conversation.","40. Judge R.G. had failed that job interview under circumstances whereby Judge L.D.S., as a member of the examination committee, had asked her very few questions; however, those questions had elicited answers reflecting the serious confusion that R.G. felt regarding the respective roles of fundamental legal institutions. When viewed together with the above-mentioned manner in which the reasons for the judgment of 20 May 2015 had been presented, they cast serious doubt on judge R.G. \u2019 s impartiality.","The applicant \u2019 s appeal for annulment in respect of the judgment of 17 August 2015","41. The applicant lodged an appeal for annulment in respect of the judgment of 17 August 2015.","42. On 27 August 2015 the Court of Appeal allowed an application lodged by Judge A.P.M. to withdraw from the case. As one of the members of the bench called upon to examine the case, she argued that on 17 June 2014 (see paragraph 4 above) she had upheld the decision on the applicant \u2019 s pre-trial detention and was therefore prevented by law from participating in the further examination of the case.","43. By a judgment of 2 September 2015 the Court of Appeal rejected as inadmissible the applicant \u2019 s appeal for annulment on the grounds that the judgment of 17 August 2015 was not amenable to any form of appeal.","The re-examination of the parties \u2019 appeals against the judgment of 18 December 2014 Preliminary decisions of the court","Preliminary decisions of the court","Preliminary decisions of the court","44. On 21 August 2015 the Court of Appeal (namely, Judges G.D.M. and A.T.) adjourned the re-examination of the parties \u2019 appeals until 10 September 2015 in order that the applicant could prepare her defence.","45. On 10 September 2015 the applicant challenged the above \u2011 mentioned judges for bias because they had refused a request lodged by her to have an unconstitutionality objection concerning certain Articles of the Criminal Code of Procedure referred to the CC and because she had lodged a criminal complaint against them.","46. On the same date, the Court of Appeal (namely Judges G.D.M. and A.T.) dismissed the applicant \u2019 s challenge as inadmissible on the grounds that the applicant had not provided factual or legal arguments justifying her challenge. A challenge relying on criminal complaints lodged against a bench amounted to misuse of the removal procedure; moreover, the court \u2019 s decision to reject the above-mentioned application for certain Articles of the Criminal Code of Procedure to be referred to the CC had not featured among the grounds concerning the removal of judges.","47. On the same date, the court allowed in part a request lodged by the applicant for additional evidence to be added to the case file and refused in part that request on the grounds that the evidence in question had not been relevant to the case.","The court \u2019 s judgment","48. By a judgment of 11 September 2015 not amenable to an ordinary appeal the Court of Appeal, sitting as a bench of two judges, (namely G.D.M. and A.T.), dismissed the parties \u2019 appeals against the judgment of 18 December 2014.","49. Referring to (i) the content of the conversations between the applicant, Judge L.D.S. and the undercover agent, and (ii) the available testimonial evidence, the court held that the applicant had tried to take advantage of Judge L.D.S. \u2019 s vulnerable situation in the autumn of 2013. At that time, Judge L.D.S. had been the target of an intense media campaign organised by certain media groups trying to discredit her and to diminish her chances of being re-appointed as President of the Court of Cassation.","50. As a result, in September 2013 the applicant had contacted R.S. and had told him that Judge L.D.S. had to refund her the EUR 20,000 that she had allegedly paid to unidentified former clients of Judge L.D.S. \u2019 s late husband. She had also informed R.S. that she had been contacted by television companies that had been interested in learning \u201cspicy details\u201d, that she had signed an agreement with one of them, and that she was going to disclose to that television company information about Judge L.D.S. \u2019 s late husband \u2019 s law practice.","51. The witness R.S. had not conveyed the applicant \u2019 s message to Judge L.D.S. immediately; rather, in December 2013 the applicant had sent the witness a few text messages concerning the same matter, and the witness had then decided to inform Judge L.D.S. The latter had then asked the applicant for clarifications regarding the alleged debts and, according to her own statement, she had been told by the applicant that the latter would disclose to the press compromising information about her family if she refused to pay the money.","52. Even though the applicant and Judge L.D.S. had remained in contact after December 2013, the applicant had refrained from asking Judge L.D.S. to repay the alleged debt until June 2014, when she had again begun putting pressure on Judge L.D.S. She had sent Judge L.D.S. several text messages informing her that, unless Judge L.D.S. paid her debt, she intended to send to the press information that she had been withholding. When the undercover agent brought in to work on the case had contacted the applicant via text messages, she had told the undercover agent that she would respond to her at a later date.","53. The court furthermore held that the applicant had contacted a television company using the same telephone which had been used to send the above-mentioned text messages to Judge L.D.S. and which had been found in her possession during a search of her house \u2013 and which, given the applicant \u2019 s statements, undoubtedly belonged to her. However, she had refused to explain to the court why she had called that television company.","54. None of the evidence, apart from the statements given by the applicant and her partner, suggested that Judge L.D.S. had owed her money. In any event, whether or not Judge L.D.S. had owed the applicant money was irrelevant, as long as the applicant had attempted to recover that money unlawfully. The court took the view that the content of the applicant \u2019 s messages had been threatening and that her allegations, given the relevant rules concerning judges, had been capable of triggering disciplinary proceedings against Judge L.D.S. or at the very least significantly diminishing her chances of being re-appointed President of the Court of Cassation.","55. As to the undercover agent \u2019 s actions, the court held that the agent had not provoked the applicant into committing the offence. In making contact with R.S. and Judge L.D.S., the applicant had been acting exclusively on her own initiative. The undercover agent had been used by the authorities only after Judge L.D.S. had lodged a complaint against the applicant. Given the content of the agent \u2019 s messages it was clear to any well-intentioned, reasonable observer that the agent had never attempted to compel the applicant to commit an offence, but that she had only sought to clarify the identity of the person sending the messages and the exact demands made.","56. Lastly, the court held that in her final words to the court the applicant had admitted that she had made a mistake in texting Judge L.D.S., rather than initiating court proceedings against her. Moreover, she had not known whether sending those messages had been lawful or not.","The applicant \u2019 s appeal for annulment against the judgment of 11 September 2015 The applicant \u2019 s submissions","The applicant \u2019 s submissions","The applicant \u2019 s submissions","57. The applicant lodged an appeal for annulment by which she sought to have the judgment of 11 September 2015 quashed. She argued that the bench that had delivered the judgment had not been composed lawfully and that the judges who examined her case had lacked impartiality. After having lodged the appeal for annulment she submitted further arguments on different dates.","58. Under the relevant rules, where the bench initially assigned to a case could not decide on an application concerning changes to the date of a hearing, that decision had to be taken by another randomly-assigned bench and not by the duty judge. A previous CAMB decision granting duty judges the authority to decide on such applications had been inapplicable to criminal cases; moreover, it had in any event been unlawful because \u2013 given the fact that the composition of the benches on duty had been known beforehand \u2013 it had made it possible for certain cases to be directed to a specific bench.","59. Judges M.N. and C.C.C. had been prevented from examining the case in June 2015 because of alleged administrative transfers of the case file that had either (i) not actually been requested or (ii) had taken place without having been requested in a lawful manner (that is to say without the approval of the president of the bench assigned to examine the case). Moreover, the bench that had taken the decision to bring the hearing of the case forward had been made up of only one judge, not two; furthermore that judge had been neither M.N. nor C.C.C., he had not provided any reasons for his decision, he had ignored the fact that the appeal for annulment proceedings lacked urgency, and he had tried to avoid the publishing of the CC judgment of 14 July 2015 (see paragraph 23 above), thus breaching the applicant \u2019 s right to equality of arms.","60. The applicant furthermore argued that on 23 July 2015 Judge G.D.M. had in practice chosen the composition of the bench that would examine the admissibility of the DNA \u2019 s appeal for annulment by setting the date of the hearing for the same day as that on which he was to serve as president of the bench of judges on duty. Moreover, Judge G.D.M. \u2019 s only reason for choosing 17 August 2015 as the date for the examination of the merits of the DNA \u2019 s appeal for annulment had been the names of the judges on the duty roster for that day and the possibility for him, as president, to choose the judge who would join him on the bench.","61. Judge G.D.M. had expressed his opinion on the outcome of the case even before delivering the judgment of 17 August. By allowing the DNA \u2019 s appeal for annulment, he had breached the principles of res judicata guaranteed by Article 6 of the Convention and of non bis in idem guaranteed by Article 4 of Protocol No. 7 to the Convention. The appeal for annulment had been inadmissible because it had been in fact an ordinary appeal \u201cin disguise\u201d. The DNA and Judge L.D.S. had been aware of Judge R.G. \u2019 s alleged lack of impartiality during the ordinary proceedings, but had failed to challenge that judge.","62. In addition, Judge G.D.M. had misinterpreted the discussion that Judge R.G. had had with Judge L.D.S. during the 2013 conversation because he had declined to view the full video recording of that conversation; moreover, the transcripts of the 2013 conversation submitted by the DNA had not contained key sentences of that discussion, which had taken place almost two years before R.G. had been placed in charge of examining the case and had concerned legal theory and the self-assessment that Judge R.G. had given in respect of her own strengths and weaknesses (after being asked to do so by the panel interviewing her). Judge G.D.M. had used R.G. \u2019 s bias towards L.D.S. as an argument to allow the DNA \u2019 s appeal for annulment, even though Article 6 of the Convention had not been applicable in the case. Moreover, the grounds relied on by him for allowing the appeal for annulment had been raised outside the lawfully allowed time \u2011 limit; furthermore, one of those grounds had not even been raised by the DNA, but by Judge L.D.S.","63. When examining the applicant \u2019 s appeal against the judgment of 18 December 2014, the bench presided over by Judge G.D.M. had ignored some of her written submissions and had not given her the opportunity to present them orally. In addition, on 10 September 2015 G.D.M. had wrongly dismissed her requests for additional essential evidence to be added to the case file.","64. The applicant also argued that Judges A.T. and B.C.T.I. had been biased. They had been selected by Judge G.D.M. to be members of his bench and had supported all his decisions against the applicant. Moreover, on 17 August 2015 Judge A.T. had dismissed the applicant \u2019 s above-mentioned request to have Judge G.D.M. removed.","65. Reiterating the same arguments, the applicant requested the court to declare null and void the measures taken by Judge G.D.M. on 23 July 2015, the interlocutory judgment of 17 August 2015 dismissing her application to have G.D.M. removed, and the judgment of 17 August 2015. Moreover, she asked the court to remedy all the breaches of her Convention rights, as guaranteed by Articles 6, 14, 17, and 4 of Protocol No. 7.","66. The applicant furthermore argued that the bench assigned to examine her appeal for annulment had also been composed unlawfully and that Judges C.C.D. (see paragraph 68 below) and A.P.M. had lacked impartiality.","67. On 17 June 2014 Judge A.P.M. (like Judge C.C.D. on a later date) had confirmed the applicant \u2019 s detention pending trial on the grounds that the injured party had been \u201ca model of morality, professionalism, correctness, and dignity\u201d. Therefore, the interlocutory judgment of 20 October 2015 (see paragraph 70 below) had been null and void. In addition, the CAMB \u2019 s decision of 29 September 2015 (see paragraph 68 below) had been unlawful and had to be declared null and void.","Preliminary steps concerning the applicant \u2019 s appeal for annulment","68. On 29 September 2015 the CAMB \u2013 following a request lodged by the criminal section of the Court of Appeal \u2013 decided to change the composition of some of the benches of the court in order to cover the absences of some judges who had been on study visits or on leave. It decided that in October the bench called upon to examine the applicant \u2019 s appeal for annulment was to be composed of Judges E.V.A.I. and C.C.D.","69. On 19 October 2015 the applicant initiated a challenge for bias against Judge C.C.D. She argued that on 5 September 2014 that judge had confirmed the lawfulness of her pre-trial detention. Therefore, C.C.D. had had an interest in seeing the applicant convicted because an acquittal would raise doubts about the lawfulness of the pre-trial detention. The composition of the bench had been determined by the CAMB after the applicant had lodged the appeal for annulment. Therefore, the applicant had been suspicious that Judge C.C.D. had been appointed in order to ensure that the appeal for annulment would be dismissed.","70. By an interlocutory judgment not amenable to appeal dated 20 October 2015, the Court of Appeal, sitting as a bench of two judges (namely, E.V.A.I. and A.P.M.) dismissed the applicant \u2019 s challenge. It held that according to the Court \u2019 s case-law the mere fact that a judge had examined preventive measures imposed in respect of a case before that case had been examined on the merits did not in itself raise doubts about that judge \u2019 s impartiality. The relevant rules prohibited judges from examining an appeal in respect of a case only in circumstances where they had delivered judgments on the merits of that case. The type of grounds cited to justify a preventive measure were different from those cited to justify a decision on the merits of a case; the mere fact that Judge C.C.D. had examined the applicant \u2019 s pre-trial detention had not been sufficient to raise objective doubts about her impartiality in respect of the case.","71. The court furthermore held that C.C.D. had not become a member of the bench of her own volition, but had been appointed by the CAMB. According to the relevant rules on judges \u2019 duties, she had been obliged to take part in the examination of the case and could not have refused to do so.","The court \u2019 s judgment","72. By a final judgment of 22 October 2015 the Court of Appeal, sitting as a bench of two judges (namely, E.V.A.I. and C.C.D.) rejected as inadmissible the applicant \u2019 s appeal for annulment. In addition, the court rejected as inadmissible the applicant \u2019 s objection concerning the lawfulness of the CAMB \u2019 s decision of 29 September 2015, her application seeking to have the interlocutory judgments of 20 October 2015 declared null and void, and her request for a copy of the audio recording of a hearing of 21 October 2015.","73. The court held that the CAMB \u2019 s impugned 29 September 2015 decision had concerned the nominal composition of the benches of judges in individual cases. The applicant \u2019 s objection to the aforementioned decision had sought to bypass the rules concerning the removal of judges, which she had already used in respect of Judge C.C.D.","74. The court also held that the interlocutory judgment of 20 October 2015 was not amenable to appeal. Moreover, the decisions taken on 23 July 2015 (see paragraphs 23 - 33 above) and the judgment of 17 August 2015 (see paragraph 33 above) were not amenable to an appeal for annulment. In addition, there had been no connection between the applicant \u2019 s arguments and some of the grounds for the appeal for annulment relied upon by her. Furthermore, some of the issues raised had already been settled on 10 September 2015 by an interlocutory judgment not amenable to an appeal for annulment. Also, the judgment of 20 May 2015 had not been final because the proceedings in the case had been reopened following an appeal for annulment concerning serious procedural flaws in the proceedings in question.","75. The applicant \u2019 s allegations \u2013 namely that (i) during the proceedings finalised on 11 September 2015, the court had ignored her submissions and arguments, and (ii) it had dismissed all the evidence requested by her \u2013 had not been supported by the available evidence. The applicant \u2019 s chosen lawyer had refused to present to the court all the written arguments and conclusions that had been deposited in the case file, and the court had examined and allowed in part the requests for evidence lodged by the applicant.","76. Lastly, the court held that under the relevant procedure rule, no copy of the record of the court hearing of 21 October 2015 could be given to the applicant.","Other pertinent information","77. By final judgments of 30 September, 8 October, 9 and 25 November 2015 the Court of Cassation dismissed as ill-founded appeals lodged by the applicant against the Court of Appeal \u2019 s decisions of 2, 10 and 4 September and 22 October 2015 rejecting as inadmissible the objections of unconstitutionality and the objection of non-compliance with the Convention raised by the applicant with regard to several articles of the Criminal Code of Procedure and the rules concerning changes to hearing dates. It reiterated the findings of the lower court that the applicant \u2019 s unconstitutionality objections had not met the lawful conditions for a referral to the CC.","78. By final judgments of 5 October and 2 November 2015 the Court of Cassation dismissed as ill-founded, respectively, requests lodged by the applicant on 10 September and 20 October 2015 for the case to be transferred and examined by a different court of appeal on the grounds of the alleged bias (owing to Judge L.D.S. \u2019 s position as President of the Court of Cassation) of all the Court of Appeal \u2019 s judges against her.","79. The court held that none of the acts and measures taken by the Court of Appeal judges in respect of the applicant \u2019 s case had been unlawful and that her complaints and requests concerning their actions and possible removal had been examined and dismissed lawfully. In addition, the applicant \u2019 s allegations of foul play had not been supported by the available evidence. Furthermore, accepting the argument that Judge L.D.S. \u2019 s position as President of the Court of Cassation would render all the judges of the Court of Appeal ineligible to examine her case would mean that all the judges of all the courts of appeal in the country would be rendered similarly ineligible. None of the available evidence suggested that the judges called upon to examine the applicant \u2019 s case had lacked impartiality.","80. On 30 October 2015 the applicant lodged an administrative challenge against the CAMB \u2019 s decision of 29 September 2015 (see paragraph 68 above) on the grounds that it had been unlawful. The CAMB dismissed her challenge on 3 November 2015 as ill-founded. It held that the bench \u2019 s nominal composition had been changed lawfully.","Relevant domestic law","81. Articles 64 \u00a7 4, 426, 427, 428, 429, 431, and 432 of the Criminal Code of Procedure, as in force at the relevant time, provided that a liberties and detentions judge could not participate in the same proceedings as a pre \u2011 trial judge or a judge examining the same case at first instance or at the appeal stage of the proceedings in question.","82. An appeal for annulment could be lodged against a final judgment when the composition of the court that had delivered that judgment had been composed unlawfully or had been unsuitable for the task in hand. An appeal for annulment could be lodged by any of the parties to the proceedings in question, by the injured party, or by the prosecutor. The application had to include the grounds for the appeal and the arguments supporting those grounds. It had to be lodged within ten days of the moment at which the person affected by the enforcement of the final judgment had been notified of that judgment.","83. An appeal for annulment had to be lodged with the court that had delivered the contested judgment. The court was to determine the admissibility of the appeal for annulment in chambers and without the parties being present. The court was to declare the appeal for annulment admissible and summon the interested parties in the event that it established that the appeal for annulment had been lodged within the allowed time-limit, the grounds relied on were among those provided for by Article 426, and the evidence available in the case file had been cited.","84. At the hearing scheduled for the examination of an appeal for annulment, if it was held that that appeal for annulment was well-founded (the parties and the prosecutor having been heard), the court was to quash the final judgment and proceed (either immediately or by setting a new hearing in respect of the case) to re-examine the ordinary appeal."],"202":["2.The applicant was born in 1970 and her address on the application form is given as being in the United States of America. The applicant was represented by MrA.Saccucci and Ms G. Borgna, lawyers practising in Rome.","3.The Government were represented by their then Agent, Mr A. Metani, and, subsequently, by Ms E. Mu\u00e7aj of the State Advocate\u2019s Office.","4.In 2014 an ad hoc parliamentary committee, which was to be responsible for the reform of the justice sector, was set up. It subsequently approved a report on the assessment of the justice system in Albania (\u201ctheAssessment Report\u201d).The Assessment Report referred to a number of public opinion polls and court user surveys carried out between 2009 and 2015, according to which there was widespread public perception that the justice system was plagued by corruption, undue external influence, a lack of transparent practices, excessively lengthy proceedings and non-enforcement of final court decisions. According to public opinion, some judges and prosecutors had to pay kickbacks to be appointed or transferred to vacant positions in the capital city or other major cities. Unofficial data indicated that the cycle of paying kickbacks \u2013 mainly with the involvement of a \u201cmiddleman\u201d, such as a family member, friend or lawyer \u2013 was pervasive among the main stakeholders, such as judicial police officers, prosecutors and judges. Consequently, this had hampered the delivery of justice: corrupt judicial police officers took bribes in order to destroy evidence related to the crime scene, corrupt prosecutors accepted payments to avoid instituting criminal proceedings or bringing charges, and corrupt judges delayed holding hearings or conditioned the delivery of a decision on receipt of a kickback. The low level of professionalism demonstrated by the main stakeholders of the justice system had been evident, as had the failings of the legal education system to shape citizens cognisant of their legal rights and obligations and of the importance of familiarity with and observance of the law. The Assessment Report also referred to a number of monitoring reports released by international bodies, which had pointed to varying problems affecting the justice system in Albania.","5.The Assessment Report served as the cornerstone for the production and adoption of a strategy on justice system reform (\u201cthe Reform Strategy\u201d). Some of the measures proposed in the Reform Strategy aimed at, amongst other things, (i) improving the system for the disclosure and verification of assets of judges and prosecutors and conflicts of interest in order to identify cases of appropriation of unlawful assets, (ii) introducing statutory provisions making compulsory a detailed verification of assets of judges and prosecutors and conflicts of interest prior to their taking up office, (iii) increasing transparency in the disclosure of assets of judges and prosecutors by enabling the inclusion of other stakeholders (such as the public and civil society) in providing information, facts and other data that would facilitate their verification and (iv) requiring by law the commencement of disciplinary proceedings against judges and prosecutors for failure to disclose, disclosure out of time or incomplete disclosure of assets and conflicts of interest during the exercise of their duties.","6.As a result of the proposed Reform Strategy, in 2016 the Constitution was amended and a number of essential statutes were enacted, one of which was the Re-evaluation of Judges and Prosecutors Act, otherwise referred to as the Vetting Act. For the purposes of this judgment, the terms \u201cRe-evaluation of Judges and Prosecutors Act\u201d and \u201cVetting Act\u201d are used interchangeably. Likewise, the terms \u201cvetting process\/proceedings\u201d and \u201cre-evaluation process\/proceedings\u201d are used interchangeably.","7.The vetting process to which all serving judges and prosecutors would be subject would be carried out by an Independent Qualification Commission at first instance and a Special Appeal Chamber on appeal, which would re-evaluate three criteria, namely: an evaluation of assets, an integrity background check to discover links to organised crime and an evaluation of professional competence. All persons to be vetted were required by law to file three separate declarations, as appended to the Vetting Act, in respect of each re-evaluation criterion.","8.The facts of the case, as submitted by the parties, may be summarised as follows.","9.The applicant\u2019s judicial career started in March 1995 when she was appointed to the post of judge at the Tirana District Court. In 2006, while she continued to work as a judge, she was elected a member of the High Council of Justice, the body responsible for the appointment, transfer and promotion of district and appellate court judges and the termination of their service, where she served for four years. On 25 May 2010 she was appointed, for a non-renewable nine-year term, as a judge of the Constitutional Court.","10.In accordance with the Assets Disclosure Act, the applicant filed annual declarations of assets between 2003 and 2016, as did her partner, who was a civil servant.","11.Pursuant to the Re-evaluation of Judges and Prosecutors Act, the applicant filed a declaration of assets (deklarata e pasuris\u00eb). She and her partner disclosed that they co-owned three properties: (i) a flat measuring 101sq.m which had been acquired by means of a contract for an off-plan purchase (\u201can off-plan contract\u201d) entered into on 8 March 2005 (bler\u00eb m\u00eb 8mars 2005 [me] kontrat\u00eb sip\u00ebrmarrje) and had been registered with the local immovable property registration office in December 2011 following the conclusion of a sale contract; (ii) a flat measuring 59 sq. m which had been purchased through an off-plan contract on 5 October 2010 (kontrat\u00eb sip\u00ebrmarrje dat\u00eb 5.10.2010) and (iii) a plot of land measuring 221.9sq.m. They both also gave a detailed description of the sources of their income and savings.The applicant further disclosed that she held bank accounts in the United States, which had been opened in 2015 and 2016. She also filed an integrity background declaration (deklarata p\u00ebr kontrollin e figur\u00ebs) and a professional self-appraisal form (formulari i vet\u00ebvler\u00ebsimit professional) (seealso paragraphs 133 and 134 below).","12.On 14 November 2017, owing to the fact that the applicant had been included on a priority list of persons to be vetted on account of her being a Constitutional Court judge, the Independent Qualification Commission (\u201cIQC\u201d) decided to launch an in-depth administrative investigation (hetim administrative t\u00eb thelluar) into the three declarations that she had filed.","13.On 30 November 2017 lots were drawn for the composition of the three-member panel of the IQC and the applicant was informed accordingly.","14.Between 15December 2017 and 5 March 2018 the IQC asked the applicant to reply to numerous detailed questions. She responded between 26December 2017 and 6 March 2018.","15.On 19 March 2018 the IQC, in accordance with section 47 of the Vetting Act, informed the applicant of the conclusion of the administrative investigation and provided her with the relevant preliminary findings, including the documents which had served as the basis for those findings. In particular, as regards the flat measuring 101 sq. m, the findings stated (i)that there were inconsistencies in relation to the source of income that had been used to acquire the flat, when comparing the 2005 declaration of assets and the vetting declaration of assets, and in relation to the means by which it had been created, in particular the existence of an off-plan contract concluded in 2003, and (ii) that there was a lack of supporting documents relating to the source of funds which had been used to purchase the flat. As regards the applicant\u2019s financial situation (likuiditetet), the findings stated that she had not had sufficient lawful income in 2007, 2009 and 2015 to justify the excessive amount of liquid assets. As regards a plot of land measuring 666 sq. m, which she had disclosed in the 2003 declaration of assets but had not included in the vetting declaration of assets, the findings stated that there were inconsistencies in relation to her share of that plot. Furthermore, she was asked to provide explanations in connection with a complaint made by a member of the public about her failure to recuse herself from the examination of a constitutional complaint.","16.Pursuant to section 52 of the Vetting Act and Article D \u00a7 5 of the Annex to the Constitution, the IQC shifted the burden of proof onto the applicant, who had twenty days to submit arguments in support of her defence. She was also reminded of her rights under Articles 35 to 40 and 45 to 47 of the Code of Administrative Procedure, including the right to seek access to the case file, submit additional evidence and call any witnesses.","17.On 21 March 2018 the applicant made a request for access to her file, seeking information concerning the methodology used to calculate expenses incurred on her trips abroad. The IQC responded favourably on 23, 27 and 30 March 2018. It further transpired that from 6January to 5December 2017 the auxiliary bodies which had been authorised by the Vetting Act to assist the vetting bodies in their mandate, namely the High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest (\u201cHIDAACI\u201d), the Classified Information Security Directorate (\u201cCISD\u201d) and the Inspectorate of the High Council of Justice (\u201cIHCJ\u201d), had given a favourable opinion in relation to all of the applicant\u2019s declarations.","18.On 7 April 2018 the applicant submitted lengthy arguments and evidence in support of her defence.","19.On 16 April 2018, following the applicant\u2019s submissions, the IQC asked the applicant to provide additional information so that certain factual circumstances could be determined.","20.On 17 April 2018 the IQC informed the applicant that a public hearing would be held in accordance with section 55 of the Vetting Act. She was also informed of her rights under Articles 35 to 40 of the Code of Administrative Procedure. The hearing took place on 23 April 2018. The applicant, who was represented by her own counsel, made further submissions in writing and oral pleadings.","21.On 25 April 2018 the IQC adjourned without taking a decision in the applicant\u2019s case in order to have further time to examine the additional evidence which she had submitted by email on 18 April 2018 and made available at the hearing.","22.On 4 June 2018 the IQC, having regard to the reports submitted by the public auxiliary bodies, other written evidence it had obtained in the course of the administrative investigation, the submissions made in reply by the applicant and two complaints made by members of the public, delivered its reasoned decision in the applicant\u2019s case. The operative provisions had been made public on 3 May 2018.","(a) Findings regarding the evaluation of assets","(i) As regards the flat measuring 101 sq. m","23.The IQC, having examined the evidence in the case file relating to the flat measuring 101 sq. m which belonged to the applicant and her partner, found that \u201cthere [was] a lack of legal supporting documents as required by law, false declaration and concealment of income in connection with the lawfulness of the source of income disclosed as having served as the basis for acquiring the flat (n\u00eb lidhje me ligjshm\u00ebrin\u00eb e burimit t\u00eb deklaruar t\u00eb t\u00eb ardhurave q\u00eb kan\u00eb sh\u00ebrbyer p\u00ebr blerjen e k\u00ebtij apartamenti, ka munges\u00eb dokumentacioni justifikues ligjor, deklarim t\u00eb rrem\u00eb dhe fshehje t\u00eb t\u00eb ardhurave)\u201d.","24.In drawing this conclusion, the IQC held that there was an inconsistency between the applicant\u2019s vetting declaration of assets and her partner\u2019s declaration of assets filed in 2003 and 2005 in relation to the source of income which had been used for the acquisition of the asset. The applicant\u2019s vetting declaration of assets indicated that the source of income used for the acquisition of the flat had been her partner\u2019s income from gainful employment in Italy and scholarship money he had received. However, her partner\u2019s declaration of assets filed in 2005 stated for the first time that the flat had been purchased with the proceeds of sale of another flat measuring 93sq. m, topped up by annual savings. His declaration of assets filed in 2003 stated that the flat measuring 93 sq. m had been bought with the proceeds obtained from the sale of another flat and savings from his employment in Italy. Consequently, according to the IQC, the flat measuring 101 sq. m had been bought with the proceeds secured from the earlier sale of a flat measuring 93 sq. m.","25.The IQC further referred to an off-plan contract (kontrat\u00eb sip\u00ebrmarrje) concluded before a notary public on 7 March 2005, according to which the applicant and her partner had agreed to transfer ownership of the flat measuring 93 sq. m to a third party who, in turn, had paid the sale price in full. The contract stated that both the applicant and her partner had received the sale price. It contained the following statement: \u201con 31 March 2003 the building company entered into an off-plan contract with [the applicant and her partner] in respect of a flat ... measuring 93 sq. m\u201d. Relying on this contract, the IQC concluded that both the applicant and her partner had acquired the flat measuring 93sq. m. Even though the applicant and her partner had not been living together at the material time, the IQC held that the applicant could not have been absolved from the obligation to disclose in the 2003 declaration of assets the off-plan contract to which she had been a party and on the basis of which she had acquired property rights and made a payment in respect of the flat. Whereas the transaction had been effected by means of an off-plan contract, the goal of such a transaction was the sale and purchase of real property. Therefore, the true source of funds for the acquisition of the flat measuring 101 sq. m had been the proceeds of sale of an earlier flat measuring 93 sq. m which both the applicant and her partner had bought in 2003 through an off-plan contract. The IQC held that she had been co-owner of the flat and that she had failed to disclose the flat measuring 101sq. m in any of the annual declarations of assets between 2005 and 2011(see paragraph 11 above). According to the IQC, \u201cthe[applicant\u2019s] concealment of the notarial deeds [entered into between 2003 and 2005] demonstrate[d] the failure to disclose truthfully the source [of funds used] for the creation of the asset being re-evaluated (fshehja e veprimeve noteriale nga ana e subjektit t\u00eb rivler\u00ebsimit pasqyron mosdeklarimin me v\u00ebrtet\u00ebsi t\u00eb burimit t\u00eb krijimit t\u00eb pasuris\u00eb-vetting)\u201d.","26.As regards the applicant\u2019s claim that she had contributed towards the purchase of the flat, the IQC, making an assessment of the evidence in the case file, held that the applicant had not possessed sufficient liquid assets: in 2003 her liquid assets had amounted to 783,964 Albanian leks(ALL 6,251 euros (EUR), at the current exchange rate) and in 2004 to ALL25,000 (EUR 200). Furthermore, she had been burdened with loans obtained in 2003 and 2004.","27.The IQC further rejected the applicant\u2019s claim that the flat had been purchased with her partner\u2019s income while he had been studying, working and living in Italy from 1992 to 2001. Making an assessment of the evidence in the case file, the IQC, having regard to the fact that only income subject to tax could be considered lawful, held that her partner\u2019s financial situation had been negative. Notwithstanding this, the IQC carried out another assessment on the basis of his disclosed income and reached the conclusion that his net income (ALL 206,399 \u2013 EUR 1,646) had been insufficient to purchase the flat. The IQC only took into account the earnings obtained from her partner\u2019s employment as a waiter. In the absence of any supporting documents, the IQC disregarded any earnings which would have been calculated as commission under a contract he had concluded with an Italian company. In determining the living expenses, the IQC based its estimates on information published by the Italian Institute of Statistics for the period 2002 to 2004.","28.The IQC stated that the applicant had not submitted any supporting documents to justify her partner\u2019s inability to provide documents dating from the 1990s in accordance with section 32(2) of the Vetting Act. She had not informed the IQC that, in view of the relationship her partner had had with the bank with which he had had an account in Italy, the Italian company which was still operating or the Italian National Institute of Social Security, supporting documents had gone missing, had been lost or could not be reproduced in any other way. Lastly, the IQC found that there were no documents in the case file to demonstrate that the scholarship money, which the Italian Ministry of Foreign Affairs had awarded her partner, had been transferred to his account. The IQC considered that the scholarship money, which had been awarded for a particular purpose, could not have given rise to considerable savings that could be used to buy a flat. It further held that the income which the applicant\u2019s partner claimed to have earned by working on the black market was \u201cnot a convincing source for justifying this asset\u201d (nuk jan\u00eb burime t\u00eb bindshme p\u00ebr justifikimin e k\u00ebsaj pasurie).","(ii) As regards a flat measuring 58.75 sq. m","29.The IQC found that the applicant had not possessed sufficient lawful income in 2010 (t\u00eb ardhura t\u00eb ligjshme t\u00eb mjaftueshme) to buy a flat measuring 58.75 sq. m through an off-plan contract (fituar me an\u00eb t\u00eb kontrat\u00ebs s\u00eb sip\u00ebrmarrjes).","(iii) As regards a plot of land measuring 221.9 sq. m","30.The IQC held that the applicant had benefitted from a bigger plot of land (that is, 221.9 sq. m) than her entitlement by law (that is, 128.89 sq. m) as a result of the transfer of ownership of a plot of land in 2013.","(iv) As regards the financial situation of the applicant and her partner","31.The IQC, after determining the sources of assets and liabilities of the applicant and her partner, found that the applicant had lacked lawful financial sources of income (ka munges\u00eb t\u00eb burimit t\u00eb ligjsh\u00ebm financiar) to justify her liquid assets[1] in 2007, 2009 and 2015 of a total amount of ALL1,972,969 (EUR 15,750). In determining the financial situation, the IQC had regard to the carryover cash balance of the applicant and her partner at the start of each year and their documented income. Liabilities comprised living expenses which had been determined by HIDAACI, travel expenses which had been calculated with reference to EUR180 for a low-cost airline ticket, EUR 300 for a full service carrier ticket and EUR 50 for daily expenses, mortgage repayments which had been calculated on the basis of documents furnished by commercial banks and other encumbrances.","32.In its determination of liquid assets, the IQC, relying on the supporting documents which the applicant had submitted, accepted the justification of certain income and expenses, for example income earned by her partner, certain travel expenses borne by her employer and educational expenses for her child. It also rejected certain other claims made by the applicant because of a lack of supporting documents.","33.The IQC further considered that the fact that her partner had held EUR15,000 in cash at home had been contrary to a provision of the Asset Disclosure Act, which had required him to deposit the cash in a bank account before filing the annual declaration of assets (see paragraph 202 below).","(v) As regards a mortgage of 40,000 United States dollars (USD)","34.The IQC held that the applicant had concealed the true nature of a mortgage of USD40,000 which she had obtained in 2003 and that the taking of the mortgage had been fictitious.","(vi) As regards a plot of agricultural land measuring 666 sq. m","35.The IQC found that, on the basis of the documents in the case file, the applicant had made an inaccurate disclosure (deklarim t\u00eb pasakt\u00eb) in 2003 as regards her share of a plot measuring 666 sq. m, which, according to the sale contract and property certificate, had been registered solely in the name of her mother.","(vii) As regards a flat measuring 89.16 sq. m","36.The IQC held that the applicant had made a false disclosure (deklarim t\u00eb rrem\u00eb) as regards the proceeds she had obtained, as co-owner, from the sale of a flat in 2003.","(b) Findings regarding the evaluation of other criteria","37.The IQC endorsed the positive findings of the IHCJ in relation to the applicant\u2019s ethics and professional competence.","38.The IQC further found that, following a complaint made by a member of the public under section 53 of the Vetting Act (see paragraph 148 below), the applicant had failed to disclose a conflict of interest and recuse herself from the examination of a constitutional complaint relating to the outcome of a set of civil proceedings before the lower courts in accordance with section 36(1)(c) of the Constitutional Court Act and Article 72 \u00a7 6 of the Code of Civil Procedure (see paragraphs 199 and 197 below).According to the IQC, the conflict of interest lay in the fact that the applicant\u2019s father had been the rapporteur of an appellate court bench which had examined the issue of statutory limitations in a separate set of criminal proceedings against third parties, a complaint which had been brought by the same person who had lodged the constitutional complaint with the Constitutional Court. In that set of criminal proceedings, the appellate court had decided that the prosecution was time-barred. Those third parties had also been an interested party in the constitutional proceedings.","39.As regards the applicant\u2019s conduct, the IQC considered that she had cooperated during the re-evaluation proceedings and had provided explanations, as requested. However, it considered that the documents she had provided were of a declaratory nature.","(c) Overall conclusion","40.The IQC, having regard to the findings concerning the evaluation of the applicant\u2019s assets and her failure to disclose a conflict of interest, decided by a majority to order her dismissal from office under section 61(3) and (5) of the Vetting Act (see paragraph 151 below).","(d) Dissenting opinion","41.A member of the IQC (G.T.) appended a dissenting opinion which stated that the inconsistencies in the declarations of assets as regards the flat measuring 101 sq. m (see paragraph 24 above) could not constitute sufficient evidence to warrant the applicant\u2019s dismissal from office; nor could inaccuracies in the declaration of assets be regarded as insufficient disclosure of assets. In the dissenter\u2019s view, it had been proven that the flat measuring 101sq. m had been purchased with the proceeds obtained from the sale of another flat, which, in turn, had been acquired in 2003 with the income from the applicant\u2019s partner\u2019s employment in Italy and his scholarship money. Consequently, the income had originated from her partner\u2019s funds and could not have given rise to inconsistencies in the declarations filed in different years.","42.As her partner had earned the income over twenty years earlier, it had been objectively impossible for the applicant to obtain and submit documents to verify the source thereof. The financial assessment made in respect of her partner had disregarded the income he had received in 1996, 1998 and 1999 while working on the black market in Italy. It was widely acknowledged that Albanian students in Italy or elsewhere abroad had to work on the black market to earn an income in addition to any scholarship awarded to them. Indeed, the Vetting Act favoured lawful income subject to tax. Still, the spirit of the law, read together with the Annex to the Constitution, was in favour of a person whose total assets were up to twice the amount of lawful assets (favorizon subjektet duke legjitimuar deri ne dyfishin e pasurise se ligjshme). The applicant\u2019s total assets had not exceeded twice the amount of lawful assets. The dissenter did not share the majority\u2019s view as regards the money from the scholarship; nor did the dissenter endorse the majority\u2019s findings concerning the notarial deed entered into in 2003, in so far as the IQC had not obtained any evidence to show that the applicant had contributed to the acquisition of or benefitted from the sale of that flat.","43.As regards the applicant\u2019s liquid assets in 2007, 2009 and 2010, the dissenter considered that the inaccuracies in completing the declaration of assets could not be regarded as false disclosure or a lack of lawful income. Furthermore, in the dissenter\u2019s view, the mortgage of USD40,000 had been directly paid into the building company\u2019s bank account. This fact sufficed to demonstrate that the mortgage had been obtained for the purchase of the flat, and the applicant could not be blamed for material errors in the notarial deed. On the whole, the dissenter concluded, referring to the principle of proportionality, that the applicant had amassed credible assets.","44.Lastly, the applicant had not been faced with a conflict of interest in connection with the complaint made by the member of the public in relation to her father\u2019s participation in a criminal case as a member of an appellate court bench.","45.On 19 June 2018 the applicant lodged a 42-page appeal against the IQC\u2019s decision with the Special Appeal Chamber (\u201cthe Appeal Chamber\u201d), making two strands of arguments: the first related to allegations concerning procedural or substantial breaches of the law, and the second challenged the IQC\u2019s findings. The applicant reiterated the same arguments in her further written submissions of 21 September and 15October 2018.","(a) Allegations regarding procedural and substantial breaches of the law","46.The applicant contended that she had not been given the opportunity to defend herself in respect of the IQC\u2019s ultimate findings that there had been concealment and false or inaccurate disclosure of assets by her, no such findings having been made at the conclusion of the administrative investigation.","47.The IQC had played an active role in collecting facts, evidence and information, going beyond the standard role of a tribunal which would usually give a decision upon hearing all of the parties\u2019 arguments. It had subsequently failed to secure the procedural guarantees, such as equality of arms, in the proceedings against her. It had been selective in the evidence it had used and relied upon against her and had not considered the analysis, evidence and arguments that she had submitted in response to the findings of the administrative investigation.","48.The IQC had not had any powers to interpret the previous declarations of assets that she had filed in accordance with the Asset Disclosure Act, which had been assessed positively by HIDAACI. For this reason, she argued that the IQC had retroactively applied section 31 of the Vetting Act to the 2003 declaration of assets.","49.The IQC had unreasonably shifted the burden of proof onto her for facts in respect of which she had not been obliged to submit any supporting documents. Furthermore, it had not considered the objective impossibility for the applicant to obtain all the supporting documents needed to substantiate the source of her partner\u2019s income.","50.Lastly, the IQC had not held that she had amassed more than twice the amount of her lawful assets, which would have warranted her dismissal from office in accordance with Article D \u00a7 4 of the Annex to the Constitution. In fact, her assets had been half the amount of her lawful income.","(b) Allegations regarding erroneous findings in respect of the re-evaluation criteria","51.As regards the flat measuring 101 sq. m, the applicant made three strands of arguments. Firstly, she argued that the IQC had misinterpreted the law by equating the conclusion of a legal transaction (veprim juridik) \u2013 with reference to the 2003 and 2005 off-plan contracts \u2013 to the acquisition of an \u201casset\u201d. There had been no obligation for her to disclose legal transactions, including the off-plan contracts which had not contributed to the acquisition of an asset, under the Asset Disclosure Act and the Vetting Act.","52.Secondly, the applicant\u2019s partner had carried out all the legal transactions in 2003 and 2005, the applicant not having been a party to them. He had disclosed the properties he had acquired, including the origin of income used, in the 2003 and 2005 declarations of assets, with no concealment thereof. She had disclosed their co-ownership in the 2011 declaration of assets, after her partner had decided to name her as joint owner with a 50% share of the flat in the registration of that property with the authorities. In this connection, she appended to her appeal a certificate issued by the Albanian company with which her partner had entered into an off-plan contract in 2003 and a certificate issued by her partner\u2019s former Italian employer certifying that he had worked for them from 1995 to 2001.","53.Thirdly, as regards the calculation of her partner\u2019s living expenses in Italy from 1992 to June 1995, the IQC had relied on figures corresponding to the period 2002 to 2004, when the cost of living had increased as a result of inflation caused by the replacement of the Italian lira with the euro. Furthermore, her partner had been lawfully employed from July 1995 to July 2000, as evidenced by copies of his employment contract and some salary slips. According to an empirical assessment of her partner\u2019s income and expenditure, he had saved ALL3,444,871.32 (EUR 27,586), which justified the acquisition of the flat in 2003.","54.As regards liquid assets, the IQC had not considered the fact that the expenses of certain business trips had been borne by her employer or host institutions or that the expenses of certain personal trips had been borne by host families. It had unjustly attributed all those expenses to her. Making her own assessment for 2007, 2009 and 2015, she argued that she had had sufficient income to cover all the necessary expenses.","55.As regards the complaint made by a member of the public, the applicant submitted that the member of the public had lodged a criminal complaint with the prosecutor\u2019s office against two private individuals for alleged forgery of official documents. Following the institution of criminal proceedings by the prosecutor\u2019s office, to which the member of the public had not been a party, in 2011 a Court of Appeal bench, of which her father had been a member, had decided that the prosecution of the private individuals was time-barred and had not examined the merits of the case.","56.The constitutional proceedings, which had been examined by a Constitutional Court bench, of which the applicant had been a member, had concerned a request submitted by the same member of the public about the outcome of a set of civil proceedings relating to the invalidation of a sale contract concluded between that person and a legal entity in 1999. As the constitutional proceedings had had no connection whatsoever with the criminal proceedings, she had not been faced with a conflict of interest so as to warrant the finding that she had undermined public trust in the justice system, as stipulated in section 61(5) of the Vetting Act.","57.In view of the above arguments, the applicant maintained that her dismissal from office had been disproportionate and that the proceedings before the IQC had been conducted in breach of the principles of lawfulness, fairness, impartiality, equality before the law and proportionality.","58.On 16 July 2018 lots were drawn for the composition of the five-member panel of the Appeal Chamber and the applicant was notified accordingly. She was subsequently informed that her appeal would be examined in camera on 24 October 2018.","59.On 24 October 2018 the Appeal Chamber gave its decision, examining the applicable procedure before it as well as the applicant\u2019s grounds of appeal. She was notified of the decision on 23 November 2018.","(a) Preliminary findings","60.By way of general observation, the Appeal Chamber confirmed that the proceedings before it were governed by section 65 of the Vetting Act and, amongst others, sections 47, 49 and 51 of the Administrative Courts Act (seeparagraphs 153, and 194-96 below). Pursuant to sections 47 and 49(2) of the Administrative Courts Act, the Appeal Chamber declined to admit new evidence submitted by the applicant to the case file. It reasoned that she had not put forward any reasons for her inability to submit the new evidence to the IQC. It also declined to admit further evidence submitted on 15 October 2018, in accordance with section 49(6)(a) of the Vetting Act (see paragraph 146 below). The Appeal Chamber decided not to accept additional complaints made by other members of the public following the delivery of the IQC\u2019s decision, as there were no grounds for an investigation.","61.Even though the applicant had not requested a public hearing in her appeal, the Appeal Chamber considered that it was not necessary to hold one as (i) the IQC had made an accurate and comprehensive assessment of the facts, (ii) there was no need to accept new evidence or assess new facts, (iii) the IQC had not committed any serious procedural breaches or provided an erroneous or incomplete statement of facts and (iv) there was no need to readmit the evidence which had been accepted by the IQC.","62.The Appeal Chamber clarified that the vetting bodies were empowered by sections 30, 32 and 33 of the Vetting Act as well as Article \u00c7 \u00a7 4 and Article D of the Annex to the Constitution to consider an individual\u2019s declarations of assets made since 2003 in order to verify whether the person being vetted owned more assets than he or she could lawfully possess or whether the person had made an accurate and complete disclosure of his or her assets and of assets belonging to other related persons. Since the statutory provisions had given a probative value to the annual declarations of assets, they could be regarded as having the same importance as the vetting declaration of assets. The IQC and Appeal Chamber would consider these declarations, together with other evidence, as a whole, in order to determine the circumstances of the case and make a just decision. The IQC would also examine the report drawn up by HIDAACI in order to determine its probative value and accuracy (provueshm\u00ebrin\u00eb dhe v\u00ebrtet\u00ebsin\u00eb).","63.The Appeal Chamber further clarified that upon the closure of the administrative investigation, the IQC had informed the applicant of its preliminary findings in respect of each asset and shifted the burden of proof onto her. Final findings relating to concealment or inaccurate disclosure of assets were to be made after the person being vetted had submitted arguments and evidence in his or her defence. In this connection, the person being vetted was required to convincingly demonstrate the lawful source of his or her assets and income and to not conceal or inaccurately disclose assets in his or her possession or use. The re-evaluation process was an administrative\/disciplinary procedure (never akin to a criminal process) (proccesi i rivler\u00ebsimit \u00ebsht\u00eb nj\u00eb procedur\u00eb administrative\/sanksionuese (dhe asnj\u00ebher\u00eb nj\u00eb proces penal), which aimed at affording all the guarantees relating to the right to a fair hearing.","64.In the applicant\u2019s case, the Appeal Chamber noted that the conclusion of the administrative investigation had related solely to the preliminary findings made by the IQC, in the absence of any arguments put forward by the applicant. The IQC had informed her of its findings and invited her to submit arguments and evidence to the contrary, following which it had continued the investigation. The IQC had adjourned the hearing of 25 April 2018 in order to fully examine the additional written submissions which she had submitted on the same date, as well as other supporting evidence which she had made available on 18April 2018. This course of action had guaranteed the applicant\u2019s right to a fair hearing.The IQC could not take a decision concerning concealment or false disclosure of assets during the administrative investigation, in so far as the proceedings had still been pending before it, a hearing had been due to take place and the applicant had had the right to present evidence and submissions. Had it done so, the IQC would have prejudiced the outcome of the case following the shifting of the burden of proof onto the applicant, who had been invited to submit evidence to the contrary.","65.The Appeal Chamber held that the IQC had removed the applicant from office for insufficient disclosure of assets and the fact that she, following the overall examination of the proceedings, had undermined public trust in the justice system (ka cenuar besimin e publikut te sistemi i drejt\u00ebsis\u00eb). She had not been removed from office on account of having amassed total assets of more than twice the value of her lawful assets (nuk e ka shkarkuar subjektin e rivler\u00ebsimit p\u00ebr efekt t\u00eb kalimit t\u00eb dyfishit t\u00eb pasuris\u00eb s\u00eb ligjshme). Furthermore, the fact that she had received a positive assessment of her integrity background check did not call into question the inappropriateness of the false, inaccurate and insufficient disclosure of assets she had made. Section 61(3) of the Vetting Act did not require both these criteria to be negatively evaluated, as they each constituted a separate ground for dismissal from office.","66.Lastly, it observed that the IQC had secured the applicant\u2019s right of access to the documents obtained during the administrative investigation; her case had been heard publicly within a reasonable time and by an independent and impartial tribunal. The IQC had taken its decision, after obtaining the applicant\u2019s arguments, documents and evidence. For this reason, her right to a fair hearing had been respected.","(b) Findings regarding the evaluation of assets","(i) As regards the flat measuring 101 sq. m","67.The Appeal Chamber held that, by means of the off-plan contracts, the applicant had acquired rights in rem (t\u00eb drejtat reale) to the flat which was the subject matter of the contract. Domestic law provided that the conclusion of a legal contract was a way of acquiring a property or rights in rem. The IQC had correctly concluded, following an examination of the documents in the case file, that the 2003 and 2005 off-plan contracts had concerned the transfer of rights in rem to a flat which would be constructed in the future against the payment of a price. The applicant and her partner, who had both signed the 2003 and 2005 off-plan contracts which had specified the object and price that had subsequently been paid, had acquired the rights in rem upon its conclusion. The applicant should therefore have disclosed the acquisition of this particular property at the relevant time, that is, in the 2005 declaration of assets, instead of waiting to disclose it in the 2011 declaration of assets after her partner had named her as joint owner with a 50% share of the flat.","68.Following an assessment of the documents in the case file, such as bank receipts, salary slips and payments relating to the scholarship in Italy, the Appeal Chamber observed that her partner had not convincingly demonstrated the lawfulness of his income (nuk ka provuar bindsh\u00ebm ligjshm\u00ebrin\u00eb e t\u00eb ardhurave) for the period 1992 to 2000 in order to buy the flat in 2003. The IQC had not erred in the calculation of her partner\u2019s expenses while he was a foreign student in Italy.","69.As regards the applicant\u2019s partner\u2019s income from his gainful employment in Italy during the period 1995 to 2000, the applicant had not submitted sufficient supporting documents or other evidence to justify that the income had been lawful, that is, subject to the payment of taxes, not least because her partner had worked on the black market. There was no information on how the income had been transferred to Albania, and the applicant had not been faced with an objective impossibility which could justify the destruction or loss of supporting documents proving the existence of lawful income. The applicant\u2019s statements relating to the source of income remained of a declaratory nature and could not serve as proof of lawful income (mbesin n\u00eb nivel deklarativ dhe nuk justifikohet ligjshm\u00ebria e tyre).","70.Lastly, considering the statements made by the applicant\u2019s partner and taking into account all income that he had allegedly earned during his stay in Italy, his savings could not have been sufficient to buy the flat. Nor had the applicant had sufficient financial means in 2003 to contribute to its purchase. The applicant had not advanced any arguments challenging the authenticity of the 2003 off-plan contract or the payment of the sum indicated therein.","71.The Appeal Chamber concluded that the applicant and her partner had not had sufficient funds to buy the flat measuring 101 sq. m with lawful income, as declared by them. The applicant had therefore made a false declaration and concealed the asset.","(ii) As regards the flat measuring 58.75 sq. m","72.The Appeal Chamber found that, having regard to the applicant\u2019s financial situation, as evidenced by the 2009 declaration of assets, she had had sufficient income to acquire this property.It held that the IQC\u2019s finding in respect of this asset was ill-founded.","(iii) As regards the plot measuring 221.9 sq. m","73.The Appeal Chamber held that the applicant could not be blamed for having benefitted from the regularisation of a bigger plot of land, the size of which and corresponding price had been determined by the relevant public authority in 2013, when she had in fact requested that her property rights be regularised in respect of a smaller plot of land. It found that the IQC\u2019s finding in respect of this asset was ill-founded.","(iv) As regards the financial situation","74.At the outset, the Appeal Chamber emphasised that the applicant had not challenged before the IQC or Appeal Chamber the methodology applied by the IQC for the determination of the financial situation. Nor had she submitted any arguments challenging the calculation of living expenses.","75.The Appeal Chamber upheld the IQC\u2019s decision to not accept a notarised statement which had been drawn up abroad, as the statement did not contain the elements required to be considered valid under domestic law and used in the proceedings against the applicant. As regards certain travel expenses, the Appeal Chamber held that the applicant had not submitted supporting documents to convincingly demonstrate the legitimate source used to cover the expenses. As regards other travel expenses, the Appeal Chamber held that the IQC had not considered them in the determination of the expenses borne by the applicant. As regards the cash (EUR 15,000) that her partner had not disclosed over the years, the Appeal Chamber found that he had acted in breach of his statutory obligations.","76.The Appeal Chamber carried out a reassessment of the applicant\u2019s and her partner\u2019s assets and liabilities for 2007, 2009, 2015 and 2016, the results of which differed from the IQC\u2019s findings and the applicant\u2019s submissions. It still found that the applicant had lacked lawful sources of income to justify her liquid assets of a total amount of ALL1,288,258.27 (approximately EUR 10,277, and, also compare with the IQC\u2019s finding in paragraph 31 above).","77.The Appeal Chamber further pointed to the existence of two foreign bank accounts held by the applicant and her partner in 2015 and 2016 (seeparagraph 11 above), stating that it was not apparent how the money had been deposited or transferred, there having been no disclosure of those accounts in the periodic annual declarations of assets. The applicant and her partner had therefore been unable to convincingly demonstrate how they had opened the accounts and conducted financial transactions.","78.The Appeal Chamber concluded that: \u201cthe applicant [has] not convincingly explain[ed] the lawful source of these monetary amounts; she [has] attempt[ed] to conceal and present the liquid assets inaccurately; and, she and [her partner] have not justified the lawfulness of the income for these monetary amounts (nuk shpjegon bindsh\u00ebm burimin e ligjsh\u00ebm t\u00eb k\u00ebtyre shumave monetare, p\u00ebrpiqet t\u00eb fsheh\u00eb dhe t\u00eb paraqes\u00eb n\u00eb m\u00ebnyr\u00eb t\u00eb pasakt\u00eb pasurin\u00eb n\u00eb likuiditete, si dhe ajo vet\u00eb dhe personi i lidhur me t\u00eb nuk kan\u00eb justifikuar ligjshm\u00ebrin\u00eb e t\u00eb ardhurave p\u00ebr k\u00ebto shuma monetare)\u201d.","(v) As regards the mortgage of USD 40,000","79.The Appeal Chamber found that the mortgage had been disbursed for its intended purpose, and held that the IQC\u2019s finding in this respect was ill-founded.","(vi) As regards the plot measuring 666 sq. m","80.The Appeal Chamber upheld the IQC\u2019s finding that the applicant had made an incorrect disclosure in 2003 as regards her share in the plot measuring 666 sq. m, which had belonged solely to her mother.","(vii) As regards the flat measuring 89.16 sq. m","81.The Appeal Chamber held that, as regards the flat measuring 89.16sq. m, there had been an inaccurate disclosure in the declaration submitted by the applicant (jemi p\u00ebrpara pasakt\u00ebsis\u00eb n\u00eb deklarim) instead of a false disclosure as the IQC had found.","(c) Findings regarding the evaluation of professional competence","82.The Appeal Chamber upheld the IQC\u2019s finding that, following a complaint by a member of the public, the applicant had failed to recuse herself from proceedings before the Constitutional Court. It appears from the Appeal Chamber\u2019s decision that the applicant, as a member of the Constitutional Court\u2019s bench, had examined a constitutional complaint lodged by a member of the public of unfairness in a set of civil proceedings concerning the invalidation of a sales contract entered into between the member of the public and a legal entity. The member of the public had made available to the Constitutional Court a decision given in 2011 by a bench of the Tirana Court of Appeal, of which the applicant\u2019s father had been the rapporteur, which had decided that the criminal proceedings against two individuals, who had been convicted of forgery of an administrative property decision by the first-instance court, were time-barred. Those individuals had been an interested party in the constitutional proceedings (kan\u00eb qen\u00eb persona t\u00eb interesuar n\u00eb gjykimin kushtetues).","83.While at first glance there were two separate sets of proceedings, one criminal and the other civil, the parties to the proceedings were almost the same but in different procedural positions. The subject matter of both sets of proceedings appeared to be different; however, the primary cause thereof was the privatisation of a building and the validity of the property title of a plot of land, in respect of which criminal proceedings against some individuals had been instituted and subsequently declared time-barred. The applicant had not recused herself from examining the constitutional complaint, even though a copy of the decision given by the Court of Appeal, in the composition of which the applicant\u2019s father had been the rapporteur, had been included in the Constitutional Court\u2019s case file. The applicant\u2019s failure to recuse herself from the proceedings had not ensured respect for the principle of impartiality and had given rise to doubts as regards the objective test, as a result of which public trust in the justice system had been undermined. In the Appeal Chamber\u2019s view, the applicant\u2019s recusal would not have hampered the examination of the constitutional complaint by a quorum of the Constitutional Court, as required by law.","(d) Conclusion","84.The Appeal Chamber upheld the IQC\u2019s decision as regards the applicant\u2019s dismissal from office.","(e) Separate opinion","85.A judge of the Appeal Chamber (I.R.) appended a separate opinion (mendim paralel), which did not affect her vote in favour of the applicant\u2019s dismissal from office. She mainly referred to the findings in respect of the flat measuring 101 sq. m. In her view, the off-plan contracts, which had not been disputed by the applicant, constituted solid evidence that that asset had not been acquired solely with the income of her partner. As a result, the applicant had endeavoured to make an incorrect disclosure of the asset and had made a false disclosure of the source used for its creation. However, the judge departed from the Appeal Chamber\u2019s findings in respect of the issues described below.","86.As regards the applicant\u2019s financial situation, the separate opinion stated that the Appeal Chamber had not considered a number of her submissions concerning certain travel expenses she had incurred over the years. Those expenses, which had not been borne by the applicant and in respect of which she had submitted evidentiary support, had been wrongly attributed to her. Those expenses had to be deducted from the total amount determined by the Appeal Chamber (seeparagraph 76 above), and the resulting amount would have been ALL478,392 (approximately EUR3,849) or less. Consequently, in view of the relatively low value and the length of the applicant\u2019s professional experience, the argument concerning a lack of income to justify her liquid assets could not constitute a solid basis (premis\u00eb t\u00eb qendrueshme) to regard it as a reason for dismissal from office, within the meaning of Article D of the Annex to the Constitution and section 61(3) and 33(5)(\u00e7) of the Vetting Act.","87.The separate opinion accepted the Appeal Chamber\u2019s reclassification as \u201cinaccurate disclosure\u201d for the plot measuring 666sq. m and the flat measuring 89.16 sq. m. However, it did not consider that those findings, which pertained to the 2003 and 2004 declarations of assets, were sufficient to constitute grounds for the applicant\u2019s removal from office, in so far as there had been no intention to conceal the asset or make a false disclosure.","88.The separate opinion did not accept the Appeal Chamber\u2019s findings as regards the evaluation of the applicant\u2019s professional competence. Upon making an analysis of section 36(1)(c) of the Constitutional Court Act and Article 72 of the Code of Civil Procedure, the separate opinion argued that, having regard to the special nature of proceedings before the Constitutional Court, which was called upon to examine solely an alleged lack of impartiality in a set of civil proceedings and not the application of substantive law, domestic law did not provide for a situation like the one at hand, in which the applicant had had a conflict of interest in relation to the criminal proceedings in which her father had acted as rapporteur and at the end of which it had been decided that the criminal proceedings were time-barred. The member of the public had not raised any complaints about the applicant\u2019s participation in the Constitutional Court\u2019s bench. No private interests pertaining to the applicant or her father had been affected as a result of the outcome of the constitutional proceedings in which the applicant had sat as a member of the Constitutional Court\u2019s bench.","89.In view of the reasoning that there had been no conflict of interest, the separate opinion considered that the conclusion that public trust in the justice system had been undermined was ill-founded. The separate opinion went on to state that \u201cthe fact that a party to a set of proceedings is dissatisfied, dismayed or in disbelief with a decision given by a bench of which the applicant was a member, does not necessarily constitute a sufficient element to regard it as undermining public trust, which ... should encompass a large number of individuals who should not fall into the category of parties to that set of proceedings...\u201d.","90.On 16 July 2020 the applicant informed the Court that criminal proceedings for forgery of documents had been opened against L.D. for having concealed important information during the process leading to his appointment as member of the Appeal Chamber. L.D. was a member of the bench of the Appeal Chamber which had examined the applicant\u2019s appeal.","91.On 24 July 2020, following the institution of the criminal proceedings against L.D., the Appeal Chamber ordered his suspension from office[2].","92.In the meantime, it appears that on 1 December 2020[3] the Anti-Corruption and Organised Crime Court of First Instance found L.D. guilty of false disclosure of documents and sentenced him to six months\u2019 imprisonment, converted into twelve months\u2019 probation. L.D. has reportedly filed an appeal against that decision."],"203":["2.The applicant was born in 1989 and lives in Moscow. He was represented by Mr V.M. Shukh, a lawyer practising in Moscow.","3.The Government were represented by Mr G.Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by Mr M.Galperin, his successor in that office.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.In 2006 the applicant started a relationship with MsYe. who lived in Orel. They did not get married, and the applicant continued to spend most of his time in Moscow where he lived and worked and where his mother lived. The distance between Moscow and Orel is about 360 km.","6.In 2007 MsYe. gave birth to a son, K., and in 2008 she gave birth to a daughter, V. The children\u2019s birth certificates indicated MsYe. as their mother, whereas there was a dash in the entry concerning the father; the children\u2019s patronymic reflected the applicant\u2019s first name, and they were given MsYe.\u2019s surname. As the applicant later submitted to the national authorities, MsYe. wanted to be recorded as a single mother for the purposes of social benefits.","7.According to the applicant, during the period of his relationship with MsYe., he regularly came to see her and the children in Orel and took part in the children\u2019 upbringing. In 2009 that relationship broke down, following which the applicant did not maintain any regular contact with his ex-partner or the children.","8.On 19 February 2010 the police in Orel received a complaint that MsYe. was getting drunk and was neglecting her two children. On 22February 2010 the police arrived at Ms Ye.\u2019s place of residence, urgently removed K. and V. from their mother and placed them in Orel children\u2019s hospital for infectious diseases. On the same date they informed the Orel childcare authority of this placement.","9.On 12 March 2010 the hospital informed the Orel childcare authority that, to date, no relatives of the children had appeared with the intention of taking them from the hospital.","10.By a decision of 5 April 2010 the Mayor of Orel ordered the transfer of K. and V. into public care, stating that they had both been neglected by their mother, a single parent, and that this situation posed a threat to their life and health. The next day the children were placed in a municipal childcare facility \u2013 the Orel specialised infant home (\u201cthe Orel infant home\u201d).","11.On 1 June 2010 Ms Ye. asked the Orel infant home to keep her son K. for six months; on 24 December 2010 she made a similar request with regard to her daughter, asking the Orel infant home to keep V. for four months.","12.On 29 July 2010 K., who had reached the age of three, was transferred to another municipal facility \u2013 the Mtsensk children\u2019s home. His younger sister V. remained at the Orel infant home.","13.On 25 May 2011 the Orel infant home drew up a report confirming that MsYe. had failed to participate in V.\u2019s upbringing. The report stated that the mother had not paid any visits to V. during the past five months, had not inquired about her health and well-being, and had not contributed financially to the child\u2019s maintenance. In such circumstances, and taking into account the fact that the girl had lived away from her mother for over six months, there was no need to seek her consent for the child\u2019s adoption.","14.On an unspecified date the Mtsensk children\u2019s home brought a court action seeking to have Ms Ye. deprived of her parental authority in respect of K.","15.On 19 July 2011 the Sovetskiy District Court of Orel (\u201cthe District Court\u201d) granted that action, which had been supported by the Orel childcare authority, and deprived Ms Ye. of her parental authority in respect of K. The Mtsensk children\u2019s home argued that since K.\u2019s transfer there in July 2010, Ms Ye. had not paid a single visit to him, had not sent anything, called or otherwise shown any interest in his life. Ms Ye. admitted her failure to take part in her son\u2019s upbringing for over one year and did not contest the claim. The District Court concluded that it was in the child\u2019s best interests to deprive Ms Ye. of her parental authority in respect of her son; it also ordered that she pay child maintenance for the benefit of the Mtsensk children\u2019s home, to cover the costs of her child\u2019s upbringing. The judgment was not appealed against and it entered into force on 30 July 2011.","16.On an unspecified date the Orel infant home instituted court proceedings to deprive Ms Ye. of her parental authority in respect of V.","17.On 15 November 2011 the District Court granted that action, which had been supported by the Orel childcare authority. The Orel infant home pointed out that since V.\u2019s placement there in April 2010, Ms Ye. had only paid four visits to her daughter. Ms Ye. contested the claim and argued that she had paid visits to her daughter as often as she could, and that at other times when she wanted to visit, the Orel infant home had not been admitting visitors. She argued that she was working, had little time to spend with the child, but that she intended to take her daughter to Moscow where V.\u2019s father (the applicant) and his mother lived. She did not name the father and the court does not seem to have followed up on this information. The District Court concluded that it was in the child\u2019s best interest to deprive MsYe. of her parental authority in respect of her daughter; it also ordered that she pay child maintenance for the benefit of the Orel infant home to cover the costs of her child\u2019s upbringing. The judgment was not appealed against and it entered into force on 29 November 2011.","18.On 25 November 2011 the Orel infant home gave its consent to V.\u2019s transfer into the care of third parties, MsL.P and MrYu.P. The relevant document noted that the prospective foster parents had established good emotional and psychological contact with the child, who was in need of attention and support from caring adults. Since the child\u2019s placement in the institution, her mother had not paid any visits and had not made any attempt to re-establish contact with the child. The report concluded that V.\u2019s transfer into the care of MsL.P. and MrYu.P would be in her best interests.","19.By a decision of 30 December 2011 the Mayor of Orel ordered V.\u2019s transfer into the foster care of MsL.P and MrYu.P. On 11 January 2012 MsL.P and MrYu.P. concluded a fostering agreement with the Orel Town authorities, which determined their rights and obligations as V.\u2019s foster parents.","20.On 12 January 2012 V. was transferred into the care of MsL.P. and Mr Yu.P. and has been living in their family ever since. According to the explanation given by MsL.P. and MrYu.P. in the context of the proceedings before the Court, at that time the childcare authority had informed them that V. had a brother, K., and invited them to take both children into their care. They had, however, refused as they had been informed that V.\u2019s brother had a mental disability.","21.On 5 April 2012 the applicant wrote to the Orel childcare authority seeking their consent, as required by the relevant domestic law, for the purpose of filing a request for a formal recognition of his paternity. He stated that the children\u2019s mother had been deprived of her parental authority; that during the relevant court proceedings she had informed the authorities that the children had a father but the court had disregarded that information; that a relevant childcare authority had concealed the fact that the applicant\u2019s mother had assured them that she and the applicant were willing to take the children in the event of the removal of Ms Ye.\u2019s parental authority; and that Ms Ye. had concealed from him the fact that she had been deprived of her parental authority. The applicant stated his intention to have the children transferred into his care and stressed that the children had been separated in July 2010, which must have caused them further emotional distress. He also stated that he was aware of K.\u2019s whereabouts but was unable to establish V.\u2019s whereabouts as she was living in a foster family.","22.On 15 May 2012 the applicant applied to the District Court seeking to have his paternity in respect of K. and V. legally recognised and to have the children transferred into his care and assigned his surname.","23.In his claim, the applicant pointed out that he had cohabited with MsYe. and that K. and V. had been born as a result of that relationship. He had not been indicated as the children\u2019s father on their birth certificates, as Ms Ye. had wished to retain the status of single mother to obtain welfare allowances. In March 2010 the applicant had found out that the children had been removed from Ms Ye. He had immediately suggested that he should have his paternity over them legally recognised but Ms Ye. had ignored his telephone calls. In April 2011 Ms Ye.\u2019s aunt had informed him that Ms Ye. had taken the children from their children\u2019s homes. In October 2011 he had gone to Orel and found out that the children were living in two different children\u2019s homes. He had again told Ms Ye. that he had been ready to have his paternity legally recognised but she had replied that she did not have the children\u2019s documents. After that conversation Ms Ye. had again started ignoring his telephone calls. Eventually, his mother found out that Ms Ye. had been deprived of her parental authority in respect of the children.","24.In the context of those proceedings, on 18 June 2012 the District Court ordered a DNA paternity test in respect of V., as her foster parents had doubts that the applicant was her biological father.","25.An expert\u2019s report of 2 August 2012 stated that the results of the DNA test revealed that the applicant was V.\u2019s biological father.","26.On 23 August 2012 the District Court disjoined the applicant\u2019s claim for recognition of his paternity from his claim seeking the children\u2019s transfer into his care, stating that the two issues should be examined in separate sets of proceedings.","27.By a judgment of the same date, the District Court recognised the applicant\u2019s paternity in respect of K. and V.","28.In October 2012 the Orel Town civil registration office issued new birth certificates for the children, indicating the applicant as their father.","29.By an interlocutory decision of 24 September 2012 the District Court disjoined the applicant\u2019s claim for K.\u2019s transfer into his care from his claim for V.\u2019s transfer into his care and suspended the proceedings as regards the latter claim.","30.On the same date the District Court delivered a judgment by which it ordered that K. be returned to the applicant\u2019s care. The court noted that the applicant and his mother had paid regular visits to the boy in the Mtsensk children\u2019s home, and had brought him presents and clothes. The child had looked forward to their visits, was happy to see them and had good contact with both his father and grandmother. The court was satisfied with the applicant\u2019s living conditions, and his financial and personal references. It noted that, as a parent, the applicant had a preferential right to take care of his child and that it would be in K.\u2019s best interests to live with his father.","31.On 21 February 2013 the District Court examined the applicant\u2019s claim seeking V.\u2019s transfer into his care. The applicant and his representative participated in the court hearing.","32.The court observed that the applicant was the father of V., born in 2008, and that V.\u2019s mother had been deprived of her parental authority in respect of the girl by a court judgment of 15 November 2011 (see paragraph 17 above). It further noted that on 6 April 2010 V. had been placed in the infant home, and that her mother had never sought her return, prior to the withdrawal of her parental authority in respect of the girl. The court further dismissed as unconvincing the applicant\u2019s allegation that he had found out about V.\u2019s placement in the infant home only six months later. In that connection, the court pointed out that in his claim the applicant had clearly stated that he had known about that fact in March 2010 (see paragraph 23 above). It considered that the applicant had erred in the exact dates, given that V. had been placed in the infant home in April rather than March 2010, but that, in any event, he had known about the child\u2019s removal from Ms Ye. from the very beginning. The court stressed that nothing had prevented the applicant from seeking recognition of his paternity of V. or taking her from the infant home already in that period. However, the applicant had not filed his relevant claim until May 2012 (see paragraph 22 above), more than two years later, which fact had demonstrated his indifference to his daughter.","33.The District Court critically assessed and rejected the applicant\u2019s allegations that he had trusted Ms Ye.\u2019s statement that she had taken V. from the infant home. In the court\u2019s view, if the applicant had been genuinely interested in his daughter\u2019s life, it would have been impossible to conceal from him for such a long period the fact that V. had no longer been living with her mother. Whilst, in the applicant\u2019s submission, he had talked to MsYe. over the telephone, he had never attempted to talk to his daughter, let alone come to see her in Orel.","34.The court further noted that since 12 January 2012 V. had been living with her foster parents, Ms L.P. and Mr Yu.P. Two reports by the Orel Town authorities stated that there were very good and friendly relations between the child and the foster parents, that the latter were taking good care of the girl and loved her; she called them \u201cmum\u201d and \u201cdad\u201d. Her living conditions were good, she had toys and books; the girl attended a nursery school; her foster parents expressed an interest in her life, attended all parents\u2019 meetings and other nursery school events. The report also stated that, when she had just been transferred to the foster family, V. had been reluctant to go to the nursery school, as she had been afraid that she would not be taken home. Then the situation had changed, the child had become open, sociable and affectionate. She did not know her natural father.","35.The court also took into account an expert\u2019s report on V.\u2019s psychological examination dated 3 December 2012. The report stated that V. included her foster parents and herself in her family circle. She had a strong emotional attachment to her foster mother; her attitude towards her foster father was positive and friendly. The examination had not established any other important adults to whom V. was attached.","36.The court went on to refer to two reports on the examination of the applicant\u2019s living conditions dated 14 June and 6 December 2012. They stated that, whilst there had been living space for the applicant\u2019s son, K., no such space had been envisaged for V.; the kitchen was untidy. The earlier report indicated that the applicant\u2019s mother had intended to have the flat renovated within the coming months; however, the second report stated that no renovation had been carried out to date. K. lived in the applicant\u2019s flat but had no medical insurance and was not attending a nursery school.","37.In a report of 13 December 2012 a childcare authority in Moscow, at the place of the applicant\u2019s home, pointed out that an interview with the applicant had revealed his lack of emotional attachment to his son. Moreover, the applicant had difficulty recalling when he had last seen his daughter and had not wanted to talk about his plans in the event of his daughter\u2019s transfer into his care. The report thus concluded that such transfer would not be in V.\u2019s interest.","38.An opinion from psychiatric experts pointed out that the applicant was unable adequately to assess possible psychological consequences for his daughter in the event of her transfer into his care, given that she had not seen him for four years. He was also unable to anticipate her reaction if she met her brother, whom she had not seen for two years.","39.The court also called and examined a number of witnesses. Ms S., a child psychologist, who had carried out V.\u2019s examination (see paragraph 35 above) stated that V.\u2019s separation from her foster parents, whom she considered to be her only parents and to whom she was strongly attached, would be extremely stressful for her. As a result, she might lose confidence in adults, as at her age she would have difficulty understanding that she had been separated from her foster parents so that she could be transferred to her biological father; she might assume that she had again been abandoned.","40.The head teacher of the nursery school which V. attended stated that whilst initially V. had been an anxious, reserved and unsociable child, she had eventually changed. After she had met her biological parents in the context of the DNA test procedure (see paragraph 24 above), the child had started worrying that she might be taken away from her \u201cmum\u201d and \u201cdad\u201d \u2013 her foster parents \u2013 and transferred to strangers. When she saw unknown men, the girl would start crying and ask whether those men would take her away. On several occasions, V. had asked Ms L.P. not to give her to anyone. Her biological father had never expressed any interest in the child during the period when she was attending nursery school.","41.In a written statement, the director of an arts studio which V. attended pointed out that initially the girl had been anxious and had refused to take part in the activities; she had remained on her foster mother\u2019s lap. Eventually, she had become more confident and open; and currently participated in all the activities. She was very attached to her foster parents, and would express her affection by hugging and kissing them.","42.Having summarised the above and taking into account V.\u2019s attachment to her foster parents, the District Court concluded that V.\u2019s transfer into the applicant\u2019s care was not in her best interests and dismissed his claim.","43.The applicant appealed against the judgment of 21 February 2013. He argued, in particular, that Ms Ye. had concealed the children\u2019s removal and placement in public care from him and his mother; that he had only found out about it in March 2010; that from that time onwards Ms Ye. had been refusing his requests for his paternity to be formally recognised, with the result that he had lodged a relevant court claim in May 2012. He thus challenged as incorrect the first-instance court\u2019s conclusion that he had shown indifference and disregard for his daughter\u2019s life. The applicant also challenged as unlawful V.\u2019s transfer to a foster family. He complained that the first-instance court had not taken into account a report drawn up by psychiatrists which had stated that he was fully able to bring up his children. He also pointed out that V. had not been heard by the first-instance court and that, as a result of the latter\u2019s judgment, she remained separated from her biological relatives, including himself, her brother and her grandparents.","44.On 28 May 2013, having heard the parties, the applicant\u2019s representative speaking on his behalf, the Orel Regional Court upheld the judgment of 21February 2013. It fully endorsed the findings of the District Court and noted that, should there be a change in the circumstances underlying the first-instance court\u2019s refusal to order V.\u2019s transfer into the applicant\u2019s care, it would be open to the applicant to seek the establishment of his parental authority in respect of V.","45.On 8 November 2013 and 31 January 2014, respectively, the Orel Regional Court and the Supreme Court of Russia refused to grant leave for the applicant\u2019s cassation appeal. The Orel Regional Court rejected, in particular, the applicant\u2019s argument that he was unable to exercise his parental rights and obligations in respect of V.; it stated that a child\u2019s placement in a foster family did not break the legal link between that child and his or her parents, with the result that the parents could still maintain contact with the child.","46.On 22 July 2013 the applicant was informed by the Orel child care authority that MsL.P and MrYu.P. had been invited to discuss the possibility of contact between V. and her biological relatives, including himself. The foster family refused to arrange such meetings, arguing that the girl had not known any other family except for themselves. The applicant was invited to apply to a court in order to resolve the situation.","47.On 27 September 2013 the Zheleznodorozhny District Court of Orel approved a friendly settlement agreement, which provided for contact sessions between V. and the applicant. On 21 November 20013 the same court approved a similar agreement regarding contact sessions between V. and her paternal grandmother. According to the terms of the agreements, the applicant and his mother could see V. twice a month on Saturday or Sunday for two hours during the first three months, and every week on Saturday or Sunday for two hours in the further period.","48.According to the Government, which relied on the explanation given by MsL.P. and MrYu.P. in the context of the proceedings before the Court, during the period between the date when the friendly settlement agreement had been approved by the domestic court and 15 September 2014, the date of submission by the Government of their observations, the applicant had only seen his daughter on two occasions, on 20 October 2013 and 8 June 2014. During the first contact session, the applicant had not approached his daughter, had not talked to her nor expressed any interest in her. As for the second contact session, the applicant had arrived ten minutes before it ended, had not expressed any interest in his daughter and had left without saying goodbye. His mother had made inappropriate remarks towards V.\u2019s foster parents.","49.The applicant disagreed with that account and stated that he had attended the contact sessions as often as he could. Indeed, he had been unable to participate in some of the contact sessions as his working schedule had prevented him. However, on several occasions it was V.\u2019s foster parents who had cancelled or postponed the sessions. They had been hostile towards him; they would refuse to accept some toys for V.; they were reluctant to leave the applicant and his daughter alone during contact sessions and would always supervise them. The applicant submitted photographs picturing him, his mother, K. and V. during contact sessions."],"204":["2.The individual applicants were born in 1963, 1962 and 1961 respectively and live in Wapenveld. The applicant foundation has its registered address in Wapenveld and is the owner of an estate situated at that address, where it runs a study centre. The applicants were represented by Mr R.S. Wertheim, a lawyer practising in Zwolle.","3.The Government were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The village of Wapenveld, where the individual applicants live and which also houses the application foundation\u2019s estate, is part of the municipality of Heerde, which is located in the Province of Gelderland.","6.A motocross track, which is operated by a motocross association (\u201cthe association\u201d), is located in Heerde, in close proximity to the applicants\u2019 premises and land. Since 19 May 1987 the association has been operating under a permit granted by the Provincial Executive (Gedeputeerde Staten) of the Province of Gelderland which allows the motocross track to operate from 1 p.m. to 7 p.m. on Wednesdays and Saturdays and, from April to October, on a further two weekdays from 2p.m. to 7 p.m.","7.The association and the applicants\u2019 premises are (partially) located within the so-called Natura 2000 area (a Special Area of Conservation, designated under the EU Habitats Directive). The applicants claim that they can hear the motocross bikes from their premises and land.","8.On 27 September 2013, the association asked the Province of Gelderland to issue it with a new permit under the 1998 Nature Conservation Act (Natuurbeschermingswet 1998) that would allow it to expand its activities, with a larger number of motocross bikes and extended opening hours.","9.On 4 December 2013, the Provincial Executive published a notice on its website to the effect that it intended to grant the requested permit and that the draft decision and the relevant documents could be viewed from 9December 2013 until 20 January 2014 at the provincial government building and on its website. Interested parties (belanghebbenden) within the meaning of section 1:2(1) of the General Administrative Law Act (Algemene wet bestuursrecht; see paragraph 17 below) were given an opportunity to submit their views on the draft decision, either in writing or orally, before 20 January 2014, and more information on that matter could be found at the end of the draft decision itself.","The text of the draft decision mentioned that it would only be possible to appeal against the actual decision if the appellant had already submitted his or her views on the draft decision and he or she was an interested party.","10.No views having been received, the Provincial Executive issued the permit on 27 January 2014. It published notification of its decision on the provincial website, saying that the decision and the relevant documents could be viewed from 30 January until 13 March 2014 at the provincial government building and on the aforementioned website. Interested parties could appeal against the decision before 13 March 2014, and more information on that matter could be found at the end of the decision itself. The text of the decision also mentioned that Chapter 3.4 of the General Administrative Law Act (see paragraph 18 below) had been declared applicable to the association\u2019s request for a new permit.","11.The applicants first became aware of the decision granting the new permit on 4 November 2014. On 12 November 2014 they appealed to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State \u2013 \u201cthe Administrative Jurisdiction Division\u201d) against the decision. They stated that it was unclear whether the notifications of the draft decision and the decision had ever actually been published. In addition, they submitted that the fact that they had lodged their appeal outside the legal time-limit and that they had not submitted any views on the draft decision was excusable because publishing the notification on a provincial government website could not be regarded as publishing in \u201csome other suitable manner\u201d as required by section3:12(1) of the General Administrative Law Act (see paragraph 19 below). Citizens of the Netherlands could not be expected, or might not be able, to monitor all the websites of all local and regional administrative authorities. On those grounds, the applicants argued that their right of access to a court under Article 6 of the Convention had been breached.","12.In the appeal proceedings it was argued on behalf of the Provincial Executive that the notifications of both the draft decision and the decision had been published correctly. Two screenshots were submitted, taken from an archiving website which showed the notifications of the draft decision and the decision. The Provincial Executive also argued that the electronic publication of the notifications complied with the provisions of the General Administrative Law Act and the 2012 Gelderland Province Electronic Notification Ordinance (Verordening elektronische bekendmaking Gelderland 2012, \u201cthe Electronic Notification Ordinance\u201d \u2013 see paragraphs23-25 below) which specifically provided for electronic publication. Given the accessibility of the Internet, moreover, the Provincial Executive was of the view that there had been no violation of Article 6 of the Convention.","13.The Administrative Jurisdiction Division decided on the appeal in a judgment of 7 September 2016 (ECLI:NL:RVS:2016:2421). In it, it referred to a previous judgment in which it had held that notification of a draft decision via the Internet could constitute a suitable manner of notification, but that the applicable provisions of the General Administrative Law Act required that notification of a draft decision also be given in at least one non-electronic manner, unless a statutory provision provided otherwise (see paragraph 22 below). The applicants\u2019 argument that electronic notification was not a suitable manner of notification did not give the Administrative Jurisdiction Division cause to reconsider this case\u2011law.","14.Furthermore, it considered that its case-law was not at odds with Article 6 of the Convention. Referring to the Court\u2019s case-law (see Ashingdane v. the United Kingdom, 28 May 1985, Series A no. 93), it stated that Article 6 did not entail an absolute right of access to a court and that States had a certain margin of appreciation when laying down regulations limiting access to a court, as long as such limitations did not impair the very essence of the right of access to a court, pursued a legitimate aim, and complied with the requirement of proportionality. The Administrative Jurisdiction Division acknowledged that the manner of notification of a decision could in certain circumstances restrict access to a court to an extent incompatible with Article 6; for example if notice of a decision was given in a completely inadequate manner and as a result an interested party was unable to apply to a court within the period allowed, or at all. The Administrative Jurisdiction Division held that such a situation did not arise when notification of a decision was given solely by electronic means, and it could therefore not be said that the essence of the right to a court was impaired. By allowing notification of a decision solely by electronic means, the legislator had attempted to facilitate easier and faster communication between citizens and the administrative authorities. The underlying thought behind this was that such electronic communication could significantly contribute to the objective of achieving a more accessible and better functioning administration, which was a legitimate aim.","15.The Administrative Jurisdiction Division found that the applicants\u2019 argument offered no grounds for holding that the requirement of proportionality had not been complied with when notification of a decision was given solely by electronic means. It therefore perceived no cause to hold that the possibility of giving notification of decisions solely by electronic means was, as such, contrary to Article 6.","16.Lastly, the Administrative Jurisdiction Division noted that the Electronic Notification Ordinance (see paragraphs 12 above and 23-25 below) had entered into force before the impugned decision had been taken. There had therefore existed a statutory provision providing for notification of decisions solely by electronic means. For that reason it considered that it was in principle not unacceptable that notification of the decision had been published solely on the Gelderland provincial website. Moreover, the applicants had not made a plausible case for believing that the archiving website used by the Provincial Executive and other administrative authorities was unreliable or that it did not provide a proper overview of notifications that had previously been published on the provincial website. The Administrative Jurisdiction Division considered it sufficiently established that the notifications of both the draft decision and the decision had been published on the latter website. The applicants could therefore reasonably be considered to have been at fault for not having submitted any views on the draft decision and for having lodged their appeal too late. That appeal was accordingly inadmissible."],"205":["2.The applicant was born in 1967 and lives in Kassel. He was represented by Mr B. Hopmann, a lawyer practising in Berlin.","3.The Government were represented by Ms G. Marok-Wachter, Director, of the Office of Justice of the Principality of Liechtenstein.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant is a doctor specialised in general and internal medicine. From 1June 2013 he was employed as deputy chief physician of the department for internal medicine at the Liechtenstein National Hospital (Liechtensteinisches Landesspital), a registered Liechtenstein public law foundation. He worked under a contract of indefinite duration which could be terminated with six months\u2019 notice. His direct superior was Dr H., chief physician of the said department.","6.On 9 September 2014 the applicant did some research in the electronic medical files of the hospital. He found information showing that four patients had died in the hospital following the administration of morphine. He concluded from notes made in these files that Dr H., who had treated these patients, had practised active euthanasia.","7.On the same day the applicant met with the President of the Control Committee of the Liechtenstein Parliament (the \u201cParliamentary Control Committee\u201d), Mr M., on the latter\u2019s initiative, following several anonymous complaints about deficiencies in quality in the Liechtenstein National Hospital. On that occasion, the applicant voiced suspicions that DrH. had practised active euthanasia.","8.On 11 September 2014 the applicant, on Mr M.\u2019s advice, lodged a criminal complaint against Dr H. with the Public Prosecutor\u2019s Office which instituted proceedings against Dr H. on suspicion, inter alia, of killing on request and participation in another person\u2019s suicide.","9.On 18 September 2014 the police seized the paper medical files of the four patients concerned at the Liechtenstein National Hospital and questioned DrH.","10.On 19 September 2014 the applicant, following further research in the hospital\u2019s electronic medical files, informed the Public Prosecutor\u2019s Office that he suspected that Dr H. had practised active euthanasia on six additional patients. He was questioned by the police on the same day. He supported his suspicions by the fact that according to the electronic files, the death of these patients had occurred shortly after the start of the treatment with morphine, that morphine had been given even without an indication that the patients suffered from pain, that the treatment had been called \u201csupportive therapy\u201d or \u201csupportive measures\u201d, and having regard to the medication administered. He stressed that the aim of his statement was to avert damage to patients of the hospital.","11.At the time of the events, the Liechtenstein National Hospital had a body to which irregularities could be reported anonymously via an online form, the Critical Incident Reporting System (CIRS). While initially Dr H. alone had been the person examining and acting upon such reports, this task had been entrusted to a group of three persons (not including Dr H.) since summer 2014 at the latest. It is unclear when this change in responsibilities was communicated within the hospital. The applicant did not contact this body.","12.On 19, 22 and 24 September 2014 the vice-president of the hospital\u2019s foundation board drew up three reports on the request of the foundation board regarding the treatment of the ten patients in question. Having examined the patients\u2019 paper files and having questioned Dr H., he concluded that all patients had been in a palliative situation under the WHO\u2019s standards and that there had not been any mistake regarding the morphine administered. He considered that the applicant had failed to take into account the pain or difficulty in breathing of the patients concerned, which had made necessary the treatment in question. If the applicant had read the patients\u2019 paper files, which alone, as had been known at the time, had contained complete information regarding the patients\u2019 condition and treatment and to which he had had access, he would have realised immediately that his suspicions of active euthanasia were clearly unfounded.","13.On 26 September 2014 the applicant was suspended from office.","14.On 2 October 2014 the applicant made a written statement setting out his position to the National Hospital on the latter\u2019s request. He explained that he had done some research in the electronic files of several patients who had died in the past weeks following an indication by a doctor working in the hospital that recently there had been an unusual rise in deaths of patients in the hospital. In his view, the ten patients concerned had clearly not been treated lege artis. After thorough reflection, he had decided to inform the Public Prosecutor\u2019s Office in order to protect the patients and the hospital and to comply with his own ethical convictions and the provisions of the Physicians\u2019 Act (\u00c4rztegesetz; see paragraph 36 below). As he was convinced that there had been criminal offences, as he had not expected the matter to be investigated properly within the hospital and in view of the urgency of the situation, he had not contacted an internal body of the hospital prior to lodging a criminal complaint with the Public Prosecutor\u2019s Office.","15.In a report received by the National Hospital on 15 October 2014 a Swiss external medical expert in palliative medicine commissioned by the Hospital, N., having studied the medical paper files of the patients concerned and having heard Dr H., concluded that no active euthanasia had been practised on the ten patients in question. The expert considered that the patients\u2019 palliative treatment had been necessary and justified as they had been at the end of their lives. They had died as a result of their illnesses and not as a result of their treatment. They had been given morphine in order to treat their pain and difficulty in breathing and not to end their lives. The expert noted that some of the morphine doses prescribed \u2013 especially those \u201cwithout upper limit\u201d \u2013 may not have been necessary, but such doses had never been administered in practice.","16.On 17 October 2014 the director of the National Hospital dismissed the applicant without notice. He considered that owing to the applicant\u2019s severe fault, the relationship of trust with him had been destroyed irretrievably. He argued that the applicant had failed to raise his allegations of active euthanasia and quality flaws with the hospital\u2019s competent internal bodies prior to raising them externally with the President of the Parliamentary Control Committee and with the Public Prosecutor\u2019s Office. The applicant had been obliged to inform Dr H., or at least the director of the hospital or a member of the foundation board with whom he had a normal relationship, of his allegations. Furthermore, the applicant\u2019s allegations of euthanasia had been considered as clearly unfounded by the external expert commissioned by the hospital.","17.The Liechtenstein newspapers and radio repeatedly reported on the suspicions of active euthanasia at the Liechtenstein National Hospital and the criminal investigations against Dr H. in this respect.","18.The investigating judge in the criminal proceedings against Dr H. had also commissioned an external expert practising in Austria, L. In his report dated 30 October 2014, received by the investigating judge on 11December 2014, the expert, having regard to the medical paper files of the patients in question, came to the conclusion that Dr H. had not practised active euthanasia. The patients had been given morphine only as necessitated by their palliative situation and this treatment had not caused the patients\u2019 death. Doubts regarding such palliative medical treatment and ethical decisions taken in that context could be excluded by a better documentation of the treatment in the future.","19.On 15 December 2014 the criminal proceedings against Dr H. were discontinued.","20.On 15 December 2016 criminal proceedings instituted against the applicant for having deliberately cast wrong suspicions of a criminal offence on another person by his allegations that Dr H. had practised active euthanasia were equally discontinued.","21.On 28 November 2014 the applicant brought an action against the Liechtenstein National Hospital for payment of some 600,000 Swiss francs (CHF) in compensation for the loss of salary and further pecuniary and non\u2011pecuniary damage. He claimed that his dismissal without notice had been unlawful. There had been no important reason for his dismissal as lodging a criminal complaint against Dr H. had been justified in view of the concrete suspicions of active euthanasia and the gravity of the offence concerned.","22.On 29 August 2017 the Regional Court dismissed the applicant\u2019s action. It found that the applicant\u2019s dismissal without notice had been justified under Article1173a \u00a7 53 (1) and (2) of the Civil Code (seeparagraph 35 below). The court considered, in essence, that there had been an important reason for the employing hospital to terminate the employment contract. As the applicant had failed to sufficiently verify his unfounded suspicions of active euthanasia in the patients\u2019 medical paper files and to signal his suspicions within the hospital prior to informing external bodies thereof, the continuation of the employment relationship by the hospital could no longer be expected in good faith.","23.On 10 January 2018 the Court of Appeal, allowing an appeal lodged by the applicant, quashed the Regional Court\u2019s judgment. It ordered the defendant hospital to pay the applicant CHF 125,000 in salary arrears and remitted the remainder of the case to the Regional Court for a fresh consideration of the applicant\u2019s compensation claims. The Court of Appeal found that the applicant\u2019s dismissal without notice had not been justified. The disclosure of irregularities to third persons was covered by the right to freedom of expression and could justify a dismissal only if it was coupled with a serious breach of the duty of loyalty. However, there was no such serious breach in the present case.","24.The Court of Appeal argued that the institution of proceedings against DrH. by the Public Prosecutor\u2019s Office confirmed that the applicant\u2019s suspicions had not been unfounded. In view of the severity of the offence at issue, contacting external bodies such as the Parliamentary Control Committee or the Public Prosecutor\u2019s Office, which were both under a duty of confidentiality, had not been disproportionate. The fact that the applicant had reported directly to the Public Prosecutor\u2019s Office did not raise an issue in this respect. The court further agreed with the applicant that in the circumstances of the case, reporting the issue to Dr H. in the context of the internal mechanism to report irregularities had not been a suitable approach.","25.On 4 May 2018 the Supreme Court, allowing the defendant hospital\u2019s appeal on points of law, quashed the Court of Appeal\u2019s judgment. It dismissed the applicant\u2019s claim for payment of CHF 125,000 in salary arrears in a partial judgment and remitted the remainder of the case to the Court of Appeal in a partial decision for it to dismiss the applicant\u2019s action in that regard.","26.The Supreme Court considered that the applicant\u2019s dismissal without notice had been lawful. It stressed that the applicant, a senior employee, had only consulted the electronic medical files, which he had known to be incomplete, although he could have consulted the paper files at any moment. If he had done so, he would have recognised immediately that his suspicions were clearly unfounded. He had thus failed to verify his serious and unjustified allegations before disclosing them to third persons and before lodging a criminal complaint. This conduct amounted to a serious breach of trust in relation to his employer which justified his dismissal without notice.","27.On 4 June 2018 the applicant lodged a complaint with the Constitutional Court against the partial judgment and partial decision of the Supreme Court. He argued that his dismissal had breached, in particular, his right to freedom of expression under the Constitution and Article 10 of the Convention. Reporting his suspicions of active euthanasia to external bodies had been justified whistle-blowing.","28.On 3 September 2018 the Constitutional Court found that the applicant\u2019s constitutional complaint was admissible as the Supreme Court had taken a final stance on the applicant\u2019s action, but dismissed the complaint on the merits (file no. StGH 2018\/74).","29.The right to freedom of expression applied in the relationship between the applicant and the Liechtenstein National Hospital. While the hospital was a State institution, the applicant\u2019s dismissal was not an act of public authority, but was governed by private law. The right to freedom of expression nevertheless applied indirectly in their relationship (indirekteDrittwirkung).","30.The Constitutional Court accepted that the applicant regarded himself as a whistle-blower. Having regard to the criteria developed, interalia, by the European Court of Human Rights in the case of Heinisch v.Germany (no.28274\/08, ECHR 2011 (extracts)) on freedom of expression in the context of whistle-blowing, the Constitutional Court found that the applicant\u2019s right to freedom of expression had not been violated by his dismissal without notice. It recognised that there was a considerable public interest in medical treatment which was in accordance with the state of the art in a public hospital. Moreover, the civil courts had not found that the applicant had acted out of personal motives.","31.The Constitutional Court noted, however, that the applicant had failed to test his suspicions regarding the practice of active euthanasia arising from the electronic medical files by verifying the paper files of the patients concerned. Had he done so, he would have realised immediately that his suspicions \u2013 which could be considered comprehensible having regard to the electronic files alone \u2013 were clearly unfounded. In the light of the gravity of the allegations and the consequences for all concerned by them in the event that these allegations became public, the applicant had been obliged to proceed to such verification, even more as he had known that the electronic files had been incomplete. The applicant had therefore acted irresponsibly. Therefore, his right to freedom of expression had not been breached.","32.The Constitutional Court, just as the Supreme Court, could thus leave open whether the applicant, prior to raising his allegations externally, should have attempted to raise them internally, notably with the director of the hospital.","33.The judgment was served on the applicant\u2019s counsel on 7November2018."],"206":["2.The applicants were born in 1978, 2007, 2010, 2013, and 2014 respectively and live in Marsaskala.","3.The Government were represented by their Agent, Dr V. Buttigieg, then State Advocate, and later by their Agents, Dr C. Soler, State Advocate and Dr J. Vella, Advocate at the Office of the State Advocate.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","THE CIRCUSMTANCES OF THE CASE","5.In or around 2016 the first applicant and his wife\u2019s marriage broke down. At the time their children were one, three, five and nine years of age. The first applicant left the matrimonial home in November 2016 after consensual separation proved elusive. At the time he had three hours of contact a week with his children, in the presence of his wife at the matrimonial home.","6.In April 2017 the first applicant filed for mediation (a compulsory step prior to separation) with the mediation section of the Civil Court (Family Section) (hereinafter the \u2018Family Court\u2019).","7.On 31 May 2017 the Family Court granted the parents joint care and custody, residence with the mother, access to the father as previously decreed (see paragraphs 12 and 13 below) and ordered the first applicant to pay maintenance for the four children.","8.On 7 July 2017 the first applicant and his wife initiated separation proceedings, after unsuccessful mediation. He requested that care and custody be exercised jointly, and that access be decided in the best interests of the children.","9.On 28 August 2018 the first applicant noting the behaviour of the mother, confirmed by the relevant expert reports, asked the Family Court to grant him custody and that the children live with him and the mother be given access rights. As an alternative, he asked the Family Court to issue a care order (with access rights to the parents) to enable the children to obtain the required care. He further asked the Family Court to hear the children only after they had gone through therapy, as they had been \u201cbrainwashed\u201d by their mother. The mother objected on 6 November 2018 and on 7November 2018 a children\u2019s advocate was appointed to speak to the children and relate their views to the court. No decision appears to have been taken on the latter request and it doesn\u2019t appear that a child advocate met the children.","10.Following the report by A\u0121enzija Apo\u0121\u0121 (a social services organisation - hereinafter \u2018AA\u2019) of 10 September 2019 (see paragraph47 below), in the light of the deteriorating mental health of the children and the emotional abuse they were suffering, on 26 September 2019 the first applicant again asked the Family Court to grant him care and custody, which could take effect with the help of AA. The mother made submissions in reply objecting. She considered that the best solution would be for her to have sole care and custody and claimed that the children were suffering from a trauma due to their father whom the children did not want to see, and which caused their urinary problems (see paragraph 46 below). By a decision of 10 October 2019 the first applicant\u2019s request was refused \u201cfor some of the reasons set out in the reply\u201d.","11.In the meantime, while the parents had joint custody, as appears to be the case to date, various decisions were taken in relation to the first applicant\u2019s access rights.","12.Following the first applicant\u2019s request, on 10 May 2017, the Family Court granted him access (contact) to his children, supervised by AA, in the absence of any other persons, which was set for Wednesdays between 17.00and 19.00 and Saturdays between 11.00 and 14.00. A children\u2019s advocate was appointed for the minors \u2013 however he only met them for a brief ten-minute meeting in October 2017.","13.On 30 May 2017 the Family Court rejected the mother\u2019s request to be present during the father\u2019s contact considering that her presence would be detrimental to the children. It noted that no access had actually taken place as it was impeded by the mother whose actions constituted contempt of court and any further action in this regard was being reserved. Bearing in mind that it was exam time in schools, the court altered the decree of 10May 2017 ordering that the contact planned for Wednesdays was to start as of 1 July 2017. During these visits the mother and other family members were to keep a distance of more than 500 metres and were not to have any interaction with the children. The court warned the mother that any inappropriate behaviour by the children during the visits would not be tolerated and ordered that she should bring the children to AA half an hour before the visit and to immediately leave the venue. It decreed the mediation between the parties closed and authorised them to proceed with separation proceedings.","14.On 31 May 2017, the children\u2019s access to the father was confirmed as previously decreed (see previous paragraph).","15.On 31 August 2017, following a request by the Family Court, AA drew up a report recommending that the father\u2019s access to the two elder children be suspended since they created an obstacle to the relationship between the father and the two younger children. It however recommended that the two elder children attend therapy sessions with their father and that his access to the two younger children be granted, twice a week for two hours, in the father\u2019s residence, without supervision. It also recommended that the mother cooperate with the social workers to enable a relationship of trust to be established. In their report it was noted that the children were aware of the judicial proceedings and that they argued with their father because he didn\u2019t give them enough maintenance. It was also noted that the mother had complained about the social services and had denied any responsibility for the children\u2019s behaviour.","16.On 5 October 2017 AA drew up a report on the status of the relationship between the parents and the children. According to the report the elder children did not want to attend the contact sessions and they were being aggressive towards their father and the social workers. It appeared that their mother had been inciting the children\u2019s negativity towards their father, to the extent that they had become her accomplices and were lying about their father (such as injuring themselves and then blaming their father for such injuries, despite the social workers having witnessed the scene). In view of the emotional damage being suffered by the children, the contact was stopped. The report recommended that the parents attend therapy to help their children as well as participate in parenting skills classes.","17.On 22 November 2017 the Family Court ordered the expert psychologist (CS) to give the case priority and to report on any progress in relations between the minors and the first applicant. It ordered that the first applicant start to again have access to the two younger children once a week for two hours, under supervision by AA, and twice a week over the Christmas vacation period.","18.On 11 January 2018 CS was heard and the Family Court appointed a clinical psychologist (SVC) to assess the parties with the assistance of CS. However, it was ultimately CS who delivered a report in August 2018.","19.On 14 March 2018 the first applicant filed an application with the court complaining that the mother had been orchestrating every possible situation to alienate the children from their father, to the extent that they wished him dead. He requested, inter alia, that contact with the two younger children be unsupervised and that the court order supervised contact with the two elder sons. The mother objected. On 10 April 2018 the Family Court accepted the first applicant\u2019s requests: to grant him weekly unsupervised access to the two younger children and supervised access to the two older children (each one on alternate weeks); that access to the children by the maternal family (who were contributing to the problems between the children and their father) be limited; that any therapy session be in addition and not in substitution of the family sessions that the first applicant had with the children, and that sessions with the elder children start immediately to avoid any further waste of time. It further considered that it did not have the competence to order the mother to stop, inter alia, sending letters threatening criminal proceedings every time he phoned the children. The mother challenged this decision and by a decree of 1May 2018 the court rejected her challenge.","20.According to the first applicant, the only time supervised contact occurred, on 5 May 2018, the outcome was excellent.","21.On 24 May 2018, the first applicant filed an application with the Family Court complaining that he had only had access once in the six weeks since the court order (as he had been abroad twice, the children had been sick twice and the remaining times due to obstruction by the mother). He requested i) authorisation to request AA\u2019s assistance to facilitate handover during access to the two minor children; ii) that such access be doubled during school holidays iii) that it be replaced when not successful; iv) that the first applicant be allowed to speak to the four children via telephone or video\/messaging services; v) that it authorise access to the two elder children via the help of AA; vi) that it allow him to choose a psychologist to immediately start therapy with the elder children; and vii) to order a clinical assessment so that any necessary therapy is undertaken. The mother objected on 6 June 2018.","22.In the meantime, on 28 May 2018 the mother requested the Family Court to revoke the first applicant\u2019s access rights. The latter objected on 13June 2018.","23.On 9 June 2018 the first applicant had contact with one of the younger children with the assistance of the police who arrested their mother.","24.On 12 June 2018 a psychological expert was appointed to examine both parents. According to her report, the first applicant was anxious and uncertain about the future of his family. During the examination he had been reserved, though he wanted to show that he was doing what had been asked of him. He was generally passive and dependent on others to solve problems. He was rational and accepted what was going on in the family but was hopeful that the situation would improve through professional help; however, he did not feel responsible for the difficulties affecting his family. According to the same report the mother was rational, expressed little emotions, was reserved and also aimed at achieving a positive result in the test. She attempted to show more confidence than she actually had and was a little artificial in her interactions. It is possible that she felt better taking care of the children on her own as opposed to sharing such a responsibility with someone else who may challenge her opinion or identity. She was educated and intelligent and could get along with people as long as they agreed with her; she had difficulty accepting other opinions and while stating that her children were free to have their own opinions about their father, she herself said things which showed the influence she had on them and the discipline she expected of them.","25.By a decree of 12 June 2018, having seen the AA report, the court suspended contact and ordered that the [elder] children start therapy. By another decree of the same date, in reply to the application of 24 May (see paragraph 21 above), the court accepted the first applicant\u2019s request that AA use all available means and give effect to the professional recommendations made to ensure access to the older children and address their lack of cooperation; and that the first applicant be authorised to choose his own therapist if the mother remained uncooperative, to enable therapy between him and the elder children to start without further delay.","26.In reply to the mother\u2019s application of 28 May 2018 (see paragraph22 above) on 14 June 2018 the court confirmed its decree of 12June 2018 suspending contact.","27.On 18 June 2018 the first applicant filed another request asking the Family Court to authorise AA to facilitate the handover of the younger children; that access to them be doubled over the summer holiday period; that if access to them (via contact visits) was not possible for various reasons (including an unsuccessful handover) that another day be convened in replacement, and that he be allowed to communicate with the four children by telephone or skype twice a week. The mother objected insisting that the children did not want to see their father. Another report by AA was drawn up on 18 July 2018. By a decree of 19 July 2018, having seen the report from AA, the court ordered the mother to prepare the younger children for their contact visits with their father, that handover take place within the AA facilities and that contact be held on specified dates and times. It rejected the request for oral communication with the four children.","28.In the meantime on 18 July 2018 the first applicant filed an application complaining that contact had still not taken place due to lack of cooperation from the mother and despite all the court orders, he thus asked the Family Court to intervene, setting out four pleas. The mother objected asking the court to stop all access to all the children, claiming that they were terrified of their father. By a decree of 3 August 2018 the Family Court granted the applicant\u2019s first and fourth plea, namely, his request to have access to his younger children as established in the decree of 10 April 2018 (see paragraph 19 above), and that AA affect spot checks so that the court could be sure that everything being alleged by the mother was untruthful. It postponed its decision on the other two pleas (concerning access to the elder children and police assistance to escort the first applicant in picking up the children and to enforce the contact order) until the parties were examined by a psychologist. A further decree was issued on 17 August 2018, where on the basis of the report of the psychologist CS dated 13 August 2018, the Family Court upheld these two requests.","29.On 2 November 2018 a further request was made by the first applicant. A decree was issued on 20 November 2018 by which the court noted that so many requests had been lodged in these proceedings that it was difficult to know the most recent mental state of the children, it thus ordered that the children be heard by CS who would later report to the court. This order was never implemented.","30.On 23 November 2018 the first applicant filed a further application asking the Family Court to take action against the mother who continued to impede contact; to vary the conditions established by the decree of 10April 2018 (see paragraph 19 above) in relation to the younger children and to order that the supervised contact with the elder children take place at their school with the help of AA. The mother objected. On 28 November 2018 the first applicant asked the Family Court to hear the children and the parents before the Christmas break. The first applicant\u2019s request was rejected on 15 December 2018 in view of the decree issued in the meantime on 6 December 2018.","31.By a decree of 6 December 2018, after having heard the three elder children in camera (without the first applicant having been informed), having regard to the best interests of the children, which it underlined, it revoked any previous decrees granting the first applicant access rights and suspended all contact, unless the children wished otherwise, until 6June 2019 (when the court would hear the children again). The Family Court took note of the multiple requests lodged by the applicant for access to his children, as well as his request to issue a care order (see paragraph9 above); the reports concerning access; that no effective access was taking place due to the children\u2019s unwillingness; and the thoughts and wishes of the children as expressed to the court in its chamber.","32.On 15 January 2019 the first applicant challenged that decision and asked the Family Court to give him a copy of the children\u2019s testimony. He also asked that the children be supervised by AA which was to recommend the relevant path and therapy to improve the child-father relationship. The mother objected noting that ever since the decision of 6 December 2018 (see paragraph 31 above), when contact had been stopped, the children were doing extremely well in all fields of life and no longer suffered the fear they had each time they were to see their father. She also considered that AA should not interfere in their lives.","33.AA also made submissions, noting that the suspension of access rights would worsen the situation, further distancing the children from their father and aggravating their negative impression of him. It further noted that in its professional opinion, in the present case there had been an alienation of one of the parents and the lack of any access rights for the father would lead to a complete alienation. It thus recommended that the minors attend individual therapy as well as family therapy with their father and that the parents start intensive psychological\/psychiatric therapy.","34.By a decree of 29 January 2019, the Family Court noted that the children had only been \u201cheard\u201d by the court, but they had not \u201ctestified\u201d thus it was not possible to accept the first applicant\u2019s request to have a copy of their statements. It postponed its reply to the other requests until after the parties commented on the AA\u2019s report, submitted on the same day.","35.The first applicant submitted his agreement with the conclusions of the report and his wish that AA supervise the parties and the necessary therapy\/treatment, as well as any future contact sessions.","36.On 15 February 2019 the Family Court requested an expert (FC) to review all the previous reports concerning contact submitted in the proceedings and to inform the court about whether the children could benefit from therapy and contact with their father. Having heard the parents and examined the two report by the psychologist (CS), the reports from AA and the two reports issued by the play therapist concerning the two elder children, the expert recommended a further intervention with the younger children via a temporary change of residence (for 90 days), that is with the father, while the necessary interventions were undertaken (as practiced in England in cases of severe parental alienation).","37.The Family Court considered that 90 days was too long but accepted to put in place a 10-day change of residence and requested the expert to draw up an action plan to this effect. The latter was presented to the court on 10April 2019. It established that the measure should take place from 17 to 26May 2019. The mother was asked to be cooperative and prepare the children for the measure and the father was to attend psychological sessions to prepare for the measure. The two children were to be seen by the psychologist at least twice individually, and, together with their father, they were to attend other sessions (in her office and in the father\u2019s place of residence), before the measure was put into place. Arrangements with the school, which all four children attended, were also to be made. A report would then be drawn up, including an assessment of the mother\u2019s will to assist such access. This plan never came into effect.","38.On 11April 2019 the Family Court issued a decree where it requested the parties to comment on the psychologist\u2019s report. According to the report, the case of the four siblings was one of \u201cpathological alignment with the mother. The created behaviours, as a result of the enmeshment existing between the children and the mother, instigated responses from the father which in turn contributed to the anxiety of the children. Moreover, the issues about the violence, which is alleged to have happened in the home between the parents in the presence of the children, is not entirely straightforward and this information is somewhat withheld. Therefore, it can be concluded that this case is a mixed combination of alienation and estrangement\u201d. The report recommended an adapted (not generic) therapeutic intervention, namely a twelve-week programme where the two expert psychologists, to be appointed by the court, would complete an assessment and then an intervention. It noted that Parental Alienation was acknowledged as a form of child abuse which required necessary treatment to protect the children from harm. In many cases they should be removed from the care of the parent who is the cause of harm. However, in cases where there was estrangement, the reunification with the alienated parent could only take place when the children indicate to the psychologist that less divisive behaviours are being manifested between the aligned and the alienated parent. He considered that at this point the only intervention which could work was the twelve-week programme.","39.On 24 April 2019 the first applicant submitted to the court that he agreed with the recommendations of the psychologist. The mother objected as she considered that the psychologist was detached from reality and she complained about the proceedings instituted by the first applicant before the constitutional jurisdictions (see paragraph 51 et sequi. below). She noted that she would not accept anything which might be potentially harmful to her children and warned the Family Court that should the situation change to the detriment of the children she would publish her story since she was ready to do anything for her children.","40.By a decree of 6 May 2019, noting that the interim decree of 16April 2019 of the constitutional jurisdictions (granting access rights to the father in respect of the youngest child, see paragraph 54 below) was contrary to the Family Court\u2019s decree of 11 April 2019, and that the latter court\u2019s work had been stultified, the Family Court held that the parties were obliged to follow the interim decree of 16 April 2019.","41.By a decree of 23 March 2019, amended by a decree of 26June 2019, the court accepted the mother\u2019s request to travel abroad with the children, despite their father\u2019s objections.","42.On 10 May 2019 the first applicant submitted to the Family Court that the interim decree of the constitutional jurisdiction only related to the youngest child and therefore it was for the Family Court to proceed on the recommendations of the psychologist and establish a plan to address the parental alienation and find a solution with respect to the three other children and the father\u2019s contact with them. He asked the Family Court to revoke its order of 6 May 2019. The mother objected. The court reserved its decision to a further date, after the hearing to be held on 1 August 2019.","43.Further requests and objections were lodged by the parties. By a decree of 21 June 2019, the Family Court considered that it could not change the orders given by the constitutional jurisdiction which was to hear a report from BC, a clinical psychologist, concerning contact with the minors. Thus, awaiting that outcome, the court rejected the requests.","44.On 24 June 2019 the first applicant lodged a further request, based on the most recent reports, asking the Family Court to remove the children from their mother\u2019s care temporarily in order for them to undertake the relevant therapy to counteract the parental alienation, and asked the court to set up a plan for contact and reunification with him.","45.On 1 August 2019 the Family Court heard two experts, BC and FC, and upheld the mother\u2019s objection to BC. Thus, another expert (AG) was appointed to determine whether there had been parental alienation and parental estrangement from the parents or the grandparents, as stated in the report drawn up by BC. In order to eventually enable contact to resume, AG was asked to provide the relevant therapy to both parents individually, and to the children. The children were not re-heard. The court further ordered weekly supervised contact with the two youngest children and that BC and AG prepare the children for the upcoming holiday travel abroad with their father. It also ordered that the children resume football practice immediately without the parents\u2019 obstructions, that they be accompanied solely by their mother (no other relatives),that their father should not be present for the time being and that the children follow catechism lessons in centre X (despite objections in relation to the fact that one of the mother\u2019s relatives was involved in this centre).","46.AA submitted its report to the court on 4 September 2019. It informed the court that contact had not been successful. Indeed, supervised access started weekly as of 22 August 2019 with the two younger children for two and a half hours in the AA premises. However, while none of the children cried, at both visits the children refused to enter the visiting room where the contact with their father was due to take place and remained in the reception area next to their mother for the duration of the visit. The report also stated that on the second visit, having refused to use the toilet at the premises and their mother having been uncooperative, one of the children urinated in the reception area and the other one outside the AA premises. The mother explained that the children had a phobia for bathrooms, a problem which occurred even at home. AA thus recommended that the mother accompany the children to the visiting room and then leave the premises.","47.AA also submitted an explanatory note to the court on 10 September 2019 (see paragraph 10 above) in reply to the accusations made against its social workers and certain submissions made by the mother which they deemed untruthful.","48.On 22 November 2019 the first applicant requested the court to grant increased access to the four children over the Christmas holidays (the younger ones and the older ones on different days). The mother objected considering access should stop altogether not increase, and that in any event separating the children over Christmas day was counterproductive to the family\u2019s well-being, moreover the first applicant had threatened via email to leave the country definitively. On 6 December 2019 the first applicant\u2019s request was refused \u201cfor some of the reasons set out in the reply\u201d.","49.No contact took place over the holidays, and the court took no further action. On 9 January 2020 the Family Court accepted the mother\u2019s request to appoint VB as a clinical psychologist with the same objectives for which BC had been appointed by decree of 1 August 2019. On 28January 2020 the case was adjourned until April 2020.","50.In the above proceedings at least four hearings were adjourned because the judge was dealing with other urgent matters.","51.In the meantime, not having seen his two elder children since September 2017 and his two younger children since May 2018, on an unspecified date in 2019 the first applicant in his own name and on behalf of his minor children instituted constitutional redress proceedings noting that despite the various decisions of the Family Court granting him access rights to his children, such contact had not been effective in practice due to the mother\u2019s behaviour, and that access had to be suspended because the children had become violent with both the father and the social workers. He relied on Article 8 of the Convention arguing that the State had failed in its positive obligation to take all the necessary steps to reunite him with his children. In particular he noted that the Family Court was allowing the father to be totally alienated from his children who had been brainwashed by their mother - a situation which had not been tackled by the Family Court. Furthermore, the decision to suspend his access rights had been taken on the basis of the children\u2019s testimony (who had been accompanied by their mother) the content of which was not known to the first applicant, neither had he been heard by that court. Relying on Article 6, he complained that the Family Court did not take any action to ensure the enforcement of his access rights; it had ignored his request of 28August 2018; and it had heard the children despite being informed of their mental state. Moreover, the children had been heard without their testimony having been transcribed, or the father informed of its content, as a result of which the court suspended his rights without giving any reasons and contrary to the principle of equality of arms.","52.The first applicant asked the court to issue an interim order: restoring access to his children, if necessary supervised by AA; to put on hold related civil and criminal cases pending the outcome of the constitutional complaint; and to hear AA in order to determine the best interest of the minor children. He also asked the court to find a violation of the above mentioned Articles and award compensation, to revoke the decision of 6December 2018 (see paragraph 31 above) and give any other necessary remedy, including regular access to his children.","53.By a decree of 26 February 2019, a children\u2019s advocate was nominated to represent the children. The advocate considered that no submissions were required from him.","54.By a decree of 16 April 2019, after hearing the first applicant and the mother who intervened in the proceedings, the Civil Court (First Hall) in its constitutional competence restored the first applicant\u2019s access right in respect of the youngest child; contact was to take place for two hours per week, supervised by AA.","55.The Civil Court (First Hall) in its constitutional competence noted that the Family Court had suddenly stopped access even to the youngest child (who had not been heard) leaving it up to the children to decide if contact was to resume and without providing any mechanism or framework to provide a follow-up of the children, or that supervised contact be granted in relation to the youngest child. Aware that it was not a third instance court it nonetheless noted that if contact was to be stopped this could cause irreparable damage and may cause permanent separation. While the Family Court had left the decision in the hands of the children, it was unlikely that they would change their minds when they had no contact whatsoever with their father and without them being monitored by relevant experts in the field of child psychology. It followed that a limited interim measure was called for. The Civil Court (First Hall) in its constitutional competence appointed BC to examine the parents and the other three children and to draw up a report for the court by 4 June 2019 in relation to the existence of parental alienation or any other reason as to why the elder children were resisting contact with their father, and to submit recommendations in relation to an action plan to restore access rights in the event that these were in the interests of the minors.","56.The Civil Court (First Hall) in its constitutional competence heard the elder children in May 2019.","57.According to the first applicant, on 20 June 2019 the court accepted the expert findings that there had been parental alienation and considered that it was now up to the Family Court to build upon the interim relief order.","58.As the sitting judge had left the Maltese judiciary, the case was adjourned until 27 September 2019 when a new judge was to be appointed.","59.On 31 October 2019 the parties and the Civil Court (First Hall) in its constitutional competence (with a new judge, X) agreed to hear the minor children only after the testimony of BC was heard. On 26 November 2019 and 9 January 2020, the case was adjourned as BC had not been notified and proceedings could not continue without his testimony. The case was adjourned until March 2020.","60.In the meantime, domestic proceedings were initiated before the constitutional jurisdictions by a third party contesting the appointment of judge X to the Maltese judiciary. The constitutional jurisdictions in that case referred the matter, by way of preliminary reference, to the CJEU.","61.The applicant feared that as a result of this challenge any eventual decision taken by X in his case could be later declared null and void.","62.Since April 2018 the first applicant lodged more than thirty criminal complaints before the Court of Magistrates concerning the denied access by the mother.","63.None of the complaints have been decided, as the hearings continue to be repeatedly adjourned.","64.In 2019 an application was lodged with the Court of Magistrates by the mother against the first applicant for a delay in the payment of maintenance of more than fifteen days. Proceedings were withdrawn once maintenance was paid.","65.VB and VEF (a psychologist involved with the children) filed a note on 21 May 2020, whereby it was concluded that this was a case of moderate to severe parental alienation, which required a family based intervention plan, including all the nuclear family and other members of the family who may be contributing to the dynamics of the alienation. In particular the psychologist VEF noted that the children viewed their father in a negative light and where angry with him, they thought that he did not love them and considered him dangerous. The younger siblings had difficulties recollecting incidents from the past, indicating that they were influenced by their older siblings. VB who held five interventions with the first applicant and four with the mother stated that the parents had an accumulated anger towards each other and that the children were suffering from their conflict. The father was sad and frustrated, and the mother was concerned about the well-being of the children. VB considered that both parents would benefit from highly specialised support in dealing with the very delicate situation. It was noted that parental alienation intervention could take four different forms and where usually mandated by the court. These forms were i)custody with the favoured parent with efforts to remedy the alienation; ii)custody with the rejected parent; iii) placement apart from both parents; or iv) custody with the favoured parent and no scheduled contact with the rejected parent, nor court-ordered interventions. As there had been very little progress, the parents\u2019 readiness to engage in therapy sessions was questioned. Hands-on parental skills during supervised visits (SAVs) were considered more beneficial. While the father asked for a plan which went beyond therapy, the psychologists considered that therapeutic interventions might take quite a long time, they thus asked the court for guidance as to how to proceed.","66.Both parties filed submissions in reply to the report. No court decree had been issued by September 2020 (date of applicants\u2019 observations).","67.On 18 July 2020 the Family Court did not accept the first applicant\u2019s request to allow M.S. to receive his First Holy Communion, in view of the conflict between his parents and the parental alienation.","68.On 28 July 2020 the Family Court rejected the request by the first applicant that the children reside with him, which had not been recommended by the expert \u2013 no other action was ordered. The first applicant challenged this decision and on 31 July 2020 the court requested the experts VB and VEF to suggest a plan on how to deal with this serious case of parental alienation, as opposed to them asking the court \u2013 that had no professional expertise or knowledge concerning the psychology of children suffering from serious parental alienation \u2013 to indicate a way forward as the latter had done (see paragraph 65 above).","69.On 4 August 2020, the applicant made two requests for a reunification programme, including access to his two younger and two elder children respectively.","70.On 17 August 2020 the clinical psychologists filed another note, confirming the previous one, stating that complex psychological dynamics had accumulated over the years \u2013 each member of the family needed therapeutic support and both parents needed to take responsibility for the family dynamics. They recommended that a therapeutic intervention plan be determined on the basis of a family focused therapy approach, that supervised access visits be carried out with a specific therapeutic goal to build a relationship between the applicants, and that this be done by W (a private mental health clinic) where they would be followed by a team of professionals and that the children are taken to the visits by a person other than the mother. They noted that a temporary change of residence was the option that showed to be effective in overcoming severe alienation, and which may need to be considered once therapeutically focused visits start to take place. Various considerations had to be made and this option could be envisaged for the younger siblings, for the time being. However, should the court order a change in residence, this should be done gradually by increasing the number of supervised visits until daily contact had been established which would then enable a change of residence.","71.The first applicant filed submissions, together with a variety of information about reunification programmes, but not the mother, and by September 2020 (date of applicants\u2019 observations) no decision had yet been taken.","72.In 2020 the expert was heard, but no decision has yet been delivered, thus, in November 2020 (date of the Government\u2019s observations) the proceedings before the first-instance constitutional jurisdiction were still pending.","73.In 2017, the applicants had seventeen successful visits together, the last being on 27 September 2017, after which the first applicant has not had contact with his two elder children. From that date, until 11April 2018 the first applicant had eighteen successful visits but only with his two younger children.","74.As of 18 April 2018 until 21 November 2018, the first applicant was meant to have thirty-two access visits with either of his children of which only two were successful \u2013 on 5 May 2018 when he saw his two younger children and on 9 June 2018 the last time he saw E.S.","75.Pursuant to the constitutional jurisdiction\u2019s interim decree, between 25April and 25 July 2019, he had ten scheduled visits with his younger son of which eight where successful, the visit of 11 July 2017 being the last time he saw him.","76.Following the Family Court\u2019s decree of 1 August 2019 until September 2020, the first applicant had forty-one scheduled visits with his two younger sons none of which was successful (see paragraph 46 above).","77.It follows that the last time the first applicant had contact with the second and third applicants was September 2017, and the last time he had contact with the fourth and fifth applicants was June 2018 and July 2019 respectively.","78.According to a report by AA of 2020, the visits were always difficult with the children refusing to have contact with their father and insulting him. The mother had not shown any cooperation in facilitating the visits.","79.A few therapy sessions with the psychologists took place between November 2019 and March 2020 leading to the reports mentioned above (see paragraphs 65 and 70 above)."],"207":["2.The applicant was born in 1949 and lives in Sunja. He was represented by Mr D. Rup\u010di\u0107, a lawyer practising in Sisak.","3.The Government were represented by their Agent, Ms \u0160. Sta\u017enik.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant, who is of Serbian origin, is the owner of a house in Sunja, Croatia. He lived there until 4 August 1995, when he left Croatia \u2013 that is to say a day before the start of a military operation (known as \u201cOperation Storm\u201d).","6.On 27 September 1995 the Temporary Takeover and Administration of Certain Property Act (\u201cthe Sequestration Act\u201d) entered into force. It provided that property belonging to persons who had left Croatia after 17October 1990 was to be sequestered \u2013 that is to say, taken into the care of and controlled by the State. It also entitled local authorities (sequestration commissions) to temporarily accommodate other persons in such property.","7.On 23 March 1996 the Sunja Municipality Sequestration Commission issued a decision allocating the applicant\u2019s house for temporary use to a certain D.V. and his family, refugees from Bosnia and Herzegovina. Shortly afterwards, D.V. and his wife, six children and sister moved into the house. D.V., his wife and sister continued to live in the house, while his children moved out over time but continued to live in Croatia.","8.On 5 August 1998 the Act on the Termination of the Sequestration Act (\u201cthe Termination Act\u201d) entered into force. It repealed the Sequestration Act and provided that persons whose property had, during their absence from Croatia, been sequestered and used to accommodate others should apply to the relevant local authorities \u2013 the housing commissions \u2013 for the recovery of their property.","9.The applicant returned to Croatia in 1999 and on 17 August 2000 lodged an application for the recovery of his house with the Sunja Municipality Housing Commission, as provided by the Termination Act.","10.In a decision of 25 April 2001 the Housing Commission set aside the Sequestration Commission\u2019s decision of 23 March 1996 (see paragraph 7 above) and ordered D.V. to vacate the applicant\u2019s house within fifteen days of being provided with alternative accommodation by the State. On the same day, the Housing Commission conducted an on-site inspection of the applicant\u2019s house and determined that it was undamaged.","11.In June 2002 the authorities in Bosnia and Herzegovina returned D.V.\u2019s house to him. The obligation of the Croatian authorities to provide him with alternative accommodation in Croatia was thereby extinguished.","12.On 21 March 2003, D.V. and his family moved out of the applicant\u2019s house; three days later, on 24 March 2003, the applicant repossessed it. On both occasions employees of the relevant Ministry drew up handover records using a standardised form that contained a section regarding the state of (repair of) the property. On 21 March 2003, an official of the Ministry and D.V. signed such a record; however, on 24 March 2003 the same official and the applicant signed another record. The section concerning the state of (repair of) the property was left blank on both occasions.","13.The applicant submitted that after entering into possession of the house he had found it almost completely empty. Almost all movable property in the house, as well as some vehicles and livestock, had been missing or had been destroyed, and parts of the house had been damaged. The Government submitted that the applicant had not notified the authorities that the house was damaged or that items were missing from it.","14.On 24 March 2003, a neighbour of the applicant drew up a handwritten record in the presence of two witnesses in which he indicated that a representative of the relevant authorities had previously given the applicant a key to the house. The said neighbour specified all damage, listed all the items missing from the house and calculated the amount of the damage sustained. Neither any representatives of the authorities nor the applicant were present when the record was made.","15.On 17 July 2003 the applicant brought a civil action in the Sisak Municipal Court (Op\u0107inski sud u Sisku) against the State, Sunja Municipality and D.V. seeking 224,400 Croatian kunas (HRK) as compensation for all the property that D.V. had stolen, destroyed or damaged, and HRK 48,000 as compensation for his inability to use his house during the period between 1September 2000 until its repossession on23 March 2003 (see paragraphs 9 and 12 above). The applicant \u2013 who was throughout the proceedings represented by an advocate \u2013 argued that the State, the local authorities and the temporary occupant were jointly and severally liable for the damage incurred. He also referred to the record drawn up by his neighbour and proposed that the court summon the latter and the two witnesses who had been present when that record had been drawn up (see paragraph 14 above).","16.On 11 April 2005 the court stayed the proceedings because D.V. had died. The proceedings were to be resumed when his heirs took over the proceedings.","17.On 12 May 2005 the applicant withdrew his action in so far as it concerned D.V. On 16 June 2005 the court delivered a decision declaring that the action was to be considered withdrawn in so far as it concerned D.V.","18.At the hearing held on 27 February 2006 the court heard the applicant, who testified that he had requested that police be present when he would move in but that the police had told him that they had not been authorised to do so and had advised him to take photographs of the house, which he had done.","19.In a judgment of 20 February 2008 the Sisak Municipal Court dismissed the applicant\u2019s action.","20.On 23 October 2008 the Sisak County Court (\u017dupanijski sud u Sisku) dismissed an appeal by the applicant and upheld the first-instance judgment in the part concerning compensation for his missing and damaged property.","21.On the other hand, the second-instance court quashed the first\u2011instance judgment in respect of the applicant\u2019s claim for compensation for his inability to use his house. In the resumed proceedings the applicant withdrew part of that claim and was eventually awarded HRK 18,905.12 as compensation for not being able to use his house.","22.In a judgment of 31 August 2011 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed an appeal on points of law (revizija) lodged by the applicant. It held that under the legislation in force neither the State nor the local authorities could be held liable for damage inflicted on sequestered property by third persons, including temporary occupants. The relevant part of the Supreme Court\u2019s judgment read as follows:","\u201cIn the proceedings before the lower courts it was established:","...","- that at the time of the return of the property a large number of household items were found to be missing or destroyed.","...","In the appeal on points of law the plaintiff contests the lower courts\u2019 decisions because he considers that the liability of the State lies in its failure to supervise the use of temporarily sequestered property.","The plaintiff bases his claim for compensation for pecuniary damage resulting from the destruction of [various] items of movable property in the house on the fact that the defendants \u2013 Sunja Municipality and the State \u2013 temporarily sequestered the property and failed to supervise its use.","...","[The relevant provisions of the Sequestration Act provided that] persons to whom [sequestration] commissions allocated property ... for temporary use (occupants) had to use that property with the care of a prudent administrator [pa\u017enjom dobrog gospodara] (which follows from section 7(1) of the said Act). Section 10 of the said Act stipulates cases in which the further use of property may be denied by setting aside the decision allocating that property ... for temporary use. ... [It] follows that the Act prescribes the duty of the occupant of a property and of the persons to whom [its use] was entrusted to [do so] with the care of a prudent administrator. However, it does not follow from the aforementioned legal provisions that the occupant\u2019s non\u2011compliance ... with this legal obligation would result in the State being liable in tort. This is because no legislation provides the (vicarious) liability of the State for damage inflicted by occupants ... on the property entrusted to them.","...","The fact that the State enacted the Sequestration Act, which is primarily intended to protect abandoned property, as follows from its sections 1 and 2, does not in the present case render it liable to compensate the plaintiff for the damage [sustained]. The mere fact that, pursuant to the said Act, the plaintiff\u2019s property temporarily came under the administration of the State does not suggest that the State is liable for damage incurred ...\u201d","23.On 30 April 2012 the applicant lodged a constitutional complaint against the Supreme Court\u2019s judgment. Relying, inter alia, on Article 1 of Protocol No. 1 to the Convention he complained of a violation of his right to the peaceful enjoyment of his possessions.","24.By a decision of 9 January 2014 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant\u2019s constitutional complaint and on 29 January 2016 served its decision on his representative."],"208":["2.The first applicant was born in 1977, the second applicant in 1984 and their two sons in 2004 and 2007 respectively. They live in Madrid. The applicants were represented by Mr F.J. Rubio Gil, a lawyer practising in Madrid.","3.The Government were represented by their Agent, Mr R.A. Le\u00f3n Cavero, State Attorney.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.According to the applicants, the first applicant moved to Spain in the late1990s. According to the population register, the first applicant has been residing in Madrid since 2001 and the second applicant since 2003 \u2013 they got married in Morocco in 2001. The first and second applicants were at that time registered at the same address in Madrid. On an unspecified date in late 2004 or beginning 2005 \u2013 this was disputed by the parties \u2013 they started unlawfully building a house on public land in the section of the Ca\u00f1ada Real Galiana located within the Municipality of Madrid (\u201cthe Municipality\u201d). They, together with one of their children (who was born in July 2004), registered it as their place of residence on 4April 2005. At the time, the first applicant was working as a self-employed in the construction sector. The second applicant\u2019s residence permit did not authorise her to work. The younger son was born in August 2007. According to the first and second applicants, at the time of introduction of the application to the Court they were unemployed and not receiving any unemployment benefits, and were collecting scrap to make a living.","6.The Ca\u00f1ada Real Galiana was a route traditionally used for the movement and transhumance of livestock (v\u00eda pecuaria). It crossed the Autonomous Region of Madrid through the municipalities of Coslada, Getafe, Madrid, Rivas-Vaciamadrid and San Fernando de Henares. Until the entry into force of the Ca\u00f1ada Real Galiana Act (see paragraph 42 below), the route\u2019s legal status was defined as a property of \u201cpublic domain\u201d (public property allocated for general use or public service) of the Autonomous Region of Madrid. The route partly ran through a natural area, and was classified as land for protection of livestock routes which could not be developed (suelo no urbanizable). Any private use or construction activity was forbidden. Despite this, particularly from the 1960s, many slum houses were illegally erected in the area as the livestock route had fallen into disuse. A population census undertaken in 2011 \u2013 as required by the Ca\u00f1ada Real Galiana Act \u2013 estimated a population of more than 5,000 people only in the section of the Ca\u00f1ada Real Galiana located within the Municipality, mainly Spanish (and some foreign) nationals of Roma ethnicity (approximately 40%) followed by other Spanish nationals (27.2%) and then Moroccan nationals (26.1%). This census also reported high rates of unemployment and low incomes. Some 12% of the people living in this area were in a situation of \u201cextreme vulnerability\u201d. The overall population of the settlement was estimated at more than 7,000 people when those living within the Municipalities of Coslada and Rivas-Vaciamadrid were included.","7.The settlement was tolerated by the relevant authorities for many years. However, mainly from the year 2005 onwards, the Municipality started to systematically take measures against unlawful construction, initiating a large number of administrative proceedings against occupants of unauthorised buildings in order to restore legality. The municipal authorities argued that, in addition to the unlawful occupation of public property, the continuing building of illegal dwellings in the area was causing problems of public order, safety and security as well as health, educational and social problems. In 2013 the Municipality (temporarily) suspended all demolition of unlawful construction on the Ca\u00f1ada Real Galiana, and the proceedings to enforce them, with the purpose of giving stability and tranquillity to families in view of the ongoing process to find a final and comprehensive solution to the special problems of the Ca\u00f1ada Real Galiana (see paragraphs 42 and 43 below). It appears that (at the time of the adoption of the present judgment) the suspension has not yet been lifted.","8.On 17 March 2005, in the course of a regular inspection of the area, a municipal police officer noticed the non-authorised construction of a house in the Ca\u00f1ada Real Galiana (plot no. 40-A) by the first applicant. The police officer issued a formal warning (denuncia) to the first applicant \u2013 handing over a copy to him in person \u2013 and reported it to the relevant authorities. As a result, on 1 April 2005 the authorities of the Municipality ordered the first applicant to immediately suspend the work, warning him of the consequences of non-compliance \u2013 namely sealing off the premises, imposing a fine or requesting that the prosecutor\u2019s office bring criminal proceedings. The order was personally served on the first applicant\u2019s brother on 9 April 2005. The notification included information on the available (administrative and judicial) remedies against the decision. The first applicant however failed to avail himself of such remedies.","9.On 7 May 2005 the first applicant was personally served with a decision of the Municipality of 28 April 2005 stating that the construction was being carried out without the requisite planning permission on land reserved for protection of livestock routes, and that it could not be legalised as it did not meet the urban-planning regulations. The first applicant was given a fifteen-day time-limit for making comments on the demolition of the building in accordance with section 194(2) of the Autonomous Region of Madrid Land Act (see paragraph 39 below). The first applicant failed to submit any observations in that connection.","10.On 23 June 2005 the Director General for Urban Planning issued a demolition order. It obliged the first applicant to demolish the building within fifteen days, and warned him that failure to do so would prompt the authorities to enforce the order at his expense. It was personally served on the first applicant on 5 July 2005. The notification included information on the available (administrative and judicial) remedies against the decision. The first applicant failed to avail himself of them.","11.On 24 November 2005 the municipal authorities noted that the first applicant had not voluntarily complied with the demolition order and estimated that the cost to enforce the demolition would amount to 10,767.12euros (EUR).","12.On 28 February 2006 the authorities decided to initiate proceedings to enforce the demolition order and granted a fifteen-day time-limit for the first applicant to make comments in defence of his rights. The decision was personally served on the second applicant on 7 March 2006. The applicants failed to submit any observations in this connection.","13.On 14 July 2006 municipal police officers reported and documented the building of an extension and upgrades to the applicants\u2019 dwelling, including the building of a new floor.","14.As the applicants had failed to comply with the demolition order, on 29November 2006 the relevant authorities ordered the enforcement of the demolition, which was later scheduled for 29 January 2007. The notification of that decision to the first applicant included information on the available (administrative and judicial) remedies against the decision. After unsuccessful attempts to serve the decision at the applicants\u2019 dwelling, it could only be personally served on the first applicant on the same date set for enforcing the demolition order (29 January 2007). In view of this, and having regard to the fact that the applicants were effectively living in the dwelling and did not give consent to entering their home, the demolition was not carried out. The applicants did not make use of any of the remedies available to them under domestic law to challenge the aforementioned decision to enforce the demolition.","15.The authorities then requested judicial authorisation to enter the applicants\u2019 home with a view to carrying out their eviction and the subsequent demolition of the dwelling. The application was assigned to the Madrid Administrative Court no. 7, which invited the first applicant to submit observations \u2013 that invitation was only served through posting on the court\u2019s notice board after unsuccessful attempts to serve it through other means. On 12September 2007 the court authorised entry into the applicants\u2019 home (decision no. 659\/07). The court, making reference to case-law of the Supreme and Constitutional Courts, clarified the scope of the instant set of proceedings. It noted that their purpose was not to conduct an exhaustive review of the administrative decisions intended to be enforced \u2013 remedy which was available by bringing an application for judicial review with the relevant administrative court as provided for by law \u2013 but to examine firstly whether the administrative decision appeared prima facie to have been rendered in accordance with the law (appearance of legality), and secondly the proportionality of the measure requested to the effect that entry into a home was absolutely necessary to enforce the administrative decision. As to the particular circumstances of the case, and having regard to the limited scope of the proceedings, the court held that the administrative decisions had strictly complied with the law and the measure requested was proportionate. The court noted that the applicants had been duly served with the demolition order and the decision to initiate its enforcement, and that despite this they had failed to voluntarily leave the house within the time\u2011limit given to do so. It also highlighted that the applicants had not submitted observations on the authorities\u2019 applications within the framework of the instant judicial proceedings, despite the fact that they had been fully aware of them. Although the court decision itself expressly pointed out that the decision was subject to appeal before the Madrid High Court of Justice, the applicants did not contest the decision.","16.On 11 October 2007 the second applicant was personally served with a decision setting the exact date and time in which the demolition order would be enforced by public authorities. The presence of emergency services and police had been envisaged in anticipation of public disturbances. The municipal social services were also informed of the eviction, just in case the applicants required social support.","17.On 18 October 2007 the applicants were evicted and their home was demolished. The authorities reported serious incidents that had resulted in some people being injured, including a number of police officers. Some individuals were detained in the course of events. The expenses effectively incurred for the demolition amounted to EUR 4,708.17.","18.On 20 October 2007 municipal police officers reported that a large group of people had started rebuilding the applicants\u2019 dwelling. The police closely followed up and documented the situation during the following days. On 27 November 2007 a police officer issued a formal warning to the first applicant while he was carrying out work to rebuild the house \u2011handing over a copy to him in person \u2013, informing him of the illegality of his actions. The first applicant kept on rebuilding the house, disregarding the warnings given by the police. On 24 January 2008 municipal police officers reported that the house was practically rebuilt and that the first applicant claimed that he had been resident there while carrying out the work.","19.On 14 April 2008 the relevant municipal authorities adopted a decision requiring the first applicant to leave the dwelling and to demolish the work carried out to rebuild the house, within a non-renewable period of fifteen days. It also warned the first applicant that should he fail to comply with that obligation, a new judicial authorisation to enter his home would be requested with a view to evicting the family and demolishing the dwelling, at his expense and with the intervention of the police if need be. The decision was taken within the framework of the same administrative proceedings which had given rise to the demolition enforced on 18 October 2007. Accordingly, it stated that it was not subject to appeal on the grounds that it only reproduced the prior decision of 19 November 2006 ordering the enforcement of the demolition (see paragraph 14 above), which had become final. After unsuccessful attempts to personally serve the decision on the first applicant in his house \u2013 those staying there claimed not to know the first applicant \u2013 the decision was published in the Official Gazette of the Region of Madrid on 7 July 2008 and displayed on the notice board at the town hall of Madrid for a period of one month thereafter.","20.On 22 September 2008 municipal police officers reported that the applicants were effectively living in the house that had been rebuilt.","21.On 26 February 2009 the Governing Board (Junta de Gobierno) of the City of Madrid decided to apply for a new judicial authorisation to enter the applicants\u2019 home with a view to enforcing the demolition order. The relevant authorities submitted the application on 23 March 2009. However, on 2September 2009 the Madrid Administrative Court no. 8 decided to strike the application out and discontinue the proceedings (decision no. 1220\/09), on the basis that a person different from the first applicant (probably because of the unofficial addresses in the area) \u2013 who had claimed not to know him \u2013 had been notified of the authorities\u2019 application and, despite the court\u2019s request, the authorities had failed to submit observations in that connection. The court considered that it was no longer justified to continue the examination of the application. The authorities did not lodge an appeal against that decision and it accordingly became final.","22.On 23 October 2009 the municipal authorities again notified the first applicant of their decision of 14 April 2008 (see paragraph 19 above). This time it was personally served on him on 28 November 2009. On 12December 2009 the first applicant requested that the authorities send any further notifications to the professional address of his legal representative. He also claimed to be residing in the house in the Ca\u00f1ada Real Galiana together with the second applicant and their two children (five and two years old at the time).","23.On 1 February 2010 the authorities again required the first applicant to immediately vacate the dwelling. On 15 February 2010, following a request by the authorities, municipal police officers reported that the dwelling was still occupied by the applicants.","24.On 2 November 2010 the authorities applied for a new judicial authorisation to enter the applicants\u2019 home with a view to enforcing the demolition order of 23 June 2005 (see paragraph 10 above).","25.On 24 January 2011 the first applicant submitted observations on the application, arguing the following: (i) the demolition to be enforced had no legal basis and was therefore unlawful. The demolition order of 23 June 2005 had been effectively enforced on 18 October 2007, and no new demolition order had been issued after the applicants had built a new dwelling in the same location. Moreover, the first applicant claimed that a new decision of the City of Madrid\u2019s Governing Board to request authorisation to enter their home was required for instituting the instant proceedings. He also stated that he was going to lodge an application for judicial review of the decision of 14 April 2008 (see paragraph 19 above), and consequently the proceedings would be pending; (ii) the institutional context had varied significantly as a result of the agreement to find a comprehensive solution for the Ca\u00f1ada Real Galiana reached in 2009 by the Municipality and the other public bodies concerned. A draft Law \u2013 that could have an impact on the applicants\u2019 situation \u2013 was being prepared in this connection; (iii) the demolition carried out in 2007 had failed to comply with minimum guarantees on forced evictions, in contravention of international human-rights standards; (iv) the children were enrolled in a school located five hundred metres away from their home, and therefore the enforcement of the eviction and demolition would negatively affect their right to education and personal development. Alternatively, should entry into the applicants\u2019 home be authorised, the first applicant requested the suspension of the demolition until the school year had finished.","26.On 8 April 2011 the first applicant submitted additional observations, stating that any individual measure \u2013 such as the demolition of the applicants\u2019 home \u2013 carried out outside the general framework of the agreed solution for the Ca\u00f1ada Real Galiana provided by the Ca\u00f1ada Real Galiana Act (see paragraph42 below) \u2013 which had entered into force on 30March 2011 \u2013 would be unlawful, arbitrary and discriminatory. Accordingly, a decision granting authorisation to enter the applicants\u2019 home would be disproportionate and would amount to a breach of their right to respect for the home.","27.On 20 April 2011 the Madrid Administrative Court no. 30 authorised entry into the applicants\u2019 home with a view to carrying out the eviction and the demolition of the dwelling. It however upheld the applicants\u2019 request to grant authorisation only once the school year had finished.","The court firstly referred to the limited scope of the proceedings, noting that the authorities\u2019 request for judicial authorisation to enter the applicants\u2019 home had been necessary, prior to the enforcement of the measure, in the absence of consent to enter their home, in order to guarantee their right to respect for the home under Article 18 \u00a7 2 of the Constitution. The court was thus required to strike a balance between the interests at stake. In that connection, the court further noted that the instant judicial review was restricted to examining the appearance of legality of the administrative decision intended to be enforced, and to determining whether authorisation to enter the home in question was necessary.","Secondly, as to the particular circumstances of the case, and having regard to the limited scope of the proceedings, the court found that the demolition order had been in accordance with the law. It noted that the first applicant had had the opportunity to submit observations within the administrative proceedings; but having failed to contest the demolition order, it had become final. The enforcement of the demolition order was thus the result of the first applicant\u2019s failure to voluntarily comply with the order. The court also held that the first applicant had acted with complete disregard for the administrative and judicial decisions ordering the demolition of the illegal construction \u2013 by rebuilding the dwelling almost the day following its demolition \u2013 and had carried out actions intended at hindering compliance with the demolition order. The court furthermore found that the applicants\u2019 house had been unlawfully constructed, a status that had not been modified by the entry into force of the Ca\u00f1ada Real Galiana Act. Lastly, the court considered that the authorisation to enter the applicants\u2019 home was the only means to enforce the eviction and demolition order.","28.On 15 July 2011 the first applicant lodged an appeal against the decision authorising entry into his home. He firstly claimed that the decision had not given a response to some of his arguments, specifically to his claim that a new decision of the City of Madrid\u2019s Governing Board was required to initiate the instant proceedings. Secondly, the first applicant reiterated the argument that the demolition of the applicants\u2019 home was unlawful because it required a new demolition order. He also alleged other shortcomings in the administrative proceedings. Lastly, he claimed that non-compliance with urban-planning regulations could not serve as the basis for dismantling a settlement like the Ca\u00f1ada Real Galiana, which had been tolerated by the authorities for decades, particularly after the entry into force of the Ca\u00f1ada Real Galiana Act. He also stressed that any demolition outside \u201cthe process for social dialogue\u201d (acuerdo de contenido social) provided for by the Ca\u00f1ada Real Galiana Act would be unlawful, and that there were legal alternatives to the demolition of the applicants\u2019 only home.","29.On 28 July 2011 the relevant authorities of the Municipality declared inadmissible an application submitted by the first applicant requesting them to review the decisions of 14 April 2008 (see paragraph 19 above) and 1February 2010 (see paragraph 23 above), on the basis that such administrative decisions were unlawful as a result of the enactment of the Ca\u00f1ada Real Galiana Act. The authorities found that the application was not based on any of the grounds for review provided for by law. Although the inadmissibility decision was subject to both administrative and judicial review, the first applicant failed to avail himself of any remedies against it.","30.On 6 September 2011, starting at 5 a.m., the applicants were evicted and their home was demolished \u2013 according to the official report issued by the emergency services (SAMUR), the children (seven and four years old at the time) were sleeping in a relative\u2019s house. The eviction took place without incident. The applicants had not previously been informed of the date and time of the eviction to prevent serious incidents from happening, as those which had occurred during the eviction of 18 October 2007 (seeparagraph 17 above). The presence of the SAMUR \u2013 to provide assistance to the applicants \u2013 and a significant number of police officers \u2013 in anticipation of public disturbances \u2013 had been ordered. The presence of neighbours and other people from certain social movements gathering around the applicants\u2019 home, and the setting up of roadblocks on the access routes to the settlement, had been noted by the police in the weeks prior \u2011 which, together with the submission of the application for review referred to in the paragraph above, had caused the enforcement of the demolition, initially scheduled for 6 July 2011, to be delayed on several occasions. The municipal social services had also been requested in advance to inform the applicants about the public resources they could utilise with the aim of helping them ease the situation caused by the loss of their home. The SAMUR \u2013 present during the eviction \u2013 reported that the applicants had on the spot been offered emergency accommodation for a few days and social support while other (more permanent) solutions were being arranged with the district social services. The applicants reportedly refused emergency assistance, stating that they had support from their social network and family, with whom they would stay because they lived in the same area. As the applicants refused their assistance, the SAMUR informed them of the possibility to come back to them should they need any emergency assistance (such as accommodation, clothing or food) and referred the case to the municipal (primary) social services so they could follow up on the applicants\u2019 situation. Reportedly, the applicants never got back to the SAMUR. The expenses incurred for the demolition amounted to EUR 6,058.20.","31.By a judgment of 8 March 2012, the Madrid High Court of Justice (Administrative Chamber) dismissed the first applicant\u2019s appeal against the decision authorising entry into the applicants\u2019 home. The court firstly found that the decision of the City of Madrid\u2019s Governing Board to initiate the current proceedings had been valid and in accordance with the law, and accordingly no new decision was required. Secondly, it also held that the Ca\u00f1ada Real Galiana Act had no bearing on the State\u2019s authority to restore legality to urban areas, and had not derogated, or suspended the application of, the urban-planning regulations in force at the time. The Law had not granted the applicants the \u201cright to build\u201d (ius aedificandi). Lastly, the court noted that the first applicant\u2019s conduct had constituted an abuse of rights, and referred the case to the prosecutor\u2019s office to consider if his acts could have amounted to a criminal offence.","32.On 28 March 2012 the first applicant was served with a decision of the relevant authorities of the Municipality of 18 November 2011 requiring him to pay a total amount of EUR 10,766.97 for the expenses incurred by the authorities in carrying out the first and second demolitions (seeparagraphs 17 and 30 above). The first applicant lodged an application for judicial review, which was dismissed by the Madrid Administrative Court no. 4 on 28 January 2014. The applicants have failed to show, and it is not clear from the case file, whether they have paid that amount.","33.On 20 June 2012 the first applicant lodged an amparo appeal with the Constitutional Court, claiming that his and his family eviction and the demolition of their home had amounted to a violation of Article 18 \u00a7 2 of the Spanish Constitution (right to respect for the home) and Article 8 of the Convention. The first applicant argued that demolitions carried out in the Ca\u00f1ada Real Galiana outside the process for social dialogue set down in the Ca\u00f1ada Real Galiana Act \u2013 as in the present case \u2013 were contrary to law because they undermined the spirit and letter of that Act. After the entry into force of the Ca\u00f1ada Real Galiana Act, and particularly taking into account that unauthorised constructions within the Ca\u00f1ada Real Galiana had been tolerated by the authorities for decades, their eviction and the demolition of their home did not pursue a legitimate aim and was not necessary in a democratic society. In his view, the impugned measure was not proportionate owing to the fact that the Ca\u00f1ada Real Galiana Act provided for alternatives to the demolition of the applicants\u2019 only home. The first applicant stated that the impugned measure was discriminatory because it defacto excluded him from the process to tackle the problems of the Ca\u00f1ada Real Galiana initiated by the Ca\u00f1ada Real Galiana Act. Lastly, he submitted that their eviction had failed to comply with minimum guarantees on forced evictions.","34.The Constitutional Court dismissed the first applicant\u2019s amparo appeal in a judgment of 4 November 2013. The Constitutional Court started by reiterating the limited scope of the ordinary proceedings in similar terms as those expressed by the first- and second-instance judgments, noting that the role of the courts in authorising entry into the applicants\u2019 home had been limited to guaranteeing that such entry had been carried out after striking a balance between the rights and interests at stake and only if it had been strictly necessary. In this context, the Constitutional Court held that the courts had duly examined both the measure\u2019s accordance with the law and its proportionality. On the one hand, the Constitutional Court found that the instant situation and the alleged (and non-existent) formal defects in the administrative proceedings had been caused by the first applicant himself, who had rebuilt the dwelling the day following its demolition, knowing that doing so had been in breach of urban-planning regulations and that the administrative decisions had become final. The court noted that the first applicant should have challenged the merits of the administrative decisions given within the framework of the urban-planning procedure by lodging an application for judicial review. Having failed to do so, he could not seek their full review subsequently by contesting their enforcement and, in particular, the request for authorisation to enter their home. On the other hand, the Constitutional Court noted that the Ca\u00f1ada Real Galiana Act had only entered into force after the administrative decisions intended to be enforced by the public authorities had become final. It found that the authorisation to enter the applicants\u2019 home with a view to carrying out their eviction and the demolition of the dwelling had been proportionate and the only means to enforce the administrative decisions, which had been aimed at protecting the legal order of the city and which had become final. As an example, the Constitutional Court noted that the domestic courts had ensured the children\u2019s right to education by authorising entry in the applicants\u2019 home only after the school year had finished.","35.The Constitutional Court\u2019s judgment contained a dissenting opinion of two judges (of a five-judge panel), asserting that the amparo appeal should have been upheld. In short, the dissenting judges noted that the municipal authorities could have been more scrupulous in respecting the safeguards of the administrative procedure. For instance, they could have issued a new demolition order for the second demolition (instead of resorting to the one of 23 June 2005), could have adopted a new decision ordering the enforcement of the demolition order prior to requesting judicial authorisation to enter the applicants\u2019 home (instead of invoking that of 14April 2008), and could have indicated, without misleading, that the decision of 14 April 2008 had been subject to appeal. Furthermore, in respect of the impugned judicial decisions there had been a failure to duly assess the proportionality of the measure. Their approach had focused on the irregular nature of the building, failing to identify what the pressing social need justifying the measures or their urgency had been, and failing to consider the expectations created by the tolerance of the settlement or possible alternative measures. In their view, the decisions had not sufficiently weighed the relevance of the Ca\u00f1ada Real Galiana Act, whose entry into force should have automatically brought any ongoing eviction and demolition proceedings to a standstill, even in the absence of an express provision in the Law. The issue at stake had concerned a whole community and a settlement that had existed for a long period, and accordingly it should have been treated as being entirely different from routine cases of removal of an individual from unlawfully occupied property.","36.On 12 November 2007 the first applicant submitted a first application for social housing to the relevant body of the Autonomous Region of Madrid under a procedure established for people with special needs. He based the request on their eviction and the demolition of their home, and submitted a tax declaration in support of the application, reporting an annual income amounting to EUR 11,409. It appears that the request was not granted, yet the case file contains no information as to the grounds. This type of application for social housing had to be submitted on a yearly basis \u2013 if not granted, they needed to be submitted anew.","37.On 20 January 2011 the first applicant submitted a second application for social housing, this time arguing that the special needs were their living in substandard housing. He reported an annual family income of EUR 8,000 \u2013 reportedly obtained from scrap collection \u2013 but he did not submit a tax declaration as was required to apply for social housing. The application was considered to be incomplete, and the first applicant was accordingly requested to submit certain additional documents. He however failed to do so."],"209":["2.The applicant was born in 1955 and lives in Solihull. She was represented by Mr S. Cragg QC, a barrister practising in London.","3.The Government were represented by their Agents, Ms Anna McLeod and, subsequently, Mr Samuel Linehan, both of the Foreign and Commonwealth Office.","4.In August 2007 the applicant was convicted of failing to stop after a road traffic accident. She was fined and her driving licence was endorsed with five penalty points.","5.Some years later she was offered a teaching job in China and asked to provide an enhanced criminal record certificate (\u201cECRC\u201d). Pursuant to the legislation then in force, all previous convictions were subject to mandatory disclosure in criminal record certificates. An ECRC issued on 9January2013 disclosed her conviction. The applicant claimed in her application form that she was refused the job on account of the disclosure. However, in her later submissions to the Court she explained that in December2012 she had obtained a teaching post in China, where she remained until summer2014.","6.On 27 January 2013, the applicant complained to the Independent Police Complaints Commission (\u201cIPCC\u201d) about the conduct of the police during the investigation prior to her conviction and asked the IPCC to clear her name. By letter of 7 February 2013 the Professional Standards Department of the West Midlands Police replied that as she had pleaded guilty to the offence they could not expunge the information on her record. In subsequent correspondence she contested the claim that she had pleaded guilty and asked for evidence to be provided for the claim.","7.In May 2013 the rules concerning disclosure of criminal record information were amended (see paragraphs 15\u201117 below). Pursuant to the new rules, the applicant\u2019s conviction remained subject to mandatory disclosure in an ECRC until 31August 2018. It is no longer subject to mandatory disclosure."],"210":["2.The applicant was born in 1966 and lives in Megion, Khanty\u2011Mansiysk Region.","3.The Government were represented by Mr M. Galperin, the Representative of the Russian Federation at the European Court of Human Rights.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.On 11 October 2017 the applicant was apprehended by the Rosgvardiya officers on the territory of a school in Megeon, Khanty\u2011Mansiysk Region and transferred to the psychoneurological hospital (\u201cthe Hospital\u201d).","6.The admission report stated that the applicant had an acute mental disorder and that she was apprehended while screaming at the territory of a school, claiming herself to be children\u2019s defender and alleging that threedogs had been killed on the school premises.","7.On 12 October 2017 the applicant was examined jointly by the commission of the psychiatrists. Their report stated that the applicant was suffering from an organic schizophrenic disorder of unidentifiable origin and a maniac paranoid syndrome. It stated that an involuntary in-patient treatment was necessary, since the applicant\u2019s condition would aggravate in the absence of the psychiatric assistance. The applicant refused to be hospitalised.","8.On 13 October 2017 a medical counselling panel composed of the resident psychiatrists of the Hospital examined the applicant and diagnosed her with an organic schizophrenic disorder of unidentifiable origin and a maniac paranoid syndrome. The panel also found that the applicant\u2019s behaviour had affective disorders, paranoid symptoms and that there was a risk of aggravation of her psychiatric condition in the absence of psychiatric assistance.","9.On the same day the Hospital applied for judicial authorisation of the applicant\u2019s involuntary hospitalisation, since there was a risk of significant damage to her health owing to the deterioration or aggravation of her psychiatric condition in the absence of psychiatric assistance.","10.On 17 October 2017 the Meginsk Town Court of the Khanty\u2011Mansiysk Region authorised the applicant\u2019s involuntary hospitalisation.","11.The applicant appealed arguing that the Town Court had failed to substantiate that her condition was severe and that she posed a danger to herself or others.","12.On 19 December 2017 the appeal was dismissed by the Khanty\u2011Mansiysk - Yugra Regional Court.","13.On 19 January 2018 the applicant was discharged from the Hospital after an improvement in her mental state."],"211":["2.The applicant was born in 1964 and lives in Croydon. She was represented by Thomas Sanchez Solicitors, based in London.","3.The Government were represented by their Agents, Ms Anna McLeod and, subsequently, Mr Samuel Linehan, both of the Foreign and Commonwealth Office.","4.In May 1990, the applicant was given a six-month conditional discharge in respect of a criminal offence relating to property damage. At the time, she was advised by a police officer that the conditional discharge would be deleted from her criminal record after six months.","5.In January 2010, the applicant was asked by her employer to apply for an enhanced criminal record certificate (\u201cECRC\u201d). Pursuant to the legislation then in force, all previous convictions were subject to mandatory disclosure in criminal record certificates. On 11 July 2010, the conditional discharge appeared on the ECRC provided. The applicant was made redundant in April 2012 but does not claim that the disclosure of her conditional discharge was a factor in the redundancy.","6.On 13 July 2012, she wrote to the Metropolitan Police requesting the destruction of her fingerprints, DNA and the supporting entry on the Police National Computer (\u201cPNC\u201d). On 15 July 2012, the Metropolitan Police refused her request.","7.The applicant subsequently secured new employment. The conditional discharge was again disclosed in an ECRC issued on 22 August 2012. The applicant has not suggested that the disclosure had any impact on her employment.","8.Following the introduction of the present application, the applicant made a subject access request to the Association of Chief Police Officers (\u201cACPO\u201d) for information about her held on the PNC. The request was made pursuant to the Data Protection Act 1998 (see paragraph 17 below). In a letter from the ACPO dated 19 November 2015, the applicant was provided with a record of the information about her held on the PNC. This included details of the conditional discharge and the factual circumstances which had led to its imposition.","9.In May 2013 the rules concerning disclosure of criminal record information were amended (see paragraph 12 below). The applicant\u2019s conditional discharge was no longer subject to mandatory disclosure and did not appear on an ECRC issued on 5 June 2015."],"212":["11.In the Czech Republic, section 46(1) and (4) of the Public Health Protection Act (Z\u00e1kon o ochran\u011b ve\u0159ejn\u00e9ho zdrav\u00ed) (Law no. 258\/2000 Coll., as amended \u2013 \u201cthe PHP Act\u201d) requires all permanent residents and all foreigners authorised to reside in the country on a long-term basis toundergo a set of routine vaccinations in accordance with the detailed conditions set out in secondary legislation. For children under the age of fifteen, it is their statutory representatives (z\u00e1konn\u00fd z\u00e1stupce) who are responsible for compliance with this duty.","12.In the Czech constitutional order duties may be imposed only on the basis and within the bounds of the law (z\u00e1kon) and limitations on fundamental rights and freedoms may likewise only be imposed by the law, this term commonly being understood as an Act of Parliament.","13.The PHP Act is an Act of Parliament. Sections 46(6) and 80(1) provide for the adoption by the Ministry of Health (\u201cthe Ministry\u201d) of implementing legislation in relation to vaccination.","14.The Ministry issued the above-mentioned implementing measures in the form of the Decree on Vaccination against Infectious Diseases (Vyhl\u00e1\u0161ka o o\u010dkov\u00e1n\u00ed proti infek\u010dn\u00edm nemocem) (Decree no. 439\/2000 Coll., as amended \u2013 \u201cthe 2000 Ministerial Decree\u201d, in force from l January 2001 to 31 December 2006, and Decree no. 537\/2006 Coll., as amended, \u2013 \u201cthe 2006 Ministerial Decree\u201d, in force as from 1 January 2007, jointly referred to hereafter as \u201cthe Ministerial Decree\u201d).","15.Section 50 of the PHP Act provides that preschool facilities such as those concerned in the present case may only accept children who have received the required vaccinations, or who have been certified as having acquired immunity by other means or as being unable to undergo vaccination on health grounds. A similar provision appears in section 34(5) of the Education Act (Z\u00e1kon o p\u0159ed\u0161koln\u00edm, z\u00e1kladn\u00edm, st\u0159edn\u00edm, vy\u0161\u0161\u00edm odborn\u00e9m a jin\u00e9m vzd\u011bl\u00e1v\u00e1n\u00ed (\u0161kolsk\u00fd z\u00e1kon)) (Law no. 561\/2004 Coll., as amended).","16.The cost of vaccination is covered by public health insurance. The vaccines included in the list of specific vaccine variants for regular immunisation, which is published annually by the Ministry, are free of charge. Other vaccines can be used instead so long as they have been approved by the competent authority, but the cost is not covered by the State.","17.Under section 29(1)(f) and (2) of the Minor Offences Act (Z\u00e1kon op\u0159estupc\u00edch) (Law no. 200\/1990 Coll., as applicable at the relevant time \u2013 \u201cthe MO Act\u201d), a person who violates a prohibition or fails to comply with aduty provided for or imposed in order to prevent infectious diseases commits a minor offence punishable by a fine of up to 10,000 Czech korunas (CZK) (currently equivalent to nearly 400 euros (EUR)).","18.In the event of malpractice in administering a compulsory vaccination resulting in damage to the health of an individual who has been vaccinated, the person responsible may be held liable under the general law of tort to pay compensation in respect of the damage caused.","19.As regards damage to health resulting from a compulsory vaccine administered in compliance with the applicable rules and procedures (lege artis), until 31 December 2013 compensation could be claimed from the health professional who had performed the vaccination, on the basis of strict liability with no exonerating grounds under Article 421a of the then applicable Civil Code (Law no. 40\/1964 Coll., as amended). In the context of a recodification of the civil law, this form of action was abolished with effect from 1 January 2014. However, under new special legislation that took effect on 8 April 2020, the State may be held liable for such damage.","20.Aside from the issue of compensation in such circumstances, aperson suffering from any side-effects of the vaccines in question will be eligible for medical treatment, covered by public health insurance.","21.For further information on the relevant domestic law and practice, see paragraphs 65 to 93 below.","22.The applicant was born in 1965 and lives in Kutn\u00e1 Hora.","23.On 18 December 2003 the competent Disease Prevention and Control Centre (hygienick\u00e1 stanice) found him guilty of an offence under section 29(1)(f) of the MO Act for failure to comply with an order to bring his two children, then aged fourteen and thirteen, to a specified health-care establishment with a view to having them vaccinated against poliomyelitis, hepatitis B and tetanus. He was fined CZK 3,000 and ordered to pay CZK500 in respect of costs (i.e. the equivalent of some EUR 110 in total at the relevant time).","24.The applicant challenged the decision at the administrative level, before the courts and ultimately before the Constitutional Court. He argued that the regulations in question were contrary to his fundamental rights and freedoms, in particular the right to refuse a medical intervention (referring to Articles 5 and 6 of the Convention on Human Rights and Biomedicine, which forms part of the legal order of the Czech Republic and takes precedence over statute in case of conflict (see paragraph 141 below) \u2013 the \u201cOviedo Convention\u201d) and the right to hold and manifest his religious and philosophical beliefs. He opposed what he described as irresponsible experimentation with human health, emphasised the actual and potential side-effects of vaccines and argued that no risk to public health arose in his case, given that the last occurrence of poliomyelitis dated back to 1960, hepatitis B concerned only high-risk groups and tetanus was not transmissible among humans.","25.The applicant\u2019s cassation appeal was first dismissed by the Supreme Administrative Court (\u201cthe SAC\u201d) in a judgment of 28 February 2006. That judgment was however quashed by the Constitutional Court in aconstitutional judgment (n\u00e1lez) of 3 February 2011.","26.The Constitutional Court found that the SAC had failed to provide anadequate response to the applicant\u2019s claim that the impugned decision was contrary to his right to manifest freely religion or belief under Article16 of the Charter of Fundamental Rights and Freedoms (Listina z\u00e1kladn\u00edch pr\u00e1v a svobod) (Constitutional Law no. 2\/1993 Coll.). It observed that the vaccination duty as such (imposed on the applicant by the decision of 3 June 2003 implementing the 2000 Ministerial Decree) was not at stake in the case, since his constitutional appeal concerned the penalty for non-compliance with this duty, imposed on him under the MO Act by the decision of 18 December 2003. Accordingly, the Constitutional Court could not exercise its jurisdiction to review the constitutionality of the vaccination duty. In any event, it had no power to substitute the assessment by the legislature or the executive as to the infectious diseases against which compulsory vaccination was needed. That assessment was for the legislature to make having regard to Article 26 of the Oviedo Convention. It was of a political and expert nature and subject to arelatively wide margin of appreciation.","27.The Constitutional Court distinguished between making provision in law for compulsory vaccination and securing compliance with that duty. Compulsory vaccination amounted in principle to an admissible limitation on the fundamental right to manifest freely one\u2019s religion or beliefs, since it was obviously a measure necessary in a democratic society for the protection of public safety, health and the rights and freedoms of others. However, for an interpretation of that limitation to be in conformity with the constitutional requirements, it could not entail unconditional enforcement of the vaccination duty in respect of any person, irrespective of the individual aspects of or motivations for that person\u2019s resistance.","28.More specifically, the Constitutional Court held that:","\u201cA public authority deciding on the enforcement of the vaccination duty or on the penalty for non-compliance with it must take into account the exceptional reasons advanced by the claimant for refusing to undergo vaccination. If there are such circumstances which call, in a fundamental manner, for that person\u2019s autonomy to be preserved, while nevertheless maintaining an opposite public interest ..., and therefore for an exceptional waiver of the penalty for [non-compliance with] the vaccination duty, the public authority must not penalise or otherwise enforce the [said] duty. ...","The public authority, and then the administrative court in proceedings on anadministrative-law action, must take into account all the relevant circumstances of the case in its decision-making, in particular the urgency of the reasons claimed by the person concerned, their constitutional relevance, and the risk to society that may be caused by the conduct of the person concerned. The consistency and credibility of the claims of the person concerned will also be an important aspect.","In a situation where a specific person does not communicate with the competent public authority from the outset, and only seeks to justify his or her attitude in respect of vaccination at later stages in the proceedings, as a general rule the conditions that the person\u2019s attitude be consistent and that the constitutional interest in the protection of his or her autonomy be urgent would usually not be satisfied.\u201d","29.The Constitutional Court further held that if these criteria were to be applied to the specific facts of the applicant\u2019s case, the fulfilment of the criterion of consistency in his attitude appeared problematic. In that regard, it noted that he had given the reasons for his refusal to allow vaccination only at alate stage of the proceedings and that even at a hearing before the Constitutional Court, he had submitted that his reasons were primarily health-related as, in his view, vaccination was harmful to children, with any philosophical or religious aspects being secondary. However, the criteria were primarily for the SAC to apply, and the applicant\u2019s case was remitted to it for re\u2011examination.","30.In a judgment of 30 September 2011, the SAC dismissed the applicant\u2019s case.","In response to the Constitutional Court\u2019s directions, the SAC established that it had not been until a late stage in the proceedings that the applicant had relied, without further explanation, on the protection of his religious and philosophical convictions. He had subsequently explained his belief that he had the right to refuse compulsory vaccination for himself and his children on account of such convictions. However, he had not advanced any concrete argument concerning his religion and the degree of the potential interference caused by vaccination. The interest in protecting public health thus outweighed the applicant\u2019s right to manifest his religion or beliefs.","31.The final decision was given by the Constitutional Court on 24January 2013, dismissing the applicant\u2019s complaint against the judgment of 30 September 2011 as manifestly ill-founded.","32.The applicant was born on 12 October 2002. She was granted admission to a Montessori nursery school by a decision of 4 April 2006, when she was some three and a half years old.","33.On 10 April 2008 the principal of the establishment decided toreopen the admission procedure, having been informed by the applicant\u2019s paediatrician that \u2013 contrary to a previously submitted medical certificate of 15 March 2006 to the effect that she \u201chad received the basic vaccination\u201d \u2013 the applicant had not actually received the MMR (measles, mumps and rubella) vaccine. The reopened proceedings resulted in a decision of 14 July 2008 reversing, for lack of a required vaccination, the previous decision to admit the applicant to the establishment.","34.In her subsequent unsuccessful appeals at the administrative level and before the courts, as well as to the Constitutional Court, the applicant argued that an exception to the right protected under Article 5 of the Oviedo Convention (that any intervention in the health field be subject to free and informed consent) could not be provided for by secondary legislation, i.e. the 2006 Ministerial Decree. That Decree did not set an age limit for the MMR vaccination. With reference to \u201cstatistical information\u201d and the \u201copinion of experts\u201d, she contended that vaccination presented a risk to health and was not necessary in a democratic society. The decision of 14July 2008 was contrary to her interests and her right to education. She was prevented from continuing in the Montessori educational system unless she submitted to a medical procedure to which she did not consent.","35.The applicant\u2019s arguments were dismissed at all levels, the final decision being given by the Constitutional Court on 9 July 2013. Its conclusion can be summarised as follows.","36.To the extent that the applicant was challenging the legal basis for the vaccination duty, limitations to the guarantees under Articles 5 and 6 of the Oviedo Convention were provided for by an Act of Parliament (the PHP Act) setting out the duty to submit to routine vaccination, in respect of which only particular aspects such as the vaccine types and the conditions for administering them were set out in the 2006 Ministerial Decree adopted in application of that law. This arrangement satisfied the constitutional requirements that duties be imposed on the basis and within the bounds of the law (Article 4 \u00a7 1 of the Charter) and that limitations on fundamental rights and freedoms be imposed only by the law (Article 4 \u00a7 2 of the Charter). Any case-law inconsistencies in that regard had been resolved (see, in particular, paragraphs 85 et seq. below).","37.In so far as the applicant contested the need to protect public health by means of the vaccination at stake in her case, the objection was dismissed as unfounded. It was noted that she had raised no arguments whatsoever as regards any \u201ccircumstances which require in afundamental manner that the individual\u2019s autonomy be preserved\u201d within the meaning of the Constitutional Court\u2019s judgment in the Vav\u0159i\u010dka case (see paragraph28 above).","38.In that regard, the Constitutional Court specifically pointed out that effective protection of those fundamental rights that were in conflict with the public interest in the protection of health could be ensured through arigorous assessment of the individual circumstances of each case, rather than by calling into question the vaccination duty as such. In the applicant\u2019s case, the courts had duly examined and responded to her objections. She had failed toshow that on the facts of her case the duty to undergo the MMR vaccination amounted to a disproportionate interference with her fundamental rights. Nor had she established any circumstance that would have enabled her, in accordance with section 50 of the PHP Act, to be admitted to a nursery school without being vaccinated.","39.Leaving open the question whether attendance at a nursery school fell within the ambit of the right to education, the Constitutional Court nevertheless held that in a situation where the applicant\u2019s continued attendance was likely to put at risk the health of others, the public\u2019s subjective right to the protection of health took priority. Her non-admission to the nursery school was accordingly free from any error.","40.In addition, the applicant had prevented herself from being able toattend preschool by refusing to meet conditions which were identical for everyone, and had probably not acted in good faith when submitting aninaccurate medical certificate with her initial application for admission.","41.The applicant was born on 26 September 2008. At a young age, he suffered from various ailments and did not receive any vaccinations. He claimed that his parents had never actually refused to have him vaccinated and that the failure to vaccinate him was due to the lack of an individualised vaccination recommendation from his paediatrician.","42.When applying for admission to nursery school, his paediatrician certified in the relevant form that the applicant had not been vaccinated. The form also contained the following handwritten text: \u201c[the applicant] is not lacking any routine vaccination required under the law\u201d. It was later established by the authorities, and not disputed by the applicant, that the handwritten text had been added by someone other than the paediatrician.","43.By a decision of 27 June 2011, the applicant was refused admission to the nursery school pursuant to section 50 of the PHP Act because he had failed to prove that he had been vaccinated. His administrative appeal was dismissed, the authority having established through telephone contact with the paediatrician that there had been no relevant change in the situation since the above-mentioned certificate had been issued.","44.The applicant further pursued his case through an administrative-law action and a cassation appeal, arguing principally that he had fulfilled all the statutory admission requirements, since \u2013 given that he had not received any individualised vaccination recommendations \u2013 he could not be regarded as missing any vaccination required by law. The authorities had failed toestablish the opposite. It had been arbitrary and contrary to his right to protection of personal information for them to have obtained further information from his paediatrician by telephone. He had been deprived of the opportunity to comment. It was apparent that no minor offence had been committed in connection with his vaccination status, as no proceedings had been brought in that respect.","45.His appeals were dismissed, inter alia on the grounds that although the administrative appeal authority had obtained information from the paediatrician by an extraordinary channel, the applicant had had access to the case-file and the contested decision was based solely on facts of which he had been aware. Moreover, under section 50 of the PHP Act the relevant criterion for being admitted to nursery school was whether or not the vaccination duty had been complied with, and not the reasons for possible non-compliance. Finally, the applicant had not even argued that there were any \u201ccircumstances which require in a fundamental manner that the individual\u2019s autonomy be preserved\u201d, within the meaning of the Vav\u0159i\u010dka jurisprudence (see paragraph 28 above), nor had he relied on any of his fundamental rights.","46.In his ensuing constitutional appeal, the applicant alleged a violation of his rights under Articles 6 \u00a7 1 (fairness) and 8 (private and family life, in particular the right to personal development) of the Convention, essentially on the same grounds as before the lower courts. He argued that these courts had failed to assess the medical necessity of the vaccinations he had been required to undergo. In addition, \u201cfor the sake of completeness\u201d he submitted specifically that since his parents had not refused to have him vaccinated, they could not be blamed for failing to justify their refusal on the grounds of their beliefs or convictions.","47.On 7 May 2014 the Constitutional Court rejected the appeal as manifestly ill-founded, noting that the courts had duly examined all the relevant elements and endorsing their conclusions.","48.The applicants were born on 11 and 16 May 2011 respectively. Their parents refused to have them vaccinated. It was later noted by the authorities that in their application for admission to nursery school they had submitted a certificate issued by their paediatrician to the effect that they had not been vaccinated on account of their parents\u2019 beliefs and convictions.","49.On 2 May 2014 they were refused admission to nursery school with reference to the Vav\u0159i\u010dka jurisprudence (see paragraph 28 above) and on the grounds that compulsory vaccination amounted to an acceptable restriction on the right to manifest one\u2019s religion or beliefs freely, since it was necessary for the protection of public health and of the rights and freedoms of others.","50.The applicants challenged that decision through an administrative appeal and through an administrative-law action against the subsequent dismissal of that appeal.","51.Together with their administrative-law action, on 18 July 2014 the applicants requested the Hradec Kr\u00e1lov\u00e9 Regional Court to adopt aninterim measure authorising them to attend a given nursery school from 1September 2014 pending the outcome of the proceedings on the merits of that action. They argued that they would otherwise be liable to serious harm, consisting in discrimination against them and a limitation of their personal development and access to preschool education. They asserted furthermore that their admission could not pose any risk to the other children who had been vaccinated, and that many adults were not, or were no longer, immunised against the illnesses in question.","52.On 13 August 2014 the Regional Court dismissed the request for aninterim measure. It noted that there was no right, as such, of admission to preschool and that such admission was subject to conditions, including that set out in section 50 of the PHP Act. Non-admission was thus envisaged by law and was not a rare occurrence, especially on account of the lack of available places. Accordingly, the impugned decision could not have entailed a serious type of harm justifying the adoption of an interim measure.","53.Relying on Article 6 of the Convention, the applicants challenged this judgment by way of a constitutional appeal. At the same time, they requested the Constitutional Court itself to adopt an interim measure similar to that previously requested from the Regional Court.","54.On 23 October 2014 the Constitutional Court dismissed both the applicants\u2019 constitutional appeal and their request for an interim measure as manifestly ill-founded. Emphasising that the proceedings on the merits were still ongoing at the relevant time, it considered that the dismissal of the requests for interim measures had not entailed constitutionally unacceptable consequences. Moreover, the applicants had not demonstrated that it was necessary to adopt interim measures, and the Regional Court\u2019s reasoning in that respect was logical, understandable and relevant.","55.Once the Constitutional Court had resolved the matter of the interim measure, it remained to determine the merits of the applicants\u2019 administrative-law action. This was dismissed in a judgment of the Regional Court of 10 May 2016. Although further appeals were available, the applicants did not pursue the matter any further.","56.The applicant was born on 9 April 2008. His parents, who are biologists, decided to draw up an individual vaccination plan for him. As aresult, he was vaccinated later than provided for by the applicable rules and was not vaccinated against tuberculosis, poliomyelitis or hepatitis B, and did not receive the MMR vaccine.","57.On 22 and 30 April 2010 the principals of two nursery schools refused him admission under section 50 of the PHP Act.","58.In his subsequent unsuccessful appeals at the administrative level and before the courts, including the Constitutional Court, the applicant argued, inter alia, that there had been a violation of his right to respect for private and family life, his right to education and his right not to be subjected to discrimination. No account had been taken of his parents\u2019 convictions in pursuing his best interests, or of the principle of proportionality. Section 50 of the PHP Act should be set aside. The interference with his rights had been disproportionate, and less radical measures had been available to allow for the protection of public health. His non-admission had had repercussions for the entire family, in that his mother had been obliged to stay at home to look after him.","59.The applicant\u2019s arguments were dismissed on grounds that can be summarised as follows, the key decisions being given by the Constitutional Court on 27 January 2015 (validity of section 50 of the PHP Act) and 25March 2015 (merits of the applicant\u2019s individual case).","60.Section 50 of the PHP Act did not breach in any way the rule that some matters were to be regulated solely by an Act of Parliament. It laid down acondition for being admitted to day-care or preschool facilities, with reference to section 46 of the PHP Act. The latter provision defined the scope and content of the underlying duty. To the extent that the applicant might be understood as wishing to challenge the vaccination duty as such, this was beyond the scope of his challenge to section 50 of the PHP Act and should have been raised separately. As this had not been done, the Constitutional Court was prevented from reviewing the vaccination duty in the present proceedings. Nevertheless, its constitutionality had already been examined and upheld in another judgment in an unrelated case, namely no.Pl. \u00daS 19\/14, concerning a different consequence (a fine) of a breach of the vaccination duty (see paragraphs 90 et seq. below).","61.Having an individual vaccination plan did not fall within any of the discrimination grounds provided for by law. Contrary to the applicant\u2019s suggestion, non-admission to nursery school was not a penalty. As regards proportionality, the applicant had not referred to any exceptional circumstances to outweigh the interest of the protection of public health, within the meaning of the Vav\u0159i\u010dka case-law (see paragraph 28 above).","62.The detailed content of the right to education under Article 33 of the Charter was set out in the Education Act (see paragraphs 80 seq. below) and pertained to all types and levels of education. In the Constitutional Court\u2019s view, this included preschool education, as this involved a process of acquiring skills, attitudes and knowledge, rather than just childcare or child\u2011minding. A limitation on that right, consisting in a requirement of compliance with the vaccination duty, did not suppress the very essence of the right and clearly pursued the legitimate aim of protecting public health. Moreover, the means provided for achieving this aim were rational and free from any arbitrariness. Vaccination represented an act of social solidarity on the part of those accepting a minimum risk in order to protect the health of society as a whole. This was all the more valid as the number of vaccinated children attending preschool establishments grew.","63.Lastly, with reference to the considerations mentioned in the preceding paragraph as well as in the other constitutional judgment mentioned above (case no. Pl. \u00daS 19\/14), the Constitutional Court found that the lower courts\u2019 conclusions in the proceedings brought by the applicant had anadequate basis in findings of fact and were supported by cogent reasoning. There had accordingly been no breach of the applicant\u2019s fundamental rights.","64.The judgment of 27 January 2015 concerning the validity of section50 of the PHP Act was adopted by a majority. A dissenting judge attached a separate opinion, in which she considered, inter alia, that the scope of the vaccination duty extending to nine diseases as a requirement for admission to the preschool system was excessive and that the existing regulations infringed the applicant\u2019s basic rights. In her view, linked as it was to the public debate on the possible harmful effects of vaccination, the judgment of the plenary formation had limited itself to general statements about solidarity."],"213":["The applicant, Mr \u0130skender Do\u011fan, is a Turkish national, who was born in 1959 and lives in Denizli. He was represented before the Court by Mr M.R. \u0130nal, a lawyer practising in Ankara.","The circumstances of the case","The facts of the case, as submitted by the applicant, may be summarised as follows.","On 18 January 2012 the applicant applied to the Social Security Institution (\u201cthe SGI\u201d) for retirement pension.","On 2 February 2012 the SGI granted the applicant a retirement pension under the social security scheme regulated in Section 4 (1) (a) of Law no. 5510.","On 28 December 2012 the SGI revoked the applicant \u2019 s pension on the grounds that the applicant had been granted the retirement pension as a result of an incorrect calculation, indicating that social security scheme, under which the applicant could have sought a pension, had needed to be determined in conformity with Section 8 of the Law no. 2829, according to which the old age pension and other social security benefits of persons who had worked under different social security schemes over the years were to be governed by the scheme under which the concerned person had worked the longest in the last seven years of actual working term prior to retirement. The SGI maintained that the applicant had worked longer in affiliation to the social security scheme under Section (4) (1) (b) of Law no. 5510 than the social security scheme under Section (4) (1) (a) of the same Law in the last seven years of actual working term. The SGI further established that the applicant was to repay it the retirement pensions that he had received, namely 9,266.44 Turkish liras (\u201cTRY\u201d) (equivalent of approximately 3,940 euros (EUR) at the material time), without interest provided that he paid it within twenty-four months after he was notified of the order of repayment.","On 27 February 2013 the applicant took an action before the Denizli Labour Court seeking for continuation of his retirement pension and annulment of the administrative decision concerning repayment of the retirement pensions that he had received.","On 15 October 2014 the Denizli Labour Court found for the applicant, indicating that he had worked the longest in affiliation to the social security scheme under Section (4) (1) (a) of Law no. 5510 in the last seven years prior to his application to the SGI for retirement pension.","On 3 December 2015 the Court of Cassation quashed the judgment of the first instance court on the basis that the term of \u201cseven years of actual working term\u201d had not amounted to calendar year but total of the days equivalent to seven years on which the applicant had actually worked, that the applicant had therefore failed to meet the requirement to have worked longest in affiliation to the social security scheme regulated in Section (4) (1) (a) of Law no. 5510 in the last seven years of actual working term, for entitlement to a retirement pension.","On 2 November 2016 the Denizli Labour Court of First Instance decided to comply with the findings of the Court of Cassation and dismissed the applicant \u2019 s case with the same reasoning.","On 25 January 2018 the Court of Cassation upheld the judgment of the Denizli Labour Court dismissing the applicant \u2019 s case.","On 9 March 2018 the applicant lodged an individual application with the Constitutional Court under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.","On 8 July 2019 the Constitutional Court found the applicant \u2019 s complaints about his right to fair hearing and his right to peaceful enjoyment of his possessions inadmissible for being manifestly ill-founded.","As to the applicant \u2019 s complaint about the length of proceedings, the Constitutional Court held that that compliant had been inadmissible for non-exhaustion of domestic remedies in view of the new domestic remedy established by Law no. 6384 for complaints concerning, inter alia, the length of proceedings.","Meanwhile, in July 2019 the applicant was granted a retirement pension under Section (4) (1) (b) of Law no. 5510 as he fulfilled the conditions for a retirement pension under that scheme."],"214":["2.The applicant was born in 1972 and lives in Miramas (France). He was represented by Ms I.Abramyan, a lawyer practising in Pyatigorsk.","3.The Government were represented by Mr G.Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by Mr M.Galperin, his successor in that office.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant is married to Ms I.Kh. It appears that the latter kept her maiden surname, Kh., after she married the applicant. They are raising their four children together \u2013 M.N., born in 1996; T.N., born in 1997; V.N., born in 2005, and Va.N., born in 2007.","6.At the relevant time the applicant and his family lived in the village of Pyatigorskiy, in the Stavropol Region of Russia.","7.On 2 September 2004 the applicant brought his wife, who he believed was approximately six months pregnant, to the Pyatigorsk maternity hospital, as she was showing symptoms of premature labour. It does not appear that prior to that moment, the applicant\u2019s wife\u2019s pregnancy had been monitored by doctors.","8.Later that day Ms I.Kh. gave birth to a baby boy, V., the third child in her and the applicant\u2019s family at that time.","9.As Ms I.Kh. later alleged, doctors of the Pyatigorsk maternity hospital had dissuaded her from having a look at the baby and stated that, having been born long before term, he was very weak and had very poor prospects of survival. Being in a state of shock and distress, the applicant\u2019s wife decided to abandon the baby in the maternity hospital.","10.On 3 September 2004 Ms I.Kh. gave her written consent to her newly born son\u2019s adoption (\u0437\u0430\u044f\u0432\u043b\u0435\u043d\u0438\u0435 \u043e \u0441\u043e\u0433\u043b\u0430\u0441\u0438\u0438 \u043d\u0430 \u0443\u0441\u044b\u043d\u043e\u0432\u043b\u0435\u043d\u0438\u0435). In particular, she filled in and signed a standard form, in which it was stated in print, among other things, that the legal consequences of giving the child up for adoption had been explained to her, and that the consent was voluntary. She also filled in and signed a similar consent form on the applicant\u2019s behalf, having changed her handwriting and imitated his signature. Ms K., the then chief medical officer (\u0433\u043b\u0430\u0432\u043d\u044b\u0439 \u0432\u0440\u0430\u0447) of the Pyatigorsk maternity hospital, certified those forms with her signature and an official stamp.","11.On the same day the applicant came to see his wife in the maternity hospital. According to him, the doctors informed him that Ms I.Kh. \u201chad miscarried\u201d. For her part, Ms I.Kh. explained to him that she had given birth prematurely to a baby boy, who had died shortly afterwards. The applicant and Ms I.Kh. then left the hospital. It does not appear that either the applicant or his wife saw the newborn child at any moment.","12.In reality, the boy survived and remained in the care of the maternity hospital.","13.On 28 September 2004 a competent authority issued a birth certificate for V., on which the applicant and Ms I.Kh. were indicated respectively as his father and mother. V.\u2019s patronymic, \u201cZavenovich\u201d, reflected the applicant\u2019s first name, whereas V.\u2019s surname, Kh., corresponded to the maiden surname of his mother, Ms I.Kh.","14.On 18 October 2004, by virtue of a local authority\u2019s decision, V. was transferred to an infant foster home.","15.At some point in July 2005 Mr S. and Ms Ch. visited the foster home, seeking a child for adoption. They saw V. and decided to adopt him.","16.By a decision of the Head of the Town Administration of Zh. dated 26 July 2005, MsCh. was appointed V.\u2019s legal guardian. The decision stated, inter alia, that V. had been abandoned by his parents, who, in separate written statements dated 3 September 2004, had each expressed their consent to his potential adoption.","17.On 27 July 2005 Mr S. and Ms Ch. took V. from the foster home to their home address in the town of Zh. in the Stavropol Region of Russia, where the boy has been living with them ever since.","18.On 4 April 2006 the Zh. Town Court examined an application for V.\u2019s adoption lodged by Mr S. and Ms Ch. The court noted that V. had been abandoned by his mother in the Pyatigorsk maternity hospital, that since July 2005 he had been living with Mr S. and Ms Ch., the latter being his legal guardian, that the case file contained written statements by V.\u2019s parents expressing their consent to his adoption, and that a local childcare authority had carried out a relevant check and had given a favourable opinion to V.\u2019s adoption by Mr S. and Ms Ch. The court thus granted them the full adoption of V. and ordered that V.\u2019s surname and patronymic be changed to reflect MrS.\u2019s surname and first name respectively. It also ordered that V.\u2019s place of birth be changed to that of Zh.","19.The judgment was not appealed against and became final on 15April 2006.","20.In the meantime, on 10 March 2006 the applicant received a copy of a request by Ms Ch. for him to be deprived of his parental authority over V. in the context of the proceedings for V.\u2019s adoption by Mr S. and Ms Ch. Acopy of the statement allegedly written and signed by him on 3September 2004 (see paragraph 10 above) was enclosed. In the applicant\u2019s submission, he had never consented either orally or in writing to the relinquishment of his parental authority over V. or to the latter\u2019s adoption and, until that moment, he had remained unaware of the fact that his son was alive.","21.On 12 March 2006 the applicant arrived at a district court in an attempt to obtain information about V. There he was allegedly told that MsCh. had withdrawn her request. He then found her and Mr S. at their registered home address, and they confirmed that his son V. was alive and stated that they were his legal guardians. According to the applicant, Mr S. and Ms Ch. showed him the boy but strongly opposed all his attempts to establish any contact with V.","22.By a court decision of 4 April 2006 Mr S. and Ms Ch. were granted the full adoption of V. (see paragraph 18 above).","23.On 17 May 2006 the applicant requested the Zh. Custody and Guardianship Agency (\u043e\u0442\u0434\u0435\u043b \u043e\u043f\u0435\u043a\u0438 \u0438 \u043f\u043e\u043f\u0435\u0447\u0438\u0442\u0435\u043b\u044c\u0441\u0442\u0432\u0430 \u0433.\u0416.) to have MsCh.\u2019s guardianship over V. revoked and to order V.\u2019s transfer to his family. The Agency refused the request, with reference to the judgment of 4April 2006.","24.On 18 May 2006 the applicant complained to the Zh. prosecutor\u2019s office. He stated that he had been unaware that his son was alive and had been placed in a foster home after his birth, and that he had never made any written statements relinquishing his parental authority over the boy or consenting to his adoption. The applicant then described his unsuccessful attempts to recover his son and requested the prosecutor\u2019s office to investigate the forgery of his written statement of 3 September 2004, to lodge an application on his behalf for the reopening of the proceedings for V.\u2019s adoption and for a review of the relevant judgment on account of newly discovered circumstances, and to institute court proceedings on his behalf for restoration of the original information about V.\u2019s parents, date and place of birth in his birth certificate.","25.In the context of an inquiry by the Zh. prosecutor\u2019s office at the applicant\u2019s request, an expert handwriting examination was ordered and carried out. In a report of 27 May 2006 the expert confirmed that the statement of 3 September 2004 had been written and signed by a person other than the applicant.","26.The relevant material was transferred to the Pyatigorsk Office of the Interior for a further inquiry. The inquiry established that it was the applicant\u2019s wife, Ms I.Kh., who had written the statement of 3 September 2004 instead of him and forged his signature.","27.On 30 June 2006 the Pyatigorsk Office of the Interior decided not to institute criminal proceedings against Ms I.Kh. for \u201cforging an official document\u201d, as she had written the document in question immediately after childbirth, and therefore while she had been in a vulnerable state, particularly in view of the doctors\u2019 statement to the effect that the boy had been very weak and would not survive. The decision also stated that the document in question was \u201ca personal statement\u201d rather than an \u201cofficial document issued by a State body or authority\u201d.","28.On 9 June 2006 the Zh. prosecutor\u2019s office applied, on the applicant\u2019s behalf, to the Zh. Town Court with a view to having the proceedings for V.\u2019s adoption by Mr S. and Ms Ch. reopened and the relevant judgment reviewed.","29.The court proceedings were then reopened and the Zh. Town Court examined anew the application by Mr S. and Ms Ch. for V.\u2019s adoption.","30.In a judgment of 12 July 2006 the court rejected their application. It referred to the relevant provisions of national law stating that the biological parents\u2019 formal explicit consent to their child\u2019s adoption was indispensable (see paragraph 150 below). It further noted, with reference to the findings of the inquiry carried out by the competent law-enforcement bodies (see paragraphs 25-27 above), that it was the applicant\u2019s wife who had written the statement of 3 September 2004 instead of the applicant, and that the applicant himself had never given his consent to V.\u2019s adoption by third parties, nor had he ever been deprived of his parental authority or declared legally incapacitated. The court concluded that, in the absence of the applicant\u2019s explicit consent to V.\u2019s adoption by third parties, there were no grounds to grant the application by Mr S. and Ms Ch.","31.On the same date the Zh. Town Court issued a special ruling (\u0447\u0430\u0441\u0442\u043d\u043e\u0435 \u043e\u043f\u0440\u0435\u0434\u0435\u043b\u0435\u043d\u0438\u0435) in respect of the chief medical officer of the Pyatigorsk maternity hospital, stressing that that official had certified the parents\u2019 consent to V.\u2019s adoption (see paragraph 10 above) in breach of the requirements of Article 129 of the Russian Family Code (see paragraph 150 below). According to the Government, Ms K. was dismissed from the post of chief medical officer of the Pyatigorsk maternity hospital on 16December 2005 \u2013 that is, prior to adoption of the special ruling in question.","32.Mr S. and Ms Ch. appealed against the judgment of 12 July 2006. They pointed out, in particular, that they had been raising V. in their family since July 2005, that the applicant had come to them in March 2006 in order to see the child as he had doubted that the boy was his son, and that they had informed the applicant at that moment that their application for V.\u2019s adoption was pending before a court. However, before the judgment of 4April 2006 on V.\u2019s adoption by Mr S. and Ms Ch. had been delivered, the applicant had not made any attempts to join the proceedings, and it was not until 17 May 2006 that he had finally applied to a prosecutor\u2019s office. Mr S. and Ms Ch. further argued that Ms I.Kh. had, in fact, not participated in the proceedings while they had been pending before the first-instance court, having attended only one hearing, a fact that, in their view, was indicative of the absence of her interest in V.\u2019s fate. They also argued that the applicant\u2019s allegation that V. had been born at a gestational age of approximately six months \u2013 that is, long before term \u2013 and had therefore been very week stood in conflict with an extract from V.\u2019s medical file (\u0432\u044b\u043f\u0438\u0441\u043a\u0430 \u0438\u0437 \u0438\u0441\u0442\u043e\u0440\u0438\u0438 \u0440\u0430\u0437\u0432\u0438\u0442\u0438\u044f) stating that at birth he had weighed 3.150 kg and measured 50cm, those being characteristics of a baby born at term. With reference to those discrepancies, Mr S. and Ms Ch. expressed their doubts that the applicant and his wife were V.\u2019s biological parents and stated that the first-instance court could have resolved those discrepancies by examining relevant medical documents from the Pyatigorsk maternity hospital and by ordering a genetic expert examination, but it had failed to do so.","33.On 23 August 2006 the Stavropol Regional Court upheld the judgment of 12 July 2006 on appeal, rejecting the arguments of Mr S. and Ms Ch. The court noted, in particular, that the scope of their claim was limited to their application for V.\u2019s adoption, and that they had never challenged before the first-instance court the authenticity of V.\u2019s birth certificate, or the applicant\u2019s paternity. Moreover, Mr S. and Ms. Ch. had not adduced any evidence to corroborate their allegations, or sought the courts\u2019 assistance to that end. Against that background, the Stavropol Regional Court saw no reason to order a genetic expert examination or to question the authenticity of V.\u2019s birth certificate. In its view, there were no grounds to doubt the fact that the applicant and Ms I.Kh. were V.\u2019s biological parents. It considered it proven, with reference to the facts as established by the first-instance court, that the applicant had never relinquished his parental authority over V. The court concluded therefore that there were no legal grounds to grant the application by Mr S. and Ms.Ch. for V.\u2019s adoption.","34.According to the applicant, after the court decisions refusing V.\u2019s adoption by Mr S. and Ms Ch. had been given, he applied to the courts in an attempt to get his son back. Mr S. and Ms Ch. refused to return the boy, with reference to the administrative decision of 26 July 2005, by which MsCh. had been appointed V.\u2019s legal guardian and which was still in force (see paragraph 16 above).","35.The applicant then requested the Zh. Custody and Guardianship Agency to have the decision of 26 July 2005 invalidated.","36.On 21 September 2006 the head of the municipal administration of Zh., with reference to the decision of the Pyatigorsk Office of the Interior dated 30 June 2006 (see paragraph 27 above) and the judgment of 12 July 2006 (see paragraph 30 above), invalidated the decision of 26 July 2005 and revoked Ms Ch.\u2019s guardianship in respect of V. Ms Ch. challenged that decision before the courts. On 23 March and 25 May 2007 respectively the courts at two levels of jurisdiction upheld the administrative decision of 21September 2006.","37.On 3 October 2006 a civil registration authority issued a fresh birth certificate for V. The applicant and Ms I.Kh. were indicated respectively as his father and mother. V.\u2019s patronymic corresponded to the applicant\u2019s first name, and V.\u2019s surname reflected his mother\u2019s maiden surname. At some point in 2008 Ms Ch. applied to a court to have V.\u2019s birth certificate altered by excluding the entry concerning his father, the applicant, and by replacing his patronymic with another one. On 24 April 2008 the Pyatigorsk Town Court declined to examine Ms Ch.\u2019s application, stating that she was neither V.\u2019s parent nor his legal guardian, and therefore had no standing to lodge such applications.","38.In the meantime, on 13 October 2006 Ms I.Kh. sent a written statement to the Zh. Custody and Guardianship Agency, in which, with reference to Article 129 of the Russian Family Code (see paragraph 150 below), she revoked the consent to V.\u2019s adoption which she had given on 3September 2004. The Agency received the letter on 17 October 2006, but it does not appear that any reply was given to Ms I.Kh.","39.According to the applicant, he made numerous attempts to recover his son, but Mr S. and Ms Ch. refused to return V. and denied him and his wife contact with the boy.","40.In December 2006 Ms Ch. brought a civil claim against the applicant and Ms I.Kh., seeking to have them deprived of their parental authority in respect of V. She argued, in particular, that the applicant and Ms I.Kh. had neglected their parental duties in respect of V., had never enquired about his life, had never participated in his upbringing and education, and had never supported him financially. She also contended that Ms I.Kh. had never intended to take care of the boy, as she had given him up in the Pyatigorsk maternity hospital immediately after his birth and, moreover, had attempted to get rid of her unborn baby. In respect of the latter assertion, Ms Ch. referred to an extract from V.\u2019s medical chart, which allegedly stated that MsI.Kh. had made an attempt to abort her pregnancy in its thirtieth week.","41.On 7 February 2007 the Predgorny District Court of the Stavropol Region (\u201cthe Predgorny District Court\u201d) examined Ms Ch.\u2019s claim. The court heard Ms Ch., Ms I.Kh., the applicant and a number of witnesses.","42.At the hearing Ms Ch. reiterated her arguments. She also stated that she had visited a foster home upon an invitation from her neighbour, who worked there, and she had seen the then ten-months-old V., whom she had liked and immediately decided to adopt.","43.Ms Ch. further stated that in the foster home she had received an extract from V.\u2019s medical file, which stated that at birth he had weighed 3.150kg and had measured 50 cm, his head circumference had been 36 cm and he had been given an Apgar score of 7-8. It also stated that during pregnancy he had suffered from chronic hypoxia and fetoplacental insufficiency. The staff of the foster home had furthermore informed MsCh. about V.\u2019s biological parents, indicating their full names.","44.Ms Ch. further alleged that she had not met V.\u2019s parents prior to March 2006, when the applicant had been summoned to a court in the context of the proceedings instituted by her and Mr S. for V.\u2019s adoption. The applicant had then visited them at their home address and had stated that on 2 September 2004 he had taken his wife to the maternity hospital and that he had been unaware that the baby had survived. Mr S. and Ms Ch. had shown the applicant the statements of 3September 2004 in which MsI.Kh. and the applicant himself had consented to V.\u2019s adoption; the applicant had recognised his wife\u2019s signature but stated that his signature had been forged. He had also asked to be shown photographs of V. and had stated that the boy resembled his elder son T.N. He had then been given the photographs and left.","45.Ms Ch. went on to state that on his next visit, the applicant had come with his sister, his elder son and his father. Mr S. and Ms Ch. had invited them to come in. They had looked at V. and the applicant\u2019s sister had filmed him with her mobile telephone camera. When they left, they had offered him yogurt and a teddy bear. Ms Ch. had refused, stating that V. was allergic to yogurt and that he already had two teddy bears. In Ms Ch.\u2019s opinion, the applicant and his family members had come to find out who the child looked like.","46.Ms Ch. insisted that during his first visit the applicant had not recognised V. as his son, and that he had been thinking for two months before taking any action.","47.Ms Ch. confirmed that the boy had continued to live with her and MrS. According to her, on 21 September 2006, when her guardianship in respect of V. had been revoked, the applicant had come to her home address while she and V. were away in another town, and had threatened \u201cto handcuff\u201d Mr S. for deliberate retention of his son. In Ms Ch.\u2019s submission, the applicant had also visited their home address with an official of a custody and guardianship agency, and they had threatened Ms Ch.\u2019s mother\u2011in-law.","48.Ms I.Kh. disagreed with Ms Ch.\u2019s claim and contested her allegations. She stated, in particular, that so far she had had no opportunity to see her son V. and to bring him up. She insisted that she had given her written consent to V.\u2019s adoption without understanding the meaning of her actions at that moment, and that she would now like to have her son returned to her, but MsCh. had kept retaining him.","49.As to the events of 2-3 September 2004, the applicant\u2019s wife explained that by the time she had become pregnant with V., she had already had two children, and that none of her pregnancies, including that with V., had ever been monitored by doctors. She had not had any problems with her pregnancy with V. and had never attempted to abort it. She had found out for the first time during the present proceedings that there was allegedly a note in V.\u2019s medical records stating that she had made such an attempt.","50.Ms I.Kh. further submitted that, according to her estimation, she had been six months pregnant when on 2 September 2004, while working in her garden, she had felt pain in the lower abdomen and contractions and had started bleeding. Her husband had then taken her to the Pyatigorsk maternity hospital. According to Ms I.Kh., she had been admitted to the hospital at around 3-4 p.m. She had then been assisted by doctors, in particular by DrB. (see paragraphs 57-62 below), who had been in charge of her. The doctors had administered her intravenous and intrauterine injections and drips. As was apparent, anaesthesia had been used, as she had been sleeping during the labour, and therefore could not remember at exactly what time her baby had been born, though she had been awake at the moment of delivery. When the baby had been born, Ms I.Kh. had not heard him crying. She had been told that it was a boy and that he was hardly breathing and was not crying. MsI.Kh. had worried about the baby\u2019s health. Dr B. had told her that the birth had been premature, that the baby had been pre-term and would not survive, and that, in fact, Ms I.Kh. had had \u201ca miscarriage rather than childbirth\u201d. According to the applicant\u2019s wife, the medical staff had not told her the baby\u2019s weight or height and had not even shown her the boy, stating that he had been placed in an incubator. In reply to her request to be allowed to see the baby, Dr B. had replied that \u201cthere [had been] nothing to look at\u201d, and that the baby had been premature and was weak. Instead, Ms I.Kh. had been asked to fill in papers for the baby\u2019s adoption. According to the applicant\u2019s wife, the birth had taken place during the night-time; she had been feeling very weak because of a loss of blood, and had felt dizzy and faint.","51.Ms I.Kh. went on to state that the next morning, at 8 a.m., Dr B. had invited her to her office and had stated that the baby was still breathing but most likely would not survive, and that there was \u201cone chance in a thousand\u201d that he would live. She had then invited Ms I.Kh. to sign certain documents, indicating her height, education, profession and occupation. DrB. had stated that this was necessary for any further checks of the documents. According to Ms I.Kh., she had written something, but had not realised at that moment exactly what she had written, as she had been feeling very weak, dizzy and faint. She had informed Dr B. that she was married, and Dr B. had then invited her to write a similar statement on her husband\u2019s behalf, changing her handwriting. Ms I.Kh. had written the statement and signed it without understanding the meaning of her actions. She had then taken a rest in her hospital ward until 9 or 10 a.m. and then called her husband on his mobile telephone. Her husband had asked her about the baby and she had replied that it had been a boy and that she had lost him because of a miscarriage. Ms I.Kh. stated that she had chosen to say this to her husband because the doctors had said that the boy would not survive, and since she had wished to spare her husband because of his heart condition. When she had left the maternity hospital, she had known that the baby was alive, but had thought that he was very weak and hardly able to breathe.","52.The applicant\u2019s wife also stated that when in March 2006 she and the applicant had received a claim for removal of their parental authority in respect of V., they had been very surprised and had initially thought that there had been a misunderstanding, as in September 2005 she and the applicant had had another son, whose first name was also V. The applicant enquired at the court and then visited Dr B., who had said to him that it must be his and MsI.Kh.\u2019s son who had survived after \u201cthe miscarriage\u201d. Thereafter, the applicant had visited Ms Ch., who had told him about V. and had given him a photograph of the child. According to Ms I.Kh., when she had seen the photograph of V., who resembled her elder son T.N. a lot, she had realised what a mistake she had made and had disclosed the truth to the applicant. The latter had \u201cnearly fainted\u201d. From that moment onwards the applicant had become actively involved in the proceedings concerning V.\u2019s fate, whereas she herself could not participate as her younger son had been admitted to an intensive care unit and she had remained with him.","53.Ms I.Kh. added that in her written statement of 13 October 2006 she had revoked her consent to V.\u2019s adoption (see paragraph 38 above) but she had never received any reply from the competent custody and guardianship agency. Ms I.Kh. insisted that she wanted to take V. back to her and the applicant\u2019s family and bring him up.","54.The applicant disagreed with Ms Ch.\u2019s claim and stated that V. was his and his wife\u2019s third child and they had wanted to have him. The whole family had known about Ms I.Kh.\u2019s pregnancy. She had never been seen by doctors in connection with any of her pregnancies. He and his wife had estimated that she had been five and a half or six months pregnant when she had felt ill and he had accompanied her to the Pyatigorsk maternity hospital. He had then left the maternity hospital. The next day his wife had called him and had asked him to take her home, stating that she had lost the baby and that it had been a boy. At the maternity hospital the doctors told him that his wife had had a miscarriage. At home the whole family had mourned the loss of the baby.","55.The applicant further stated that in March 2006 he had found out from documents received from a court that his son was alive. His wife had then told him that she had not wished to traumatise him, and therefore had told him that the baby had died, having been persuaded that this was the case as the doctors had told her so.","56.The applicant added that he had no doubts regarding his paternity and insisted on V.\u2019s return to his and Ms I.Kh.\u2019s family.","57.Dr B. stated that she was the head of the observation unit of the Pyatigorsk maternity hospital. There were usually approximately 3,000childbirths per year, and therefore she was unable to remember any of her patients. Dr B. further stated that she had not met Ms I.Kh. before, but added that it was likely that she simply did not remember her. She furthermore could not recall whether she had attended Ms I.Kh.\u2019s childbirth. She could have recalled everything if the medical record of Ms I.Kh.\u2019s labour and delivery (\u043c\u0435\u0434\u0438\u0446\u0438\u043d\u0441\u043a\u0430\u044f \u043a\u0430\u0440\u0442\u0430 \u0440\u043e\u0434\u043e\u0432) had been preserved, but that file had been lost in 2005.","58.She further stated that she could not confirm any of the statements MsI.Kh. had made before the court, as she did not remember anything. In particular, Dr B. insisted that she did not remember whether she had ever obtained Ms I.Kh.\u2019s consent to her baby\u2019s adoption, or any other documents from her. According to Dr B., she had no right or need to decide with patients on questions concerning the relinquishment of their parental authority or the adoption of their newborn babies. Any such statements could only be given to the chief medical officer of the hospital, who was entitled to certify their authenticity.","59.Dr B. also denied giving Ms I.Kh. any information about her baby\u2019s state of health. She insisted that she never gave any such information, as it fell to a paediatrician to give information on newly born babies\u2019 health. DrB. did not rule out that Ms I.Kh. could mistakenly have believed that her son was dead.","60.As for the information regarding Ms I.Kh.\u2019s alleged abortion attempt, Dr B. noted that, in principle, such information could have been copied to the child\u2019s medical file from the mother\u2019s medical file, or could have been inserted there after a conversation with Ms I.Kh.","61.Dr B. also stated that after childbirth a new mother remained in a state of stress for up to forty-two days and could even have short-term amnesia. In Dr B.\u2019s opinion, by virtue of her condition after childbirth, MsI.Kh. might not remember something or might remember only certain details. She added that a mother\u2019s state of stress after childbirth could go unnoticed by others, and therefore it was not unlikely that Ms I.Kh.\u2019s written statement had been accepted from her despite her condition.","62.Dr B. further stated that she had asked the chief medical officer of the hospital to give her the medical record of Ms I.Kh.\u2019s labour and delivery, and that the official had told her that the file had been lost. She confirmed that initially she had avoided appearing in court since Mr S. and Ms Ch. had been putting pressure on her in an attempt to make her testify in their favour, and more precisely to make her state that Ms I.Kh. had deliberately abandoned her baby.","63.The Predgorny District Court also examined documentary evidence. It observed, in particular, the documents submitted by the Pyatigorsk maternity hospital, which included V.\u2019s personal file (\u0430\u043d\u043a\u0435\u0442\u0430 \u0440\u0435\u0431\u0435\u043d\u043a\u0430) drawn up at the hospital, a medical report attesting to the state of his health after birth, and written statements of 3 September 2004 containing V.\u2019s parents\u2019 consent to his adoption.","64.The court observed that, according to the boy\u2019s personal file, Mr V. Vasilyevich Kh. \u2013 the boy\u2019s surname corresponded to Ms I.Kh.\u2019s surname, whereas his patronymic was \u201cVasilyevich\u201d rather than \u201cZavenovich\u201d, which would have reflected the applicant\u2019s first name \u2013 had been born on 2September 2004, weighing 3.150 kg and measuring 54 cm. The medical report referred to foetal hypoxia and a slight cerebral circulation disorder. The file contained information about the baby\u2019s mother, including her address, whereas information about his father was missing. The file cited \u201cwritten consent to adoption\u201d as the ground for the baby\u2019s adoption.","65.The court further noted a number of defects in the file. It stated, in particular, that the file contained no information about the person who had filled it in; that information about the baby\u2019s father was missing; that the baby\u2019s patronymic was erroneously indicated as \u201cVasilyevich\u201d whereas it should have been \u201cZavenovich\u201d (which would correspond to the applicant\u2019s first name); that the file did not indicate which of the parents had filed a statement of \u201cconsent to adoption\u201d and when; that the file did not indicate who had certified that statement; that the file did not indicate the date on which the statement had been filled in or its number; that the file contained no information about V.\u2019s birth certificate, its serial number, or date of issue; and that no photograph of the baby was enclosed in the file.","66.As for the medical report, the court noted that it also erroneously indicated \u201cVasilyevich\u201d rather than \u201cZavenovich\u201d as V.\u2019s patronymic, that it did not mention the official position of the member of the medical commission who had drawn it up and that the official stamp was missing.","67.The court also noted that both written statements of 3 September 2004 had been certified by the then chief medical officer of the Pyatigorsk maternity hospital, Ms K.","68.It went on to note that it had not received any other documents from the Pyatigorsk maternity hospital, as, according to a letter from the chief medical officer of the Pyatigorsk maternity hospital dated 8 December 2006, \u201cthe original of the medical record of labour and delivery for MsI.Kh., who on 2 September 2004 gave birth to a live boy ..., was lost in 2005.\u201d","69.The court then stated that, since the original of the medical record of Ms I.Kh.\u2019s labour and delivery had been lost, it was impossible to establish the source of the document submitted by the claimant, Ms Ch. \u2013 the extract from V.\u2019s medical file stating that Ms I.Kh. had made an attempt to abort her pregnancy in its thirtieth week \u2013 an allegation categorically denied by MsI.Kh. The court therefore found that piece of evidence to be inadmissible.","70.In its judgment of 7 February 2007, the Predgorny District Court noted that it was undisputed by the parties, and found it established, that the applicant and Ms I.Kh. were V.\u2019s biological parents.","71.It further noted that the judgment of 12 July 2006, as upheld on 23August 2006, by which the claim of Mr S. and Ms Ch. regarding V.\u2019s adoption had been rejected (see paragraphs 30 and 33 above), had established that the applicant had never given his consent to V.\u2019s adoption; this fact was thus res judicata and did not need to be proved once again.","72.The Predgorny District Court therefore found it established that the applicant had not neglected his parental duties with regard to his son V., since he had simply not known that his son had been born alive. The court went on to note that as soon as the applicant had found out that his son was alive, he had started taking steps with a view to returning the child to his family.","73.The court further noted with regard to Ms I.Kh. that \u201cshe did not dispute the fact that, being in a fragile condition and having been misled by the medical personnel of the Pyatigorsk maternity hospital as to the state of her newborn son\u2019s health, she had written a statement in which she had expressed her consent to her son\u2019s adoption\u201d. At the same time, the court took into consideration the fact that after childbirth Ms I.Kh. had been in a fragile condition, that on 13 October 2006 she had retracted her statement and that, as matters now stood, she intended to take the child into her family and to bring him up. The court noted that Ms I.Kh.\u2019s fragile condition after childbirth had \u201cindirectly\u201d been confirmed by Dr B.\u2019s statement to the effect that a new mother could remain in a state of stress for a period of up to forty-two days after childbirth and that this state could remain unnoticed by others (see paragraph 61 above).","74.The court went on to note that deprivation of parental authority was a measure of last resort and that it could only be applied to parents flagrantly neglecting their parental duties. The court further considered that no such guilty conduct on the part of the applicant or Ms I.Kh. had been established. It further noted that the circumstances giving rise to V.\u2019s transfer to a foster home and then to the family of Mr S. and Ms Ch. for adoption had changed, as his biological parents had found out that the boy was alive and they wished to bring him up themselves, which meant that they had priority over any other person.","75.In so far as the representatives of the two custody and guardianship agencies argued that depriving the applicant and Ms I.Kh. of their parental authority would be in the child\u2019s best interests, the court noted that the law not only protected the interests of the child but those of the parents as well. The court also considered that the positive references given to Mr S. and MsCh., their caring attitude towards V., their contribution to the improvement of his health and his successful development, their attachment to the child, whom they loved and perceived as their own, and the child\u2019s attachment to them, should not be set against the interests and rights of the biological parents as protected by law.","76.The court further observed that the applicant and his wife had positive references and good living conditions, could financially support their child, wished to bring him up and were insistent on his return to their family. It thus concluded that there were no grounds to grant Ms Ch.\u2019s claim and rejected it.","77.On 7 February 2007 the Predgorny District Court issued a special ruling in respect of the Head of the Pyatigorsk Health Department. It criticised the shortcomings surrounding the way in which Ms I.Kh.\u2019s consent to her son\u2019s adoption had been obtained, the defects in V.\u2019s personal file and the fact that the medical record of MsI.Kh.\u2019s labour and delivery had been lost.","78.On 21 March 2007 the Stavropol Regional Court quashed the first-instance judgment on appeal and sent the case for a fresh examination.","79.The Stavropol Regional Court held that the first-instance court\u2019s conclusions had been based on assumptions and speculations and that the evidence to which the court had referred had been unreliable. In particular, the first-instance court\u2019s conclusion that Ms I.Kh. had been misled by the medical personnel of the Pyatigorsk maternity hospital regarding the state of her baby\u2019s health had not been supported by evidence. The Regional Court also stated that neither Ms I.Kh. nor the applicant had taken any steps to ascertain the circumstances of the birth, to apprise themselves of the state of their newborn son\u2019s health, and to offer help and support to their baby, having left him in danger several hours after his birth. In the court\u2019s view, with the necessary degree of care, the parents could and should have found out that their baby was alive, and that he had been born at term with a good weight and only slight health problems.","80.The Stavropol Regional Court went on to note that the first-instance court had failed to establish what the reasons had been for the applicant\u2019s refusal to take the baby from the maternity hospital, and how it was possible that, being the father of three children, the applicant had mistakenly believed in the unfortunate outcome of the birth to such an extent that he had taken no actions with a view to apprising himself of his newborn son\u2019s fate. The Stavropol Regional Court thus concluded that the applicant\u2019s statement to the effect that he had been unaware that his son was alive had not been corroborated by any evidence and that therefore V.\u2019s transfer to his biological parents was not in the child\u2019s interests.","81.On 28 May 2007 the Presidium of the Stavropol Regional Court (\u201cthe Presidium\u201d) quashed the decision of 21 March 2007 by way of supervisory review, noting that the appellate court\u2019s findings in that decision did not correspond to the circumstances of the case. In particular, the Presidium referred to the results of the inquiry carried out by the Zh. prosecutor\u2019s office (see paragraphs 25-27 above) and the court decisions of 12 July and 23 August 2006 (see paragraphs 30 and 33 above) and stressed that, contrary to the relevant findings of the appellate court, it had been clearly established that the applicant had not been aware of the fact that his son had been born alive, that he had never given his consent to his adoption, and that as soon as he had found out that V. was alive, the applicant had started taking steps with a view to returning the boy to his family. In connection with the latter aspect, the Presidium referred to the applicant\u2019s numerous applications to courts and administrative bodies.","82.It also noted that on 13October 2006 Ms I.Kh. had revoked her consent to V.\u2019s adoption and had officially informed the relevant custody and guardianship agency to that effect. The court stated that under the relevant law, she had a right to retract her consent at any time before the adoption was confirmed by a court.","83.The Presidium also referred to the special ruling issued by the Predgorny District Court on 7 February 2007 (see paragraph 77 above). The Presidium observed, in particular, that that ruling had not been disputed, annulled or found to be unlawful, even though the circumstances established in the ruling stood in clear conflict with the relevant findings of the appellate court.","84.The Presidium also found that the appellate court\u2019s conclusion that V.\u2019s transfer to the applicant\u2019s family would not be in his interests had not, in fact, corresponded to the subject matter of the claim in the case under examination, which only concerned the removal of parental authority from Ms I.Kh. and the applicant.","85.The Presidium further noted that the applicant\u2019s family had been characterised in positive terms: both he, his wife and their three children had positive references, the relations within the family were friendly, the living conditions were good and complied with all necessary requirements, and therefore V. would be safe in that family. Depriving the applicant and his wife of their parental authority over V. would entail a breach of his rights and interrupt the child\u2019s ties with his biological parents, his siblings and his grandparents.","86.The Presidium thus set aside the appellate decision of 21 March 2007 and ordered that the first-instance judgment of 7 February 2007 should be upheld.","87.In the meantime, in a letter of 20 March 2007 the Zh. Custody and Guardianship Agency informed the applicant, in reply to a request from him to that effect, that on 19 March 2007 Ms Ch. had been invited for an interview so that she could provide time for contact sessions for the applicant and Ms I.Kh. with their son V. The letter further stated that MsCh. had refused to provide any such time. It then recommended that the applicant should obtain a court order for access to his child.","88.On 2 July 2007 the applicant and Ms I.Kh. lodged a written complaint to the police, stating that Ms Ch. had unlawfully retained their son V. and refused to return him to their family. They sought to have criminal proceedings against Ms Ch. instituted in that connection.","89.On 10 July 2007 the Zh. Office of the Interior decided not to institute criminal proceedings, with reference to the absence of the constituent elements of a crime in Ms Ch.\u2019s actions. The decision stated, in particular, that after the administrative decision revoking Ms Ch.\u2019s guardianship in respect of V. had been confirmed by the courts at two levels of jurisdiction, a representative of the Zh. Custody and Guardianship Agency had visited Ms Ch.\u2019s home address on three occasions in an attempt to take V. away and return him to the applicant\u2019s family, but each time Ms Ch. and V. had been absent. Mr S. had explained that his wife and son had gone \u201cto the seaside\u201d. At the moment, V. was still living with Mr S. and Ms Ch. The decision further referred to the civil proceedings instituted by the applicant for V.\u2019s return to his family which were pending at that time (see paragraph 91 below), and concluded that the circumstances of the case revealed no criminal actions on Ms Ch.\u2019s part, and that the case should be resolved by means of a civil procedure.","90.The applicant repeatedly sought the assistance of administrative bodies in returning V. In particular, he lodged requests to that effect with the Zh. Custody and Guardianship Agency on 11 September 2006, 29 May, 4 and 22 June and 27 July 2007 and 8 February 2008, and with the head of the municipal administration of Zh. on 7 November 2006 and 21 January and 4 February 2008.","91.On 24 September 2006 the applicant brought civil proceedings before the Zh. Town Court. He sought the removal of obstacles to the exercise of his parental authority over V. and to V.\u2019s right to live and to be brought up in his own family.","92.By a judgment of 13 July 2007 the Zh. Town Court granted the applicant\u2019s claim and ordered V.\u2019s recovery from Ms Ch. and his return to the applicant\u2019s family. The court noted that Ms Ch. was no longer V.\u2019s guardian and therefore had no legal grounds to retain him. With reference to Article 54 of the Russian Family Code (see paragraph 143 below), the court further held that it could not run counter to V.\u2019s interests to return to his father\u2019s family, where all his siblings lived.","93.On 26 September 2007 the Stavropol Regional Court quashed that judgment on appeal and returned the case to the Zh. Town Court for a fresh examination. It stated, in particular, that the first-instance court should have established what the child\u2019s best interests required in the present case, and whether his transfer to his biological parents would be in his best interests. In particular, the first-instance court should have given its assessment of the fact that Ms I.Kh. had given her baby up in the maternity hospital and had not expressed any further interest in his fate, and the fact that she was only participating in the present proceedings as a third party and not as a claimant. The appellate court also noted that there were four children of different ages in the applicant\u2019s family, and that the first-instance court should therefore have assessed the prospects of V.\u2019s adaptation in psychological and other terms to living in such a family, given that for three years he had been living in a family where he had been the only child. The Stavropol Regional Court considered that the first-instance court had failed to take into account the relevant considerations in that respect, and that its finding to the effect that V.\u2019s return to his biological family would be in the boy\u2019s interests had been unjustified, unfounded and unsubstantiated by any evidence.","94.In the context of a new round of the proceedings, the Custody and Guardianship Agency of the Predgornyy District (the childcare authority at the place of the applicant\u2019s home address) and the Zh. Custody and Guardianship Agency (the childcare authority at the place of the home address of Mr S. and Ms Ch.) examined the applicant\u2019s family\u2019s living conditions and drew up reports on the matter on 29 January and 11 March 2008 respectively.","95.In its report of 29 January 2008 following its examination of the applicant\u2019s private house, the Custody and Guardianship Agency of the Predgornyy District stated, in particular, that the applicant\u2019s family comprised himself, MsI.Kh., their four minor children and the applicant\u2019s parents. The report further stated that the relations within the family were \u201cfriendly, based on respect\u201d, and that the parents supported the children, brought them up and took care of their education. The children, according to the report, went to school regularly and performed well in their studies. The grandparents and the children in the family were unanimous in expressing their wish to have V. returned to their family. The report then stated that the family was well-off and described their living conditions, stating, in particular, that the sanitary conditions in the house were good, and that it was clean, well maintained and had everything necessary for daily living.","96.In its report of 11 March 2008 the Zh. Custody and Guardianship Agency described the living conditions in the applicant\u2019s private house and listed the members of his family who lived there. The report mentioned that the applicant\u2019s daughter M.N. and son T.N. \u201cwere taken aback\u201d when asked about their sleeping places and had then explained that they slept \u201cwhere they wanted, in the sitting room\u201d. The report also mentioned that when T.N. was asked what he had for lunch, he had answered that he had \u201cchips\u201d. The report concluded that the living conditions were good and met all sanitary requirements. It did not describe the relations within the family.","97.In the new round of proceedings, the applicant and Ms Ch. requested the court to order a psychological expert examination of V.","98.In a written application of 31 March 2008 the applicant withdrew his request and objected to such an examination being carried out. He stressed that his son was a minor, and therefore, being V.\u2019s father, he represented the boy by virtue of Article 64 of the Russian Family Code (see paragraph 147 below). The applicant further stated that the results of any psychological expert examination would not be objective and that it would be unable genuinely to establish what was in V.\u2019s best interests, given that the boy was influenced by Ms Ch., who for the previous two years had been preventing any contact between V. and the applicant and his family. It appears that the application was eventually rejected by the court.","99.The Zh. Town Court heard the parties and a number of witnesses.","100.The applicant maintained his claim, reiterating that he had been trying to return V. to his family since the time he had found out that his son was alive. In particular, he had repeatedly asked Ms Ch. to return V. to him throughout the period that had elapsed after the judgment of 12 July 2006, as upheld on appeal on 23 August 2006, by which Ms Ch.\u2019s application for V.\u2019s adoption had been refused (see paragraphs 30 and 33 above).","101.Ms I.Kh., acting as a third party in the proceedings, supported the applicant\u2019s claim and stated that her only wish was to take V. back to her family and that she wanted to bring him up.","102.Mr S. and Ms Ch. disagreed with the applicant\u2019s claim and argued that the child had been living with them since 26 July 2005, that they were very attached to him and that he was attached to them to the extent that even a short separation from them would cause him to suffer a fever and his condition would only return to normal after he resumed contact with them.","103.Ms K., who at the time when V. had been born had been the chief medical officer of the Pyatigorsk maternity hospital, stated that on 2September 2004 Ms I.Kh. had given birth to a full-term baby whom she had then given up, having written a statement to that effect. According to Ms K., Ms I.Kh. had brought a similar statement from her husband and had explained that he \u201cfelt too timid\u201d to come to see Ms K. and had preferred to wait in the car, but Ms I.Kh. had brought his statement and his passport. MsK. submitted that she had accepted the statement from Ms I.Kh.\u2019s husband, without establishing the identity of the person who had written it. The car in which the presumed father had been sitting had stood 10 metres away and the person inside the car had appeared to resemble the applicant. Ms K. added that during the period of V.\u2019s stay in the maternity hospital neither the applicant nor Ms I.Kh. had expressed any interest in his life.","104.A number of other witnesses were examined, including a representative of the Zh. Custody and Guardianship Agency; various individuals who were relatives, friends or acquaintances of Mr S. and MsCh., and the applicant\u2019s elder children, M.N. and T.N. The applicant\u2019s children stated that they were happy and that the relations within their family were good and friendly. T.N. added that he was dreaming of his brother V.\u2019s return to their family.","105.The Zh. Town Court also examined documentary evidence.","106.It referred, in particular, to the register of patients\u2019 admission to the Pyatigorsk maternity hospital for the period between 12 August to 6September 2004, which stated that Ms I.Kh. had been admitted on 2September 2004 at 2 p.m. and that at 9.15 p.m. she had given birth, without any complications, to a live boy, having no signs of asphyxia, weighing 3.150kg and measuring 54 cm. The register also stated that MsI.Kh. had left the hospital without the baby on 3 September 2004.","107.The court further examined V.\u2019s personal file, adduced by the Pyatigorsk Custody and Guardianship Agency. Its description of the document in question was very similar to that given by the Predgorny District Court in the judgment of 7 February 2007 (see paragraphs 64-65 above).","108.The court also noted that in reply to its request to the Pyatigorsk maternity hospital to provide the original of the medical record of MsI.Kh.\u2019s labour and delivery and V.\u2019s medical file, the hospital had stated that those documents could not be found, and that in 2004 the patients\u2019 and babies\u2019 medical files had been kept in the office of the chief medical officer, Ms K.","109.The court went on to examine the two written statements of 3September 2004 concerning the biological parents\u2019 consent to V.\u2019s adoption (see paragraph 10 above). The court noted, in particular, that one of the statements had been signed by Ms I.Kh. and the other one had been signed by the applicant, and that both signatures were certified by the chief medical officer, Ms K., who had signed both statements and stamped them with the official stamp of the Pyatigorsk maternity hospital.","110.The court further referred to the decision of the Pyatigorsk Office of the Interior dated 30 June 2006 not to institute criminal proceedings against Ms I.Kh. (see paragraph 27 above).","111.The court then examined three medical reports, without mentioning the dates on which they had been drawn up. One of the reports was written by a paediatrician practising in the vicinity of the home of Mr S., Ms Ch. and V. It provided details of the state of V.\u2019s health during the period between 5 August 2005, the date of V.\u2019s first visit, and 27 February 2008, the date of his latest visit. Among other things, the report referred to an attempted abortion at the foetus\u2019s gestational age of thirty weeks but did not clearly indicate the source of that information.","112.Another report had been drawn up by a psychologist and stated that V. was a sociable and easy-going child with well-developed speech, and that his intellectual development was adequate for his age. According to the report, the boy constantly needed and claimed attention from adults, particularly from Ms Ch., who was referred to in the report as V.\u2019s mother. The report also attested to the boy\u2019s particular attachment to Ms Ch. and indicated that he became stressed if she left him even for a short while. The report referred to V.\u2019s increased level of agitation and indicated that he constantly needed attention, care, support and a tender and caring attitude.","113.The court went on to note that, pursuant to its orders to that effect, comprehensive psychological and psychiatric examinations by a panel of experts had been performed in respect of V., Mr S. and Ms Ch.","114.The report of 4 June 2008 stated that V.\u2019s level of physiological and social development corresponded to his age. It also described the level of V.\u2019s development and particular features of his personality in more detail, stressing, in particular, the boy\u2019s particular need for emotional comfort and for protection from outside factors. The report also indicated that the child was currently going through his first age crisis, where his mother\u2019s emotional support was essential. V. was attached to Mr S. and Ms Ch., called them \u201cdad\u201d and \u201cmum\u201d and had a constant need for contact with them. Therefore, according to the report, V.\u2019s transfer to a new family of unknown adults and children would cause him psychological trauma.","115.The reports of 11 June 2008 portrayed Mr S. and Ms Ch. as emotional, caring, empathetic people, devoid of any aggressiveness.","116.The Zh. Town Court pointed out that similar expert examinations had been ordered in respect of the applicant and Ms I.Kh., but they had avoided the examination by failing to appear before an expert body.","117.The court also took note of a report by the Zh. Custody and Guardianship Agency. According to the report, it was better for the child to stay with Mr S. and Ms Ch., as he had become accustomed and deeply attached to them, considering them to be his parents. The report further stated that the living conditions at Mr S. and Ms Ch.\u2019s home were good, met all necessary sanitary requirements and were suitable for V. to live in. The boy had an orderly and stable life in their family.","118.Lastly, the court referred to the report of 11 March 2008 on the examination by the Zh. Custody and Guardianship Agency of the applicant\u2019s family\u2019s living conditions (see paragraph 96 above).","119.On 9 July 2008 the Zh. Town Court rejected the applicant\u2019s claim in full. In its judgment it referred to the aforementioned witness statements and documentary evidence.","120.The Zh. Town Court then held as follows:","\u201c... the court has established that [the applicant\u2019s] family consists of his parents, his spouse [Ms I.Kh.], and their four children of various ages ... who are used to living and being brought up in \u2018a family community\u2019, whereas, from 25 July 2005 until the present time, [V.] has been living in a family where he is the only child and all the time and attention of the persons in charge of him are being devoted to him alone.","Thus, the moral and other personal characteristics of [Mr S. and Ms Ch.] are high and enable them to bring [V.] up; the relations between [Mr S. and Ms Ch.] and the child are good; [Mr S. and Ms Ch.] take measures to support and bring [V.] up, take care of his health, and take into account his interests; there is mutual understanding between [Mr S. and Ms Ch.] and the child. [Mr S. and Ms Ch.] have created all the necessary surroundings, including living conditions, for the child\u2019s upbringing and development; [they] have a sufficient income, and their working hours do not exceed the normal duration of a working day; [they] can spend enough time on [V.\u2019s] physical and moral development.","Assessing the foregoing, the court also takes into account the fact that [the applicant\u2019s] claim concerns the child\u2019s transfer to the family consisting of the biological father \u2013 [the applicant] \u2013 the biological mother \u2013 [Ms I.Kh.] \u2013 and four children of different ages; the fact that a member of this family \u2013 the child\u2019s biological mother \u2013 has not submitted any claim for the child\u2019s return, and has been taking part in the proceedings in the present case only as a third party ...; and her behaviour during her pregnancy \u2013 an attempt to abort it, which she has not denied. The court does not find any reasons for granting [the applicant\u2019s] claim for the recovery of the child from [Mr S. and Ms Ch.] and for ordering his transfer to the family, where the child\u2019s mother does not wish for [the transfer]; to hold otherwise would be in conflict with the child\u2019s interests, which, by virtue of international law and Russian family law, are the priority for the court.\u201d","(a) The applicant\u2019s appeal submissions","121.The applicant appealed against the judgment of the Zh. Town Court.","122.In his appeal submissions he complained, in particular, that a psychological and psychiatric expert examination of his son V. (see paragraph 114 above) had been carried out despite his objection (see paragraph 98 above). The applicant also argued that information regarding his wife\u2019s alleged attempt to abort her pregnancy was unsubstantiated. In the latter connection, he referred to the judgment of the Predgorny District Court of 7 February 2007, which had rejected an extract from V.\u2019s medical chart as inadmissible evidence, with reference to the fact that the original of the medical record of Ms I.Kh.\u2019s labour and delivery had been lost (see paragraph 69 above). The applicant further complained that in its judgment the Zh. Town Court had not referred to all the documents it had examined during the hearing; in particular, the judgment made no reference to the final and binding court decisions given previously. The applicant also argued that the first-instance court had not taken into account the fact that he had been trying for more than two years to take V. from the persons who had been unlawfully retaining him.","(b) The appellate court\u2019s decision","123.On 26 August 2008 the Stavropol Regional Court upheld the judgment of 9 July 2008 on appeal.","124.It rejected the applicant\u2019s argument that the information about MsI.Kh.\u2019s alleged attempt to abort her pregnancy was inadmissible in evidence. The appellate court stated that the information in question had been taken from documentary evidence that met the requirements of the relevant domestic law, and that the fact that the original of the medical record of MsI.Kh.\u2019s labour and delivery had been lost did not rule out the admissibility of other pieces of evidence, such as an extract from V.\u2019s medical file from the Pyatigorsk maternity hospital, his medical file from a children\u2019s hospital, where he had been transferred from the Pyatigorsk maternity hospital, and his personal file from the foster home.","125.The appellate court held that the Zh. Town Court had carefully examined the circumstances of the case, and in particular had carried out a thorough assessment of the conduct of the applicant and MsI.Kh. at the time of V.\u2019s birth and their subsequent conduct and had rightly concluded that V.\u2019s transfer to his father\u2019s family was not in the child\u2019s best interests.","126.The Stavropol Regional Court reiterated the first-instance court\u2019s findings that Ms I.Kh. had given birth to a healthy baby boy and that, shortly thereafter, she had written similar statements, on behalf of herself and the applicant, in which she had expressed a wish to abandon the baby in the hospital, \u201cthose statements having been duly certified, as required by law\u201d.","127.The Stavropol Regional Court further noted that the Zh. Town Court had rightly taken into account the conduct of the applicant, who, at the time of the birth, had not taken any steps to obtain information regarding the state of his baby\u2019s health or to clarify the circumstances of the supposedly unfortunate outcome of his wife\u2019s labour and delivery; he had, furthermore, not taken any steps to provide assistance and support to the baby. The Stavropol Regional Court thus emphasised that V.\u2019s mother had given him up \u201cdeliberately and on purpose\u201d, whereas the applicant\u2019s conduct could be explained by his supposed unawareness of the state of V.\u2019s health. In the latter connection, the Stavropol Regional Court noted that the applicant\u2019s supposed unawareness had been the result of his own inactivity. In the court\u2019s view, with the necessary degree of care, the applicant could and should have found out that the baby had been born at term, that he was alive, that his weight was normal and that he had only insignificant health issues. The court concluded that such conduct on the part of the parents at the time of V.\u2019s birth, deliberate on the part of the biological mother and negligent on the part of the biological father, and the fact that they had left him in danger, had not corresponded to V.\u2019s interests.","128.The Regional Court further noted that the subsequent conduct of V.\u2019s biological parents had also been duly assessed by the first-instance court, which had taken into account the fact that throughout V.\u2019s stay in the Pyatigorsk maternity hospital and the foster home and afterwards, neither the applicant nor MsI.Kh. had ever expressed any interest in V.\u2019s life, or had visited him, or provided any financial support. The applicant had only started taking steps with a view to securing V.\u2019s return after Ms Ch. had filed a claim for removal of his parental authority, whereas the child\u2019s mother, Ms I.Kh., had never attempted to have her rights with respect to V. restored, and had not at any time lodged a claim for the protection of V.\u2019s interests.","129.The appellate court also noted that Ms I.Kh. had stated that she did not intend to lodge any separate claim for V.\u2019s return, as she considered the actions taken by her husband to that end to be sufficient; and that the Zh. Town Court had rightly taken into account the refusal of the applicant and Ms I.Kh. to undergo a psychiatric expert examination when rejecting the applicant\u2019s claim.","130.In the light of the foregoing, the Stavropol Regional Court concluded that the applicant\u2019s right to bring V. up stood in conflict with the child\u2019s best interests.","(c) Further developments","131.By a decision of 24 September 2008 the head of the municipal administration of Zh. again appointed Ms Ch. to act as V.\u2019s guardian.","132.On 10 March 2009 the applicant, his wife and his father lodged a claim against Ms Ch., seeking to have obstacles to their access to V. removed and to have their contact rights with V. determined. The applicant and Ms I.Kh. pointed out, in particular, that they had never been deprived of their parental authority with respect to V., and that they had on numerous occasions requested Ms Ch. to let them see V. and to set down specific hours for that purpose. They had also sought the assistance of a local custody and guardianship official, who had stated that the resolution of that situation could only be possible through a court procedure, in view of the fact that Ms Ch. had categorically refused to allow any such contact between V. and his biological relatives.","133.Before the court the applicant, his wife and his father maintained their claim and requested the court to set V.\u2019s current location at the address of Mr S. and Ms Ch. as the place for their contact sessions with him.","134.Ms Ch. and a representative of the Zh. Custody and Guardianship Authority objected to the claim, stating that any contact with V.\u2019s biological relatives might inflict psychological trauma on him.","135.In a judgment of 16 April 2009 the Zh. Town Court dismissed the claim.","136.The court noted that Ms Ch. had been appointed V.\u2019s guardian by the decision of the head of the municipal administration of Zh. of 24September 2008, and that therefore by virtue of Article 148.1 of the Russian Family Code (see paragraph 151 below), she had every right to represent and protect the child\u2019s interests. It also stated that the same Article established that a guardian should not obstruct contact between a child and his or her biological parents or other relatives, unless such contact was in conflict with the child\u2019s interests.","137.The Zh. Town Court went on to rely extensively on the conclusions of report no. 785 of 4 June 2008 (see paragraph 114 above) reflecting the results of V.\u2019s psychosocial and psychiatric expert examination carried out in the context of the proceedings concerning the applicant\u2019s claim for V.\u2019s return to his family. In particular, the court quoted that report in so far as it stated that V.\u2019s transfer to a new family of unknown adults and children would cause him psychological trauma.","138.The court also cited report no. 787 of 11 June 2008 (see paragraph 115 above) and \u201c[took] into account the fact that the applicant and Ms I.Kh. had avoided the expert examination which had been ordered in respect of them, having failed to appear at the expert institution\u201d in the context of the proceedings for V.\u2019s return to their family (see paragraph 116 above).","139.The Zh. Town Court went on to describe the conduct of the applicant and Ms I.Kh. at the time of V.\u2019s birth, reproducing, word for word, the decision of the Stavropol Regional Court of 26 August 2008 (see paragraph 127 above). It reiterated, in particular, that, with the necessary degree of care, the applicant could and should have found out that the baby had been born at term, that he was alive, that his weight was normal and that he had only insignificant health issues.","140.The Zh. Town Court continued as follows:","\u201cSuch conduct by the parents \u2013 deliberate on the part of the biological mother and negligent on the part of the biological father \u2013 at the time of the baby\u2019s birth, and the fact that they left him in danger, did not correspond to the child\u2019s interests, in spite of the fact that later the biological mother, [Ms I.Kh.], revoked her consent to the child\u2019s adoption, and the fact that the consent to the child\u2019s adoption given on behalf of [the applicant] was written by an unidentified person and not by him.","Moreover, the court has given its assessment of the actual conditions in which the child is being brought up, the nature of the relations between the foster parents, the child\u2019s attitude towards them, the living conditions of the foster parents, and the possibility of their positive or negative impact on the child.","These circumstances were established during the court proceedings [concerning the applicant\u2019s claim for V.\u2019s return to his family] and were reasons for the dismissal of [the applicant\u2019s] claim.","As regards the question of the possibility of determining the manner of contact between [V.] and his biological relatives \u2013 the claimants in the present case \u2013 the court takes into account the aforementioned circumstances, which have led to the fact that [V.] is currently under [Ms Ch.] guardianship; the psychological particularities of the child\u2019s development; [V.\u2019s] attitude towards [Ms Ch.] as his own mother; and the opinion of the claimants, who insist that the child\u2019s contact with his biological relatives will not cause him psychological trauma, as they are his kinsfolk.","Therefore, having regard to the entirety of the evidence submitted by the parties, as analysed in the light of the provisions of international and Russian family law, which are of priority to the court, the court finds no reasons to grant the claim of [the applicant, Ms I.Kh. and the applicant\u2019s father] for the elimination of obstacles to their contact with [V.] and for the determination of the manner and extent of their contact with him.\u201d","141.The applicant, Ms I.Kh. and the applicant\u2019s father disagreed with the judgment and lodged an appeal. They argued, in particular, that the Zh. Town Court\u2019s findings about the conduct of the applicant and Ms I.Kh. in respect of V. had been unfounded. They pointed out that it had never been established that any of them had ever caused any physical or psychological harm to the child. They further questioned the reasonableness of the Zh. Town Court\u2019s reliance on the report of 4 June 2008 on V.\u2019s psychological and psychiatric examination, given that it described the potential consequences of V.\u2019s transfer to a new family, whereas in their claim they had only sought to have their contact with V. determined, in a manner and to an extent that was not detrimental to V.\u2019s health. The applicant and his wife stressed that they had never been deprived of their parental authority in respect of V. They also argued that by refusing to determine arrangements for their contact with V., the Zh. Town Court had breached V.\u2019s right to know his biological parents and other relatives, and to have their care and support.","142.On 16 June 2009 the Stavropol Regional Court upheld the judgment of 16 April 2009 on appeal. It stated, in particular:","\u201cThe first-instance court resolved the dispute with due regard to the [relevant] legal provisions and the evidence, including the final court decisions, submitted by the parties in adversarial proceedings. It considered such a solution currently to be the best one for the child and justified by his interests.","Refusing to determine arrangements for the [the claimants\u2019] contact with the child, the first-instance court reasonably took into account his age, state of health and other circumstances capable of influencing his physical and psychological health and moral development, as well as other factors relevant for ensuring adequate conditions for his living and upbringing.","Taking into account [V.\u2019s] age of nearly five years, the first-instance court reasonably considered that the living conditions that had been formed during those years in Ms Ch.\u2019s family could not be changed abruptly, all the more so since at this age he should live with the person whom he considered to be his mother.","It is an essential factor that throughout those five years, for various reasons, [the claimants] had no possibility of contact with the child. As the court found, it was not in the child\u2019s interests to establish any such contact now.","The foregoing reveals that [the claimants] have the possibility of maintaining friendly relations with the child, gradually adapting to his life, and participating in taking decisions regarding his upbringing and development.","Moreover, taking into account the particular nature of relations between the claimants ... and [Ms Ch.], it will be necessary to ensure the child\u2019s adaptation to new circumstances, since, irrespective of the opinion of the aforementioned persons, it is first and foremost the child\u2019s interests that should be taken into account; and [those interests] would not be secured in the present case if the claimants were granted contact with the child.","The parental rights of [the applicant and Ms I.Kh.] are likewise not infringed because the circumstances relied on as the grounds for refusing to grant them contact with [V.] may eventually change. This may be the case when the child reaches the age when, by virtue of Article 57 of the Russian Family Code, it is obligatory to take into account his opinion.\u201d"],"215":["2.The applicant was born in November 1993. The applicant was represented by Mr M. \u0160\u010detar, a lawyer practising in Kri\u017eevci.","3.The Government were represented by their Agent, Ms \u0160. Sta\u017enik.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.Between 2008 and 2012 the applicant was a student in a public high school.","6.On 19 September 2011 the applicant and several of his classmates were late for their mathematics class with teacher R.V. When they entered the classroom, R.V. started shouting, telling the applicant that he was \u201ca moron [kreten jedan], an idiot [idijot], a fool [budala], hillbilly [selja\u010dina], a stupid cop [\u017eandar glupi]\u201d (because the applicant\u2019s father worked in the police).","7.On 20 September 2011, after the applicant had reported the insults to the head teacher, R.V. stated during his class that \u201c... when you say to a fool that he is a fool, that should not be an insult for him. The head teacher called me saying that I had insulted some students. You don\u2019t know what the insults are, but you will see what the insults are.\u201d","8.On 28 September 2011, during class, R.V. approached the applicant and asked him to turn the page in a book. As the applicant turned the wrong page, R.V. said \u201cYou, fool, not that page. I didn\u2019t mean to insult you, because I know you will call your dad.\u201d","9.In the period between September and December 2011 on two occasions the applicant underwent psychological treatment related to the alleged harassment by R.V. His general practitioner gave a working diagnosis of post-traumatic stress disorder related to his harassment at school by R.V., and a psychologist in the local hospital found that due to the psychological harassment at school the applicant was suffering from an acute anxiety disorder and recommended increased support and understanding at school. The psychologist also found that the applicant was otherwise growing up in a functional family and that he was very good at school.","10.According to the applicant, his conflict with R.V. and R.V.\u2019s subsequent involvement in his final mathematics exam resulted in his poor overall performance. He therefore failed to get on to his chosen university course.","11.According to a report of the National Centre for the External Evaluation of Education (Nacionalni centar za vanjsko vrednovanje obrazovanja) of 5 December 2014, which the Government provided to the Court, the exam process was anonymised and the reason for the applicant\u2019s poor performance was his failure to follow properly the instructions for filling in the examination papers.","12.By a letter of 21 September 2011 the applicant\u2019s father informed the school authorities, the Ombudsperson for Children (Pravobraniteljica za djecu), the education inspectorate, the police and the competent State Attorney\u2019s Office (Op\u0107insko dr\u017eavno odvjetni\u0161tvo) of the applicant\u2019s harassment by R.V., and requested protection for him. He repeated the same complaints on 28 September 2011.","13.In connection with the applicant\u2019s allegations, on 3 October 2011 the school psychologist invited R.V. for an interview. R.V. admitted that he had said the words alleged by the applicant during the event of 19 September 2011 (see paragraph 6 above) but denied using the insult \u201cstupid cop\u201d. He also argued that he had not addressed the applicant personally, but a group of students, and that he could not understand why the applicant felt so affected by the event. The school psychologist reproached R.V. for using inappropriate words, which he fully accepted, and he promised not to use insults anymore.","14.On 4 October 2011 the school psychologist interviewed the applicant. He stated that he felt stressed and uncomfortable during mathematics classes because of the situation with R.V. He also explained that he wanted to either change school or the class, or have the teacher removed from his class. The school psychologist insisted that the applicant should try to talk to R.V. and invited him to inform her by 6 October 2011 whether he would be willing to do that. The applicant did not inform the school psychologist of his decision.","15.On 7 October 2011 the applicant\u2019s father informed the Ministry of Education (Ministarstvo znanosti, obrazovanja i \u0161porta; hereinafter: \u201cthe Ministry\u201d) of the applicant\u2019s harassment by R.V. and requested protection for him.The Ministry replied on 4 November 2011, indicating that the case had been forwarded to the Education Agency (Agencija za odgoj i obrazovanje; hereinafter: \u201cthe \u201cAgency\u201d).","16.The applicant\u2019s father\u2019s complaints resulted in an assessment of the situation by the Agency on 22 November 2011. This assessment consisted of an interview with R.V., the school psychologist, the head teacher, the applicant and his classmates. The Agency also analysed the relevant documents and conducted an anonymous survey amongst the students concerning their satisfaction with R.V.\u2019s teaching.","17.The Agency found that R.V. was duly complying with all his teaching tasks. He was a renowned mathematics teacher, who had even received an award from the Minister of Education for his work. The anonymous survey showed that the students were satisfied with R.V., and that their major objection was that he should spend more time with less successful students. Only two students stated that they would like to change the teacher.","18.The same view was repeated in individual interviews with the students conducted by an Agency official. She also interviewed R.V., who stated that he had not had any malicious intention when being angry at the students for being late, and that he could not understand why the applicant had got so upset. The interviews with the head teacher and the school psychologist suggested that the applicant\u2019s father had been very upset about the situation. He refused to discuss the matter further with them and preferred to have the competent institutions investigate the case.","19.In its conclusions, the Agency stressed that R.V. was a good teacher with good intentions, and that he felt sorry for not having an opportunity to discuss the possible problems with the applicant\u2019s father. The Agency found that the situation created by the conflict had damaged the applicant\u2019s progress. It suggested that the matter be resolved by a discussion between the school authorities and the applicant\u2019s father. It also instructed the school authorities to report on the further developments in the case.","20.After several unsuccessful attempts to hold a meeting at the school, on 14 December 2011 the applicant\u2019s father attended a meeting with the head teacher. According to a report from the meeting prepared by the head teacher, the applicant\u2019s father had explained that his son was now satisfied with his relationship with R.V., and that their conflict had been settled.","21.The school authorities informed the Agency and the Ombudsperson for Children of the matter.","22.On 4 November 2011 the applicant lodged a criminal complaint with the police, alleging harassment by R.V.","23.In the course of the proceedings, the police and the relevant State Attorney\u2019s Office questioned the applicant and a number of students and officials from the school, as well as R.V. They also obtained relevant documentation concerning the applicant\u2019s complaints.","24.Several of the students or former students from the school stated that the teacher R.V. sometimes used inappropriate and insulting language. He was particularly harsh with those who were not good in mathematics, such as the applicant. A student, L.J., stated that he had even stopped paying attention to the words such as \u201cfools\u201d, \u201cidiots\u201d and \u201cidlers\u201d as it was a usual talk at the mathematics class. Some of the students considered the use of such a language to be a way of joking by the teacher. A former student, S.J., stated that the teacher had made some comments of a sexual nature concerning her during the class. Student M.J. explained that there had been an inquiry by the education authorities in the course of which the students had been asked to reply to a questionnaire. Most of the students had been afraid to answer the questions honestly and so was M.J. as he had not wanted to have problems. M.J. also explained that before this questionnaire, there had been another questionnaire organised within the school to which the students had answered honestly but then the teacher R.V. went \u201ccrazy\u201d and yelled at them. It was one of the reasons why they had not honestly answered the questionnaire organised by the education authorities.","25.On 18 June 2012 the State Attorney\u2019s Office rejected the applicant\u2019s criminal complaint. The relevant part of the decision reads:","\u201cThe statements of the students show that the suspect has an unconventional approach. Some of the students no longer pay attention to what he says when teaching, because on several occasions he has used improper words. However, he has never addressed a particular student. It can be therefore concluded in the case at issue, given the circumstances in which the impugned conduct occurred, that the insults were not of such intensity as to amount to harassment. In accordance with the courts\u2019 case-law, examples of psychological harassment concern the recurrent insulting of minors, as a result of which they sustain severe psychological trauma damaging their physical and mental health. Although [the applicant] sought medical treatment in connection with the impugned conduct, and although he suffered certain health problems, they were not of such intensity that it can be concluded that his physical and mental health was damaged. Moreover, in order to amount to psychological harassment, insults should not only be the result of an aroused reaction, but the result of an intensive aversion to the victim, and an expression of cruel and inhuman behaviour. From the available information, and in particular from the statements of [the applicant\u2019s] classmates, it cannot be concluded that the suspect\u2019s conduct towards [the applicant] was of such a nature that it would [amount to] cruel and inhuman behaviour. This is particularly true in view of [the students\u2019] statements that [R.V.] usually behaved in an unusual manner, and that some of the students did not pay attention [to such behaviour], and the victim himself did not suffer further [adverse consequences such as] bad marks at school.\u201d","26.The State Attorney\u2019s Office advised the applicant that he could take over the criminal prosecution as a subsidiary prosecutor in relation to the alleged offence of harassment or institute a private prosecution in relation to charges of insult.","27.In August 2012 the applicant brought his complaints before the Constitutional Court (Ustavni sud Republike Hrvatske). He alleged, in particular, harassment by the teacher at school and inadequate response of the school, the Ministry, the Agency and the State Attorney\u2019s Office concerning his complaints of harassment. He also challenged the decision concerning the evaluation of his final mathematics exam (see paragraphs 10-11 above).","28.On 18 October 2012 the Constitutional Court declared the applicant\u2019s constitutional complaints inadmissible on the grounds that the State Attorney\u2019s Office\u2019s decision and the decision on the evaluation of his final mathematics exam had not been measures or decisions which had decided any of his rights on the merits against which a constitutional complaint was permitted.","29.The decisions of the Constitutional Court were served on the applicant on 30 October 2012."],"216":["1. The applicant, Mr S\u0142awomir D\u0142ugosz, is a Polish national, who was born in 1974 and lives in Espergaerde, Denmark. He was represented before the Court by Ms M. G\u0105siorowska, a lawyer practising in Warszawa.","2. The Polish Government (\u201cthe Government\u201d) were represented by their Agent, Ms J. Chrzanowska and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.","The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. On 25 June 2015 the applicant had an accident on a motorway when he lost control of his motorcycle and fell onto the road. The police and an ambulance came and the applicant explained the accident to them. According to the police, at first the applicant advanced a version of events involving the participation of another vehicle in the accident. The police officers examined the motorcycle and the traces on the tarmac and found no such indication. The applicant then admitted that whilst driving on the right lane, on cruise control, he had lost his balance because of a blast of air when another car had overtaken him on the left lane.","5. The applicant was taken to a hospital. According to the medical report, he was admitted with an injury to his vertebrae due to the accident. It was established that the applicant never lost consciousness during or after the accident. The medical report indicated that the applicant had \u201cexpressed himself in a logical manner\u201d and had had \u201cgood orientation of his surroundings and time\u201d. The applicant received painkillers including morphine.","6. On 25 June 2015 at around 4 p.m., when the applicant was in hospital, two police officers arrived. They carried out a test to determine whether the applicant had been under the influence of alcohol. The test proved negative and the applicant signed the relevant report. The police officers again asked the applicant about the accident and handed him a fine for the sum of 100 Polish zlotys (PLN) (approximately 25 euros (EUR)) for having driven at a speed preventing full control of his motorcycle (traffic offence under Article 97 of the Code of Misdemeanours, Kodeks wykrocze\u0144 ). The applicant accepted the fine and signed the form. The applicant also signed a third form confirming that the police had taken the vehicle registration document into the police deposit.","7. On 2 July 2015 the applicant, represented by a lawyer, lodged a request to quash the fine ( wniosek o uchylenie mandatu ) with the Nowy Tomy\u015bl District Court. He stated that he had not been correctly informed of his rights \u2013 in particular that he had had the right to refuse to pay the fine \u2013 and that he had not been in a fit state to make his own decisions correctly and in an unconstrained manner. The applicant requested hearing witnesses: a doctor who treated him at the hospital, his girlfriend whom he had called immediately after the accident, and Z.S., who had given him first aid. He argued that the accident had been caused by an unspecified car that had \u201cbrushed him\u201d when it had been overtaking his motorcycle too closely and had made him lose his balance.","8. On 9 February 2016 the Nowy Tomy\u015bl District Court refused the request. The court underlined that the fine had been final ( mandat prawomocny ) since the applicant had accepted it. The domestic law provided for the quashing of the final fine only in specific circumstances when the action had not constituted an office, if it had been issued to a minor, or if the person had acted in a situation of legitimate self-defence or otherwise could not be held accountable for the action. The court had considered that the applicant\u2019s behaviour on the motorway had constituted an offence, thus there had been no ground for quashing the fine.","9. In particular the court established that, when the applicant had accepted the fine at the hospital, he had been in a state which allowed him to take conscious and independent decisions. Moreover, he had explained the events to the police officers immediately after the accident, before being taken to the hospital and receiving painkillers. That account was consistent with other elements collected by the police (the state of the motorcycle and the traces on the road). The police officers testified that they had interviewed the applicant in the hospital with the agreement of the medical staff and that the applicant had been conscious and had had no difficulty to express himself in a logical manner. They had advised the applicant about the legal consequences of accepting the fine. While the police officers were in his room the applicant had been involved in a telephone conversation with his brother giving detailed and clear explanations of his situation and instructions concerning picking up the motorcycle from the police car park. The court examined the medical documents, police notes made after the accident, and transcripts of the telephone conversations between the traffic police and their superiors. As regards the witness testimonies, it heard the applicant and the police officers and decided not to hear the applicant\u2019s girlfriend and another person as neither had witnessed the accident.","10. On 10 July 2015 the applicant notified the Nowy Tomy\u015bl District Prosecutor that his accident had been caused by an unidentified car that had pushed him onto the hard shoulder. The prosecutor finally discontinued the investigation finding no evidence that an offence had been committed. On 6 April 2016 the Nowy Tomy\u015bl District Court upheld the challenged decision. The court established that the applicant had provided two versions of the events: one to the police officers, whom he had told that he had lost his balance because of the blast of air caused by the car which overtook him, and the other to his girlfriend involving the direct participation of another vehicle in the accident. The court also noted that the police officers did not find any evidence on the site or on the motorcycle to prove that another vehicle had been involved; in particular the tyre marks left on the road by the motorcycle had excluded a violent manoeuvre by the driver. In conclusion, the court decided that the version put forward by the police officers was more plausible in the light of the evidence collected.","11. The applicant wrote a complaint about the manner in which the police officers handled the event. The Nowy Tomy\u015bl District Police Office informed the applicant that after having investigated his complaints they had been considered manifestly ill-founded and unsubstantiated.","Relevant domestic law The Code of Misdemeanours ( kodeks wykrocze\u0144 )","The Code of Misdemeanours ( kodeks wykrocze\u0144 )","The Code of Misdemeanours ( kodeks wykrocze\u0144 )","Article 97 of the Code of Misdemeanours provides that a driver who breaches provisions of the Road Traffic Act or other regulations shall be liable for a fine of up to 3,000 Polish zlotys or a reprimand.","The Code of Conduct in Misdemeanour Cases (Kodeks post\u0119powania w sprawach o wykroczenia)","Article 97 provides, as far as relevant:","\u201c[...] \u00a7 2. A person who commits a misdemeanour may refuse to accept the fine ( mandat karny ).","\u00a7 3. The officer who imposes a fine is obliged to determine its amount, the misdemeanour committed, and to inform the offender about the right to refuse to accept the fine and about the legal consequences of such refusal.\u201d","Article 99 provides, as far as relevant:","\u201cIn the event of refusal to accept the fine [...] the authority whose officer has imposed it lodges with a court a request for punishment. In this request it should be noted that the accused ( obwiniony ) refused to accept the fine [...] and, if possible, reasons should also be given for refusal.\u201d","Article 101 provides, as far as relevant:","\u201c[...] \u00a7 2. The court competent to examine the request for annulment of the fine is the one in whose area the fine was imposed. The court shall examine the case at a hearing. The punished person and the authority which imposed a fine [...] have the right to participate in the hearing. Before issuing its decision the court may order appropriate actions to examine the grounds for annulment of the fine.\u201d"],"217":["2.The applicants were born in 1974 and 1966 respectively and live in Sofia. The first applicant was represented by Ms D. Marcheva, a lawyer practising in Sofia. The second applicant was represented by Mr P. Borisov, a lawyer practising in Pernik.","3.The Government were represented by their Agent, Ms I. Stancheva\u2011Chinova, of the Ministry of Justice.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The first applicant is a single mother who lives with and cares for her two children, born in 2003 and 2006 respectively.","6.On 30 September 2013 the first applicant applied, under section 7(9) of the Family Allowances for Children Act 2002 (\u201cthe FACA\u201d), for a family allowance for families of children who had only one living parent (see paragraph 37 below).","7.The Directorate for Social Family Allowances in Krasno Selo (\u201cthe Directorate\u201d) refused to pay the allowance to the first applicant in an order issued on 14 October 2013. The reason given was that her situation did not fulfil the legal requirements set out in section 7(9) of the FACA; in particular, she had not submitted the documents required under section17(3), points 13 and 14, of the Regulations for the implementation of the FACA (see paragraph 41 below).","8.The first applicant challenged the order before the higher administrative body, the Regional Agency for Social Assistance (\u201cthe Agency\u201d), which upheld it on 4December 2013. In particular, having established that the first applicant\u2019s family consisted of her and her two children, the Agency found that she had not submitted any evidence to show that her children had been recognised by their father and that he had died. Likewise, she had not produced a certificate attesting that the children were their father\u2019s statutory heirs (an \u201cheirs certificate\u201d) or a family-status certificate showing that she was not married.","9.The first applicant brought judicial review proceedings.","10.She pointed out that she had submitted a certificate showing that the children\u2019s father was unknown. As to an heirs certificate, it was objectively impossible for her to produce such a document, given that the children\u2019s paternity had not been established. She further argued that the administration\u2019s refusal to grant her the allowance in question was unlawful, as it was contrary to Article 6 \u00a7 2 of the Constitution, which prohibited discrimination on the basis, among other things, of origin (see paragraph 32 below). The legal definition of \u201cchildren with only one living parent\u201d, set out in paragraph1, point 9, of the Additional Provisions of the FACA (see paragraph 40 below), could not exclude children who had not been recognised by their father. If the legislature had meant for section 7(9) of the FACA to apply only to children one of whose parents had died, they would have expressly said so by using the formulation \u201cchildren with one deceased parent\u201d instead of the current formulation \u201cchildren with only one living parent\u201d.","11.The applicant referred to Article 16 of the revised European Social Charter (see paragraph 56 below), Article 23 of the International Covenant on Civil and Political Rights (\u201cthe ICCPR\u201d \u2013 see paragraph 61 below) and Article 9 of the International Covenant on Economic, Social and Cultural Rights (\u201cthe ICESCR\u201d \u2013 see paragraph 62 below).","12.In a judgment of 14 March 2014, the Sofia City Administrative Court set aside the Directorate\u2019s order and remitted the case to it to decide on the merits of the first applicant\u2019s request in line with the reasoning in the court\u2019s judgment.","13.The City Court established that the first applicant\u2019s family status corresponded to that of \u201cunmarried individuals\u201d and that she cared for her two minor children alone. The children\u2019s birth certificates indicated their father as \u201cunknown\u201d. The court went on to observe that the law did not differentiate between children living in families as defined in paragraph 1 of the Additional Provisions of the FACA (see paragraph 39 below) and children in families where the parents were not married. It was unacceptable to place children whose parents were not married or did not live together, or whose fathers had not recognised them, in a less favourable position than that of children growing up in families that matched the legal definition above. Accordingly, a mother and her two children who have not been recognised by their father, the latter being unknown, represented a family within the meaning of the above-mentioned provision. Therefore, such children had only one living parent, given that the other one was unknown.","14.The City Court went on to find that the refusal by the administrative body to grant the allowance in question to the first applicant was contrary to Article 3 \u00a7 1 of the 1989 UN Convention on the Rights of the Child, in force in respect of Bulgaria since 1991 (see paragraph 60 below). The refusal was not in the best interest of the children, and that interest had to be the central consideration in the decision-making process of any institution, be it a private or a public one. Accordingly, if the legislation stated that the State provided assistance to the children of a parent whose husband or wife had died, it was reasonable to conclude that this also applied to children with only one parent, irrespective of whether the other parent had died or the children had not been recognised by their father.","15.The court further held that depriving families in which one of the parents was unknown, or had not recognised the children, of the allowance in question would result in discrimination on the basis of social status vis\u2011\u00e0\u2011vis the parent who was alive. The law had envisaged that the allowance was due to families with children who had only one living parent, irrespective of the income of the family. Consequently, the granting of that family allowance had to be extended to all children who were being raised by only one parent. As a result of the absence of their second parent by virtue of being unknown, those children were in an identical situation to children one of whose parents had died.","16.Indeed, a father was not obliged to recognise a child if he did not want to do so; a mother did not dispose of any legal mechanism to compel the father to recognise the child of his own motion, or to marry her. In both cases, children living in families with only one parent had the same needs and, in both cases, the State had a corresponding responsibility to ensure acceptable conditions for their care. The family allowance due to families under section 7(9) of the FACA (see paragraph 37 below) was determined precisely in view of the needs of children living in such families. The fact that the first applicant was a single mother could not be interpreted to the detriment of her children and be used in order to refuse to grant the family the above-mentioned allowance. Accordingly, the authorities were obliged to grant her the allowance towards providing care for her children as their only living parent.","17.Upon an appeal by the Directorate, on 22 October 2014 the Supreme Administrative Court (\u201cthe SAC\u201d), in a final judgment, quashed the lower court\u2019s judgment and rejected the first applicant\u2019s challenge to the Directorate\u2019s order of 14 October 2013 (see paragraph 7 above).","18.The SAC held that while the lower court had correctly established the facts, it had wrongly applied the law. In particular, in order to be eligible for the family allowance provided for by section 7(9) of the FACA, it was necessary to produce an heirs certificate and a family-status certificate, in accordance with the requirement under section 17(3), points 13 and 14, of the Regulations for the implementation of the FACA (see paragraph 41 below). The central consideration was, therefore, whether the case concerned a parent who had survived the death of his or her spouse and parent of his or her children. The common children of the deceased and surviving parents had to be the legal heirs of the former. That was the reason for the requirement to submit a certificate attesting to this with the request for the family allowance. Likewise, there was a requirement that the parent making the request had to be single at the time of the request.","19.Consequently, the lower court had wrongly concluded that the key element was whether the first applicant as a single mother and her children represented a family. Instead, the crux of the matter was whether there was a surviving parent who had not remarried. The outstanding question therefore was whether the legal provision at stake applied only to situations of semi-orphaned children, or also to situations of children whose fathers had not recognised them. In order to establish the meaning of that provision, namely whether children who had not been recognised have equal rights with semi-orphaned children, it was necessary to look at the intentions of the legislature.","20.In particular, paragraph 2 of the bill of 13 March 2012 for amending the FACA stated that the reason for introducing section 7(9) of the FACA was to improve the protection available to the most vulnerable group of children, namely those who were being brought up by only one living parent. The logic was that the optimal environment for every child was a family, as well as that there were more difficulties associated with caring for a child one of whose parents had died. Therefore, it could be concluded that, by making this family allowance available irrespective of the income of the family, the legislature had envisaged that it applied only in respect of families in which one of the parents had died.","21.That had also been the conclusion of the Constitutional Court (\u201cthe CC\u201d) in its decision no. 3 of 27 June 2013 in which it had rejected the request by the Ombudsperson to declare unconstitutional section 7(9) of the FACA in so far as it used the word \u201cliving\u201d (see paragraphs 43-43 below). Specifically, the CC had found that the loss of a parent was the single most important factor affecting any given family environment. Thus, children most acutely affected by the loss of a parent were, in the first place, those whose parents had both died and, in the second place, those one of whose parents had died. The idea behind the law was that there was a significant difference between a child who is cared for by a surviving parent and a child who is cared for by a parent who has not married. In the latter case, the child had the right to bring an action to establish paternity. As a result of such an action, the child would become part of another family, with all the personal and economic consequences that would bring. This in turn was in the best interest of the child as it was of crucial importance for the establishment of his or her legal status.","22.The CC had rightly determined that the situation of a child one of whose parents has died was not identical to that of a child who was cared for by a single parent for a different reason. The introduction of a different regime of protection in respect of these two categories was justified in order to ensure equal protection to children cared for by only one living parent.","23.This led to the conclusion that a broad interpretation of section 7(9) of the FACA was contrary to the purpose of the law. Were the provision to be interpreted broadly, this would result in a much larger group of rather dissimilar cases which would have to be treated equally, in breach of the principle of equality before the law. That in itself would be unjust.","24.The City Court had wrongly held that refusing to pay the family allowance to the first applicant was in breach of Article 3 of the Convention on the Rights of the Child (see paragraph 14 above). The provision in question provided that States were obliged to ensure that children benefited from the care and protection necessary for their well-being, taking into account the rights and obligations of their own parents or other caregivers, including by means of all necessary administrative and legal measures. It was precisely to provide for the best interests of the child that the legislature had introduced section 7(9) of the FACA, given that it provided the requisite care for children one of whose parents had died.","25.According to information provided by the Bulgarian National Statistical Institute, a State agency, the number of children with unknown fathers born in the country between 2007 and 2015 was on average 12,400per year.","26.As of February 2017, according to information provided by the State Agency for Social Assistance, the State was paying allowances under the FACA to the families of a total of 640,952 children, while the specific allowance under section7(9) of the FACA was being paid to the families of 10,570 children with one deceased parent.","27.The second applicant is a single mother who lives with and cares for her minor son born in 2007.","28.She complained to the Commission for the Protection against Discrimination (\u201cthe Commission\u201d) about her family being discriminated against as a result of her inability to obtain the allowance provided for by section 7(9) of the FACA because the father of her children was unknown as opposed to deceased. On 13 June 2014 the Commission found that section 7(9) of the FACA provided for less favourable treatment of families of children with only one parent in comparison with families in which one of the parents had died. That, the Commission ruled, was direct discrimination on the basis of \u201cpersonal status\u201d, \u201corigin\u201d and \u201cfamily status\u201d.","29.The Council of Ministers brought judicial review proceedings in respect of this decision. The second applicant participated in the proceedings as an interested party and submitted a reply to the position of the Council of Ministers.","30.In a judgment of 17 December 2014, the Sofia City Administrative Court overturned the Commission\u2019s decision. The judgment indicated that it could be appealed against within fourteen days from the parties being notified of it (see paragraph 55 below). The second applicant was notified of it on 22 December 2014. She did not appeal against the judgment and neither did the Commission. The judgment thus became final on 20 January 2015.","31.On 21 April 2015 the second applicant enquired with the Commission about developments in the case and was told orally by a staff member that the Commission had not appealed against the judgment. On 1July 2015 she wrote to the Commission repeating her request, but received no reply."],"218":["2.The applicant was born in 1960 and lives in Kragujevac. At the relevant time, he was a journalist and an editor-in-chief of Svetlost, a weekly news magazine based in the same town.","3.The applicant was represented by Ms D. Raki\u0107evi\u0107, a lawyer practising in Kragujevac.","4.The Government were represented by their Agent, Ms Z. Jadrijevi\u0107 Mladar.","5.The facts of the case, as submitted by the parties, may be summarised as follows.","6.On 3 June 2010 Svetlost published an article titled \u201cShame through Silence\u201d (\u0106utanjem do crvenila). This piece, written by the applicant, in so far as relevant reads as follows:","\u201c[1.] Kragujevac has reason to be ashamed. Towards the end of April, ... the head of a municipal branch office in [D] firstly, in the city centre and in front of the main post office building, falsely introduced himself to a street vendor as a market inspector ... [and then] ... invited her into ... [his car under the pretext] ... that certain documents had to be copied. [Thereafter he] ... drove the girl away [with him] to Kara\u0111or\u0111eva Street ... where he tried to rape her. The girl was under age and of Romani origin. [Her] resistance, screams and crying ... [ultimately] ... thwarted the assailant. The underaged girl was warned not to tell anyone what had happened ... [and had to] ... give her telephone number. The next day, when ... [the head of the municipal branch office] ... called her and arranged to meet her, ... [he] ... was met by the police and arrested. He was [also] detained for a period of forty-eight hours and then brought ... before an investigating judge. The assailant was charged with false impersonation, unlawful deprivation of liberty and attempted rape.","[2.] The proceedings have commenced and they shall, of course, have their conclusion. The local police, otherwise very prompt when it comes to informing [the public] even of much lesser offences, simply kept silent ... [about the incident] ... The press also received no information from the investigating judge ... or the public prosecution service ... which has otherwise [also] been cooperative with respect to providing information concerning its activities. This magazine indirectly found out about the horrific ordeal suffered by our underaged fellow citizen. The police only provided us with information following receipt of our written request asking them to confirm or deny the details which we had learnt from others.","[3.] Non-governmental organisations focused on Romani rights issues also stayed quiet. The case of an underaged street vendor ... was probably not a priority for their rich donors. The city administration likewise did nothing with respect to their own official ... Why did they [all] remain silent ... uncomfortable questions will soon have to be answered by those in power ... Did the police keep quiet about the attempted rape just because it concerned a Romani girl? Did anyone, and if so who, from the city administration intervene in order to cover up the ... [shameful incident] ... [Was the idea to thereby] ... buy time so as to make it possible for the \u2018head of the municipal branch office to strike a deal with the Gypsies, until they are paid off to withdraw their complaint of attempted rape\u2019? Lastly, but most importantly, whose interest is it in to protect the bully, who is getting his salary paid from the [municipal] budget, while in his free time attempting to rape his underaged fellow citizens? For as long as these questions remain unanswered by those in power, the City of Kragujevac will be unable to remove its shame [regarding this incident] ...\u201d","7.On the same date, that is 3 June 2010, Svetlost published another article regarding the alleged incident titled: \u201cThe false inspector from ... [D] ... near Kragujevac ... [a]ttempted to rape an underaged girl\u201d (La\u017eni inspektor iz ... [D] ... kod Kragujevca ... [p]oku\u0161ao da siluje maloletnicu). This piece, written by Ms A, a journalist employed with Svetlost, in so far as relevant, reads as follows:","\u201c[1.] ... [Mr B][1] ... (44), the head of the municipal branch office in ... [the village of D] ... near Kragujevac, was brought before an investigating judge of the Kragujevac Court of First Instance on April 30th of this year under suspicion of having committed the criminal offences of unlawful deprivation of liberty and performing illicit sexual acts on an underaged girl, as confirmed to Svetlost by ... [the police] ...","[2.] The criminal complaint against ... [Mr B] ... was lodged by an underaged girl who, together with her mother, had been selling, on April 27th of this year and in front of the main post office building in Kragujevac, minor domestic supplies. The police explored the allegations and, after forty-eight hours of detention, ... brought ... [Mr B] ... before an investigating judge. Despite the incident having taken place in late April, the police did not issue their usual press release until they received our request in this regard.","[3.] The criminal complaint lodged by the underaged girl states that on April 27th, at around 2.00 p.m., ... [Mr B] ... introduced himself as a market inspector and told them that they could freely sell their merchandise in front of the post office building because he was in charge of that area. One hour later he returned with his car in front of the post office building and ... invited the girl to approach the vehicle. When the girl came near, ... [Mr B] ... told her to enter the car in order to sign a document and then locked the front passenger door and drove away [with her] from the scene. He explained to the girl that certain documents had to be copied and started touching her leg, according to the criminal complaint.","[4.] The girl then told the false inspector that she could not leave her mother, but ... [Mr B] ... asked her to calm down, while parking his car in Kara\u0111or\u0111eva Street ... He started touching her and kissing her on the neck ... [and] ... the girl started screaming but he [then] turned on the music loudly [in his vehicle] ... [Mr B] tore the buttons off of her trousers ... [and the] ... clip off of her bra. The girl punched against the car windows, while ... [Mr B] ... told her to calm down and that he would not touch her [again]. He then drove her away to Nikola Pa\u0161i\u0107 Street, proposed that they have a coffee together, and [told] her not to tell anyone about what had happened. One day later, ... [Mr B] ... called the girl on the phone ... her mother answered and an arrangement was made for the meeting to take place in front of the post office building. There, instead of being met by the girl, ... [Mr B] ... was met by the police and taken to the police station.\u201d ","8.As noted above, at the time of publication of the two articles the applicant was also the editor-in-chief of Svetlost. The first and second articles were published on pages 5 and 26 of the news magazine respectively.","9.Following a preliminary criminal investigation, on 21 July 2010 Mr B was charged by the Kragujevac Public Prosecutor\u2019s Office (Osnovno javno tu\u017eila\u0161tvo u Kragujevcu) in connection with the above-described incident. The charges alleged that he had committed the crimes of unlawful deprivation of liberty (protivpravno li\u0161enje slobode) and illicit performance of sexual acts (nedozvoljene polne radnje).","10.The Kragujevac Court of First Instance (Osnovni sud u Kragujevcu) thereafter heard the defendant and the alleged victim, as well as a number of witnesses. It furthermore took into account the statements given and the documentation obtained in the course of the preliminary proceedings.","11.In the meantime, on 17September 2010, the alleged victim provided the court with her own, as well her mother\u2019s, court-certified statements of 16September 2010 wherein they both fully recanted their earlier testimony accusing Mr B of the crimes in question.","12.On 25 December 2012 the Kragujevac Court of First Instance acquitted Mr B of all charges.","13.On 17 June 2013, following a remittal on appeal, the same court again acquitted Mr B of all charges.","14.On 30 December 2013 this judgment was upheld by the Kragujevac Appeals Court (Apelacioni sud u Kragujevcu) at second instance and it thereby became final.","15.In July 2010 Mr B lodged a civil defamation claim with the Kragujevac High Court (Vi\u0161i sud u Kragujevcu) against the applicant, Ms A and Svetlost regarding the two published articles.","16.On 23 December 2010 this court ruled partly in favour of Mr B and ordered the applicant and Svetlost only, not Ms A, to pay him jointly a total of 100,000 Serbian dinars (RSD), as well as statutory interest as of that date, on account of the mental anguish suffered as a consequence of the breach of his honour and reputation, plus RSD 28,220 in litigation costs. The court furthermore ordered the said two respondents to publish this judgment, without comment or delay, in their own news magazine. The Kragujevac High Court explained, as regards the first article and with specific reference to paragraph 1 thereof, that, inter alia, the applicant as its author had stated as fact that Mr B had committed the crimes of unlawful deprivation of liberty, false impersonation and attempted rape despite the fact that the criminal proceedings against the latter had still been pending, thereby breaching his right to be presumed innocent. Furthermore, the applicant had included an untrue statement of fact when he had reported that Mr B had committed the crime of attempted rape even though he had known that the police had not pressed charges for that particular criminal offence (see paragraph 6 above). With respect to the second article, prepared by Ms A and specifically as regards paragraphs 1, 3 and 4 thereof, the court rejected the plaintiff\u2019s claim, noting that this piece had been written accurately based on the information provided by the police themselves (see paragraph 7 above). Lastly, the court noted the existence of the statement of 16September 2010 (see paragraph 11 above), but reiterated that it had no bearing on the present case since it had been given after the publication of the articles in question.","17.On 4 April 2011 the Kragujevac Appeals Court partly amended the judgment delivered at first instance. In so doing, it ordered the applicant, MsA and Svetlost to pay Mr B jointly a total of RSD 50,000 (approximately 485 euros, EUR, at the time) on account of the mental anguish suffered as a consequence of the breach of his honour and reputation, as well as statutory interest from 23 December 2010, plus RSD 14,110 in litigation costs (approximately EUR 137 at the time). The obligation on the part of the respondents to publish the judgment was upheld. In its reasoning, which was essentially along the lines of that offered by the Kragujevac High Court, the Kragujevac Appeals Court nevertheless held, inter alia, that: (a)the award of RSD 100,000 had been excessive, given the existing interest of the public to be informed of the incident in question, albeit in a more appropriate manner; (b) Ms A had also incorrectly stated as fact in the title of her piece, despite the more accurate text just below it, that Mr B had \u201cattempted to rape an underaged girl\u201d; and (c) Mr B could not be considered a \u201cpublic figure\u201d and as such someone who should have had to withstand more criticism, since he had merely been employed as the head of a municipal branch office and had not been a local government official (slu\u017ebenik u teritorijalnoj jedinici lokalne samouprave).","18.The above rulings relied on, inter alia, some of the relevant provisions of the Obligations Act and the 2003 Public Information Act summarised in paragraphs 30-36 below.","19.On 20 May 2011 the applicant lodged a constitutional appeal (ustavnu \u017ealbu) against the Kragujevac Appeals Court\u2019s judgment of 4 April 2011.","20.On 3 December 2013 the Constitutional Court (Ustavni sud) dismissed the appeal. It noted, inter alia, that it was unlawful to divulge information concerning an ongoing criminal case, even if this information was accurate, or to breach one\u2019s right to be presumed innocent. In any event, an appropriate balance had to be struck between the freedom of expression, on the one hand, and the protection of the reputation of the person concerned on the other, and the civil courts in the case at hand had done so properly.","21.The applicant was served with the Constitutional Court\u2019s decision on 6February 2014.","22.On 4 February 2014 Mr B lodged an enforcement request (predlog za izvr\u0161enje) with the Kragujevac Court of First Instance as regards the civil judgments of 23 December 2010 and 4April 2011 (see paragraphs 16 and 17 above).","23.On 6 February 2014 the Kragujevac Court of First Instance issued the enforcement order (re\u0161enje o izvr\u0161enju).","24.On 5 August 2014 the bailiff (izvr\u0161itelj) ordered the applicant to pay, within three days, the sums in question and noted, inter alia, that should he fail to comply his entire property would be subject to enforcement (izvr\u0161enje na celokupnoj imovini).","25.According to the information provided by the applicant, since 15May 2013 he had been unemployed and lacking any movable assets of relevance to the enforcement procedure. This was also why the civil judgments in question had not yet been enforced. The applicant, however, stated that he did own a flat in which he had been living with his family and that Mr B could yet seek enforcement on this property.","26.The Government confirmed that as of April 2020 the civil judgments at issue remained unenforced.","27.In his statement given to the Kragujevac High Court on 19 October 2010, as part of the civil defamation proceedings, Mr B recounted that after the publication of the articles in question he had called the applicant and had asked him why such pieces had been published at all. The applicant, in response, had offered him the opportunity to deny the allegations in the newsmagazine\u2019s next issue, but Mr B had refused this offer because he had not wanted to debate the matter through the media. Lastly, Mr B had informed the applicant that he would instead be bringing legal proceedings in this regard.","28.On 9 June 2010 Mr B visited a neuropsychiatrist, allegedly as a consequence of the distress which he had suffered due to the publication of the articles. On the same date, he was also provided with a certificate attesting that he was temporarily incapable of working.","29.In April 2010 the average gross and net monthly salaries in Kragujevac were RSD 51,240 and RSD 36,846, approximately EUR 497 and EUR 357 respectively.","RELEVANT LEGAL FRAMEWORK and jurisprudence","30.Under Articles 199 and 200, inter alia, anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may, depending on the duration and intensity of the said mental anguish, sue for financial compensation before the civil courts and, in addition, request other forms of redress \u201cwhich may be capable\u201d of affording adequate non-pecuniary satisfaction.","31.Article 3 \u00a7 1 provided that prior to the publication of information regarding \u201can event, an occurrence or a certain person\u201d, the journalist and the responsible editor were to \u201cverify its origin, veracity and comprehensiveness\u201d with due diligence.","32.Article 9 provided, inter alia, that the right to the protection of one\u2019s privacy was to be limited for holders of State or political positions if the information in question was of public relevance given their functions. The rights of such persons were to be limited in proportion to the justified interest of the public in each case.","33.Article 30 \u00a7\u00a7 2 and 4 provided, inter alia, that the editor-in-chief of a media outlet was to have the status of the responsible editor of that outlet. The responsible editor of a specific edition, column, or programme was to be held responsible for the contents which he or she edited.","34.Article 37 provided, inter alia, that a media outlet could not pronounce anyone guilty of an offence in the absence of a final judicial or another decision rendered in this connection.","35.Article 79 provided, inter alia, that any person who suffered pecuniary and\/or non-pecuniary harm as a consequence of incorrect or incomplete information published by a media outlet, or due to the publication of other information in breach of this Act, was entitled to adequate compensation quite apart from any other available redress.","36.Article 80 provided, inter alia, that the editor-in-chief and the founder of a media outlet, who would have been able to establish through due diligence the inaccuracy or incompleteness of the information prior to its publication, were to bear joint liability for any pecuniary and\/or non-pecuniary damage caused by the publication of the information in question. The same obligation, for example, also applied when harm was caused by an \u201cinadmissible publication\u201d of accurate information regarding one\u2019s private life or concerned accusations involving the commission of a criminal offence.","37.This Act was subsequently amended, through decisions rendered by the Constitutional Court, but was ultimately repealed and replaced by other legislation in 2014.","38.Article 2 provided, inter alia, that municipal branch offices were to be established for the purpose of making it easier for the citizens concerned to benefit from administrative services at the local level.","39.Article 4 provided, inter alia, that municipal branch offices were to perform administrative and technical tasks, keep official records and issue official certificates, as well as prepare reports and statistics in this context.","40.These Rules provided, inter alia, that executive employees working for municipal branch offices could engage in activities such as keeping of official records, issuing of various certificates, preparing reports and statistics, and dealing with civil defence matters. They could also take on other responsibilities at the specific request of municipal officials.","41.As needed and if necessary, municipalities may set up their local branch offices in order to carry out some of their various administrative functions more effectively. Such branch offices may be established on the bases of municipal regulations (statutima op\u0161tina) while their remit may be defined through decisions adopted by the municipal assemblies (odlukama op\u0161tinskih skup\u0161tina). Heads of local branch offices shall be municipal employees appointed either by the municipal assemblies themselves or by other bodies authorised to do so by the municipal assemblies."],"219":["12.The three applications were introduced following revelations by Edward Snowden concerning the electronic surveillance programmes operated by the intelligence services of the United States of America and the United Kingdom.","13.The applicants, who are listed in the Appendix, all believed that due to the nature of their activities, their electronic communications were likely to have either been intercepted by the United Kingdom intelligence services; obtained by the United Kingdom intelligence services after being intercepted by foreign governments; and\/or obtained by the United Kingdom authorities from communications service providers (\u201cCSPs\u201d).","14.Internet communications are primarily carried over international sub\u2011marine fibre optic cables operated by CSPs. Each cable may carry several \u201cbearers\u201d, and there are approximately 100,000 of these bearers joining up the global Internet. A single communication over the Internet is divided into \u201cpackets\u201d (units of data) which may be transmitted separately across multiple bearers. These packets will travel via a combination of the quickest and cheapest paths. Consequently, some or all of the packets of any particular communication sent from one person to another, whether within the United Kingdom or across borders, may be routed through one or more other countries if that is the optimum path for the CSPs involved.","15.The Edward Snowden revelations made in 2013 indicated that Government Communications Headquarters (\u201cGCHQ\u201d, being one of the United Kingdom intelligence services) was running an operation, codenamed \u201cTEMPORA\u201d, which allowed it to tap into and store huge volumes of data drawn from bearers. The United Kingdom authorities neither confirmed nor denied the existence of an operation codenamed TEMPORA.","16.However, according to the March 2015 Report of the Intelligence and Security Committee of Parliament (\u201cthe ISC report\u201d \u2013 see paragraphs142\u2011149 below), GCHQ was operating two major processing systems for the bulk interception of communications.","17.The first of the two processing systems referred to in the ISC report was targeted at a very small percentage of bearers. As communications flowed across the targeted bearers, the system compared the traffic against a list of \u201csimple selectors\u201d. These were specific identifiers (for example, an email address) relating to a known target. Any communications which matched the simple selectors were collected; those that did not were automatically discarded. Analysts then carried out a \u201ctriage process\u201d in relation to collected communications to determine which were of the highest intelligence value and should therefore be opened and read. In practice, only a very small proportion of the items collected under this process were opened and read by analysts. According to the ISC report, GCHQ did not have the capacity to read all communications.","18.The second processing system was targeted at an even smaller number of bearers (a subset of those accessed by the process described in the paragraph above) which were deliberately targeted as those most likely to carry communications of intelligence interest. This second system had two stages: first, the initial application of a set of \u201cprocessing rules\u201d designed to discard material least likely to be of value; and secondly, the application of complex queries to the selected material in order to draw out those likely to be of the highest intelligence value. Those searches generated an index, and only items on that index could be examined by analysts. All communications which were not on the index had to be discarded.","19.The legal framework for bulk interception in force at the relevant time is set out in detail in the \u201crelevant domestic law\u201d section below. In brief, section 8(4) of the Regulation of Investigatory Powers Act 2000 (\u201cRIPA\u201d \u2013 see paragraph 72 below) allowed the Secretary of State to issue warrants for the \u201cinterception of external communications\u201d, and pursuant to section 16 of RIPA (see paragraphs 84-92 below) intercepted material could not be selected to be read, looked at or listened to, \u201caccording to a factor which is referable to an individual who is known to be for the time being in the British Islands\u201d.","20.Chapter 12 of the Interception of Communications Code of Practice (\u201cthe IC Code\u201d \u2013 see paragraph 116 below) set out the circumstances in which the United Kingdom intelligence services could request intelligence from foreign intelligence services, and the procedures which had to be followed for making such a request. Chapter 12 was added to the IC Code after the Investigatory Powers Tribunal (\u201cthe IPT\u201d) ordered the intelligence services to disclose their arrangements for intelligence sharing in the course of the proceedings brought by the applicants in the third of the joined cases (\u201cthe Liberty proceedings\u201d \u2013 see paragraphs 28-60 below).","21.Chapter II of RIPA and the accompanying Acquisition of Communications Data Code of Practice governed the process by which certain public authorities could request communications data from CSPs (see paragraphs 117-121 below).","22.The National Security Agency (\u201cNSA\u201d) acknowledged the existence of two operations called PRISM and Upstream.","23.PRISM was a programme through which the United States\u2019 Government obtained intelligence material (such as communications) from Internet Service Providers (\u201cISPs\u201d). Access under PRISM was specific and targeted (as opposed to a broad \u201cdata mining\u201d capability). The United States\u2019 administration stated that the programme was regulated under the Foreign Intelligence Surveillance Act (\u201cFISA\u201d), and applications for access to material through PRISM had to be approved by the Foreign Intelligence Surveillance Court (\u201cFISC\u201d).","24.Documents from the NSA leaked by Edward Snowden suggested that GCHQ had access to PRISM since July 2010 and used it to generate intelligence reports. GCHQ acknowledged that it acquired information from the United States\u2019 which had been obtained via PRISM.","25.According to the leaked documents, the Upstream programme allowed the collection of content and communications data from fibre optic cables and infrastructure owned by United States\u2019 CSPs. This programme had broad access to global data, in particular that of non-US citizens, which could then be collected, stored and searched using keywords (for further details, see paragraphs 261-264 below).","26.The applicants in the first of the joined cases (applicationno.58170\/13) sent a pre-action protocol letter to the Government on 3 July 2013 setting out their complaints and seeking declarations that sections 1 and 3 of the Intelligence Services Act 1994 (\u201ctheISA\u201d \u2013 see paragraphs 108 and 110 below), section 1 of the Security Services Act 1989 (\u201cthe SSA\u201d \u2013 see paragraph 106 below) and section 8 of RIPA (see paragraph 66 below) were incompatible with the Convention. In their reply of 26 July 2013, the Government stated that the effect of section65(2) of RIPA was to exclude the jurisdiction of the High Court in respect of human rights complaints against the intelligence services, but that the applicants\u2019 complaints could have been raised before the IPT. The IPT was a specialised Tribunal established under RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by that Act, and it was endowed with exclusive jurisdiction to investigate any complaint that a person\u2019s communications had been intercepted and, where interception had occurred, to examine the authority for such interception (see paragraphs 122-133 below). However, no further action was taken by these applicants.","27.The applicants in the second of the joined cases (applicationno.62322\/14) did not bring any domestic proceedings as they did not believe that they had an effective remedy for their Convention complaints.","28.The ten human rights organisations which are the applicants in the third of the joined cases (application no. 24960\/15) each lodged a complaint before the IPT between June and December 2013 (hereinafter \u201cthe Liberty proceedings\u201d). They alleged that the intelligence services, the Home Secretary and the Foreign Secretary had acted in violation of Articles 8, 10, and 14 of the Convention by: (i) accessing or otherwise receiving intercepted communications and communications data from the United States Government under the PRISM and Upstream programmes (\u201cthePRISM issue\u201d); and (ii) intercepting, inspecting and retaining their communications and their communications data under the TEMPORA programme (\u201cthe section 8(4) issue\u201d).","29.On 14 February 2014, the IPT ordered that the ten cases be joined. It subsequently appointed Counsel to the Tribunal (see paragraph 132 below), whose function was to assist the IPT in whatever way it directed, including by making representations on issues in relation to which not all parties could be represented (for example, for reasons of national security).","30.In their response to the applicants\u2019 claims, the Government adopted a \u201cneither confirm nor deny\u201d approach, that is to say, they declined to confirm or deny whether the applicants\u2019 communications had actually been intercepted. It was therefore agreed that the IPT would determine the legal issues on the basis of assumed facts to the effect that the NSA had obtained the applicants\u2019 communications and communications data via PRISM or Upstream and had passed them to GCHQ, where they had been retained, stored, analysed and shared; and that the applicants\u2019 communications and communications data had been intercepted by GCHQ under the TEMPORA programme and had been retained, stored, analysed and shared. The question was whether, on these assumed facts, the interception, retention, storage and sharing of data was compatible with Articles 8 and 10, taken alone and together with Article 14 of the Convention.","31.The IPT, composed of two High Court Judges, a Circuit Judge and two senior barristers, held a five-day, public hearing from 14-18 July 2014. The Government requested an additional closed hearing in order to enable the IPT to consider GCHQ\u2019s unpublished \u2013 described during the public hearing as \u201cbelow the waterline\u201d \u2013 internal arrangements for processing intercept material. The applicants objected, arguing that the holding of a closed hearing was not justified and that the failure to disclose the arrangements to them was unfair.","32.The request for a closed hearing was granted pursuant to Rule 9 of the IPT\u2019s Rules of Procedure (see paragraph 129 below). On 10September 2014 a closed hearing took place at which the IPT was \u201cassisted by the full, perceptive and neutral participation ... of Counsel to the Tribunal\u201d, who performed the following roles: (i) identifying documents, parts of documents or gists that ought properly to be disclosed; (ii) making such submissions in favour of disclosure as were in the interests of the Claimants and open justice; and (iii) ensuring that all the relevant arguments (from the Claimants\u2019 perspective) on the facts and the law were put before the IPT.","33.In the closed hearing, the IPT examined the internal (\u201cbelow the waterline\u201d) arrangements regulating the conduct and practice of the intelligence services.On 9 October 2014 it notified the applicants that it was of the view that there was some closed material which could be disclosed. It explained that it had invited the Government to disclose the material and that the Government had agreed to do so. The material was accordingly provided to the applicants in a note (\u201cthe 9 October disclosure\u201d) and the parties were invited to make submissions to the IPT on the disclosed material.","34.The applicants sought information on the context and source of the disclosure but the IPT declined to provide further details. The applicants made written submissions on the disclosure.","35.The respondents subsequently amended and amplified the disclosed material.","36.Following final disclosures made on 12 November 2014, the 9October disclosure provided as follows:","\u201cThe US Government has publicly acknowledged that the Prism system and Upstream programme ... permit the acquisition of communications to, from, or about specific tasked selectors associated with non-US persons who are reasonably believed to be located outside the United States in order to acquire foreign intelligence information. To the extent that the Intelligence Services are permitted by the USGovernment to make requests for material obtained under the Prism system (and\/or ... pursuant to the Upstream programme), those requests may only be made for unanalysed intercepted communications (and associated communications data) acquired in this way.","1.A request may only be made by the Intelligence Services to the government of a country or territory outside the United Kingdom for unanalysed intercepted communications (and associated communications data), otherwise than in accordance with an international mutual legal assistance agreement, if either:","...","2.Where the Intelligence Services receive intercepted communications content or communications data from the government of a country or territory outside the United Kingdom, irrespective of whether it is\/they are solicited or unsolicited, whether the content is analysed or unanalysed, or whether or not the communications data are associated with the content of communications, the communications content and data are, pursuant to internal \u2018arrangements\u2019, subject to the same internal rules and safeguards as the same categories of content or data, when they are obtained directly by the Intelligence Services as a result of interception under RIPA.","3.Those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s.8(4) warrant have internal \u2018arrangements\u2019 that require a record to be created, explaining why access to the unanalysed intercepted material is required, before an authorised person is able to access such material pursuant to s.16 of RIPA.","4.The internal \u2018arrangements\u2019 of those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s.8(4) warrant specify (or require to be determined, on a system-by-system basis) maximum retention periods for different categories of such data which reflect the nature and intrusiveness of the particular data at issue. The periods so specified (or determined) are normally no longer than 2 years, and in certain cases are significantly shorter (intelligence reports that draw on such data are treated as a separate category, and are retained for longer). Data may only be retained for longer than the applicable maximum retention period where prior authorisation has been obtained from a senior official within the particular Intelligence Service at issue on the basis that continued retention of the particular data at issue has been assessed to be necessary and proportionate (if the continued retention of any such data is thereafter assessed no longer to meet the tests of necessity and proportionality, such data are deleted). As far as possible, all retention periods are implemented by a process of automated deletion which is triggered once the applicable maximum retention period has been reached for the data at issue. The maximum retention periods are overseen by, and agreed with the Commissioner. As regards related communications data in particular, Sir Anthony May made a recommendation to those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s8(4) warrant, and the interim Commissioner (Sir Paul Kennedy) has recently expressed himself to be content with the implementation of that recommendation.","5.The Intelligence Services\u2019 internal \u2018arrangements\u2019 under [the Security Services Act 1989], [the Intelligence Services Act 1994] and ss.15-16 of RIPA are periodically reviewed to ensure that they remain up-to-date and effective. Further, the Intelligence Services are henceforth content to consider, during the course of such periodic reviews, whether more of those internal arrangements might safely and usefully be put into the public domain (for example, by way of inclusion in a relevant statutory Code of Practice).\u201d","37.The IPT issued its first judgment on 5 December 2014. The judgment addressed the arrangements then in place for intercepting communications and receiving communications intercepted by foreign intelligence services.","38.The IPT accepted that the PRISM issue engaged Article 8 of the Convention, albeit at a \u201clower level\u201d than the regime under consideration in Weber and Saravia v. Germany (dec.), no. 54934\/00, ECHR 2006\u2011XI. As a consequence, the authorities involved in processing communications received from foreign intelligence services had to comply with the requirements of Article 8, particularly in relation to their storage, sharing, retention and destruction. In the IPT\u2019s view, following Bykov v.Russia [GC], no. 4378\/02, \u00a7\u00a7 76 and 78, 10 March 2009 and Malone v.the United Kingdom, 2 August 1984, Series A no. 82, in order for the interference to be considered \u201cin accordance with the law\u201d, there could not be unfettered discretion for executive action; rather, the nature of the rules had to be clear and the ambit of the rules had \u2013 in so far as possible \u2013 to be in the public domain. However, it considered it plain that in the field of national security, much less was required to be put in the public domain and the degree of foreseeability required by Article 8 had to be reduced, otherwise the whole purpose of the steps taken to protect national security would be at risk (citing Leander v. Sweden, 26 March 1987, \u00a7 51, Series A no. 116).","39.The IPT continued:","\u201c41.We consider that what is required is a sufficient signposting of the rules or arrangements insofar as they are not disclosed ... We are satisfied that in the field of intelligence sharing it is not to be expected that rules need to be contained in statute (Weber) or even in a code (as was required by virtue of the Court\u2019s conclusion in Liberty v. [the United Kingdom, no. 58243\/00, 1 July 2008]). It is in our judgment sufficient that:","i)Appropriate rules or arrangements exist and are publicly known and confirmed to exist, with their content sufficiently signposted, such as to give an adequate indication of it (as per Malone ...).","ii)They are subject to proper oversight.\u201d","40.The IPT noted that arrangements for information sharing were provided for in the statutory framework set out in the Security Service Act 1989 (see paragraphs 105-106 below) and the Intelligence Services Act 1994 (see paragraphs 107-110 below). It further referred to a witness statement made in the above-mentioned Liberty proceedings by Charles Farr, the Director-General of the Office for Security and Counter Terrorism (\u201cOSCT\u201d) at the Home Office, which explained that the statutory framework set out in those Acts was underpinned by detailed internal guidance, including arrangements for securing that the services only obtained the information necessary for the proper discharge of their functions. He further indicated that staff received mandatory training on the legal and policy framework in which they operated, including clear instructions on the need for strict adherence to the law and internal guidance. Finally, he stated that the full details of the arrangements were confidential since they could not be published safely without undermining the interests of national security.","41.The IPT acknowledged that as the arrangements were not made known to the public, even in summary form, they were not accessible. However, the IPT considered it significant that the arrangements were subject to oversight and investigation by the Intelligence and Security Committee of Parliament (\u201cthe ISC\u201d) and the independent Interception of Communications Commissioner (\u201cthe IC Commissioner\u201d). Furthermore, it itself was in a position to provide oversight, having access to all secret information, and being able to adjourn into closed hearing to assess whether the arrangements referred to by Mr Farr existed and were capable of giving the individual protection against arbitrary interference.","42.Having considered the \u201cbelow the waterline\u201d arrangements, the IPT was satisfied that the 9 October disclosure (as subsequently amended \u2013 see paragraphs 33 and 36 above) provided a clear and accurate summary of that part of the evidence given in the closed hearing, and that the rest of the evidence given in closed hearing was too sensitive for disclosure without risk to national security or to the \u201cneither confirm nor deny\u201d principle. It was further satisfied that the preconditions for requesting information from the Government of the United States of America were clear: there had to exist either a section 8(1) warrant, or a section 8(4) warrant within whose ambit the proposed target\u2019s communications fell, together, if the individual was known to be in the British Islands, with a section 16(3) modification (see paragraph 86 below). Any request pursuant to PRISM or Upstream in respect of intercept or communications data was therefore subject to the RIPA regime, unless it fell within the wholly exceptional scenario outlined in 1(b) of the material disclosed after the first hearing. However, a 1(b) request had never occurred.","43.The IPT nevertheless identified the following \u201cmatter of concern\u201d:","\u201cAlthough it is the case that any request for, or receipt of, intercept or communications data pursuant to Prism and\/or Upstream is ordinarily subject to the same safeguards as in a case where intercept or communication data are obtained directly by the Respondents, if there were a 1(b) request, albeit that such request must go to the Secretary of State, and that any material so obtained must be dealt with pursuant to RIPA, there is the possibility that the s.16 protection might not apply. As already indicated, no 1(b) request has in fact ever occurred, and there has thus been no problem hitherto. We are however satisfied that there ought to be introduced a procedure whereby any such request, if it be made, when referred to the Secretary of State, must address the issue of s.16(3).\u201d","44.However, subject to this caveat, the IPT reached the following conclusions:","\u201c(i)Having considered the arrangements below the waterline, as described in this judgment, we are satisfied that there are adequate arrangements in place for the purpose of ensuring compliance with the statutory framework and with Articles 8 and10 of the Convention, so far as the receipt of intercept from Prism and\/or Upstream is concerned.","(ii)This is of course of itself not sufficient, because the arrangements must be sufficiently accessible to the public. We are satisfied that they are sufficiently signposted by virtue of the statutory framework to which we have referred and the Statements of the ISC and the Commissioner quoted above, and as now, after the two closed hearings that we have held, publicly disclosed by the Respondents and recorded in this judgment.","(iii)These arrangements are subject to oversight.","(iv)The scope of the discretion conferred on the Respondents to receive and handle intercepted material and communications data and (subject to the s.8(4) issues referred to below) the manner of its exercise, are accordingly (and consistent with Bykov - see paragraph 37 above) accessible with sufficient clarity to give the individual adequate protection against arbitrary interference.\u201d","45.Finally, the IPT addressed an argument raised by Amnesty International only; namely, that the United Kingdom owed a positive obligation under Article 8 of the Convention to prevent or forestall the United States from intercepting communications, including an obligation not to acquiesce in such interception by receiving its product. However, the IPT, citing M. and Others v. Italy and Bulgaria, no. 40020\/03, \u00a7 127, 31July 2012, noted that \u201cthe Convention organs have repeatedly stated that the Convention does not contain a right which requires a High Contracting Party to exercise diplomatic protection, or espouse an applicant\u2019s complaints under international law, or otherwise to intervene with the authorities of another State on his or her behalf\u201d. The IPT therefore rejected this submission.","46.The IPT formulated four questions to be decided in order to determine whether the section 8(4) regime (which provided the legal framework for the bulk interception of external communications) was compatible with the Convention:","\u201c(1)Is the difficulty of determining the difference between external and internal communications ... such as to cause the s.8(4) regime not to be in accordance with law contrary to Article 8(2)?","(2)Insofar as s.16 of RIPA is required as a safeguard in order to render the interference with Article 8 in accordance with law, is it a sufficient one?","(3)Is the regime, whether with or without s.16, sufficiently compliant with the Weber requirements, insofar as such is necessary in order to be in accordance with law?","(4)Is s.16(2) indirectly discriminatory contrary to Article 14 of the Convention, and, if so, can it be justified?\u201d","47.In relation to the first question, the applicants had contended that following the \u201csea-change in technology since 2000\u201d, substantially more communications were now external, and as a result the internal\/external distinction in section 8(4) was no longer \u201cfit for purpose\u201d. While the IPT accepted that the changes in technology had been substantial, and that it was impossible to differentiate at interception stage between external and internal communications, it found that the differences in view as to the precise definition of \u201cexternal communications\u201d did not per se render the section 8(4) regime incompatible with Article 8 \u00a7 2. In this regard, it considered that the difficulty in distinguishing between \u201cinternal\u201d and \u201cexternal\u201d communications had existed since the enactment of RIPA and the changes in technology had not materially added to the quantity or proportion of communications which could or could not be differentiated as being external or internal at the time of interception. At worst, they had \u201caccelerated the process of more things in the world on a true analysis being external than internal\u201d. In any case the distinction was only relevant at interception stage. The \u201cheavy lifting\u201d was done by section 16 of RIPA, which prevented intercepted material being selected to be read, looked at or listened to \u201caccording to a factor which is referable to an individual who is known to be for the time being in the British Islands\u201d (see paragraphs 84-92 below). Furthermore, all communications intercepted under a section 8(4) warrant could only be considered for examination by reference to that section.","48.In respect of the second question, the IPT held that the section 16 safeguards, which applied only to intercept material and not to related communications data, were sufficient. Although it concluded that the Weber criteria also extended to communications data, it considered that there was adequate protection or safeguards by reference to section 15 of RIPA (see paragraphs 77-82 below). In addition, in so far as section 16 offered greater protection for communications content than for communications data, the difference was justified and proportionate because communications data were necessary to identify individuals whose intercepted material was protected by section 16 (that is, individuals known to be in the British Islands).","49.Turning to the third question, the IPT concluded that the section 8(4) regime was sufficiently compliant with the Weber criteria (being the criteria set out in Weber and Saravia, cited above, \u00a7 95; see also paragraphs 274 and 335 below) and was in any event \u201cin accordance with the law\u201d. With regard to the first and second requirements, it considered that the reference to \u201cnational security\u201d was sufficiently clear (citing Esbester v. the United Kingdom (dec.), no.18601\/91, 2 April 1993 and Kennedy v. the United Kingdom, no.26839\/05, 18 May 2010); the absence of targeting at the interception stage was acceptable and inevitable, as it had been in Weber; on their face, the provisions of paragraph 5.2 of the IC Code, together with paragraphs 2.4, 2.5, 5.3, 5.4, 5.5 and 5.6 (see paragraph 96 below), were satisfactory; there was no call for search words to be included in an application for a warrant or in the warrant itself, as this would unnecessarily undermine and limit the operation of the warrant and might in any event be entirely unrealistic; and there was no requirement for the warrant to be judicially authorised.","50.In considering the third, fourth, fifth and sixth of the Weber criteria, the IPT had regard to the safeguards in sections 15 and 16 of RIPA, the ICCode, and the \u201cbelow the waterline\u201d arrangements. It did not consider it necessary that the precise details of all the safeguards should be published or contained in either statute or code of practice. Particularly in the field of national security, undisclosed administrative arrangements, which by definition could be changed by the executive without reference to Parliament, could be taken into account, provided that what was disclosed indicated the scope of the discretion and the manner of its exercise. This was particularly so when, as was the case here, the IC Code referred to the arrangements, and there was a system of oversight (being the IC Commissioner, the IPT itself, and the ISC) which ensured that these arrangements were kept under review. The IPT was satisfied that, as a result of what it had heard at the closed hearing, there was no large databank of communications data being built up and there were adequate arrangements in respect of the duration of the retention of data and their destruction. As with the PRISM issue, the IPT considered that the section 8(4) arrangements were sufficiently signposted in statute, in the IC Code, in the IC Commissioner\u2019s reports and, now, in its own judgment.","51.As regards the fourth and final question, the IPT did not make any finding as to whether there was in fact indirect discrimination on grounds of national origin as a result of the different regimes applicable to individuals located in the British Islands and those located outside, since it considered that any indirect discrimination was sufficiently justified on the grounds that it was harder to investigate terrorist and criminal threats from abroad. Given that the purpose of accessing external communications was primarily to obtain information relating to those abroad, the consequence of eliminating the distinction would be the need to obtain a certificate under section 16(3) of RIPA (which exceptionally allowed access to material concerning persons within the British Islands intercepted under a section 8(4) warrant \u2013 see paragraph 86 below) in almost every case, which would radically undermine the efficacy of the section 8(4) regime.","52.Finally, the applicants had argued that the protection afforded by Article 10 of the Convention applied to investigatory NGOs in the same way it applied to journalists. Amnesty International initially alleged before the IPT that there were likely to be no adequate arrangements for material protected by legal professional privilege, a complaint which was subsequently \u201chived off\u201d to be dealt with in the Belhadj case (see paragraphs 99-101 below), to which Amnesty International was joined as an additional claimant. No similar argument was made in respect of NGO confidence until 17 November 2014 (after the first and second open hearings). As the IPT considered that this argument could have been raised at any time, in its judgment it had been raised \u201cfar too late\u201d to be incorporated into the ambit of the proceedings.","53.With regard to the remaining Article 10 complaints, the IPT noted that there was no separate argument over and above that arising in respect of Article 8. Although the IPT had regard to Sanoma Uitgevers B.V. v.theNetherlands [GC], no. 38224\/03, 14 September 2010, it emphasised that the applicants\u2019 case did not concern targeted surveillance of journalists or non-governmental organisations. In any case, in its view, in the context of untargeted monitoring via a section 8(4) warrant, it would be \u201cclearly impossible\u201d to anticipate a judicial pre-authorisation prior to the warrant limited to what might turn out to impact upon Article 10. Although the IPT accepted that an issue might arise in the event that, in the course of examination of the contents, some question of journalistic confidence arose, there were additional safeguards in the IC Code in relation to treatment of such material.","54.Following the publication of the judgment, the parties were invited to make submissions on whether, prior to the disclosures made to the IPT, the legal regime in place in respect of the PRISM issue complied with Articles 8 and 10, and on the proportionality and lawfulness of any alleged interception of their communications. The IPT did not see any need for further submissions on the proportionality of the section 8(4) regime as a whole.","55.In its second judgment of 6 February 2015, the IPT considered whether, prior to its December 2014 judgment, the PRISM or Upstream arrangements breached Article 8 and\/or 10 of the Convention.","56.It agreed that it was only by reference to the 9 October disclosure as amended (see paragraphs 33 and 36 above) that it was satisfied the regime was \u201cin accordance with the law\u201d. The IPT was of the view that without the disclosures made, there would not have been adequate signposting, as was required under Articles 8 and 10. It therefore made a declaration that prior to the disclosures:","\u201c23.... [T]he regime governing the soliciting, receiving, storing and transmitting by UK authorities of private communications of individuals located in the UK, which have been obtained by US authorities pursuant to Prism and\/or ... Upstream, contravened Articles 8 or 10 ECHR, but now complies.\u201d","57.The third judgment of the IPT, published on 22 June 2015, determined whether the applicants\u2019 communications obtained under PRISM or Upstream had been solicited, received, stored or transmitted by the United Kingdom authorities in contravention of Articles 8 and\/or 10 of the Convention; and whether the applicants\u2019 communications had been intercepted, viewed, stored or transmitted by the United Kingdom authorities so as to amount to unlawful conduct or in contravention of Articles 8 and\/or 10.","58.The IPT made no determination in favour of eight of the ten applicants. In line with its usual practice where it did not find in favour of a claimant, it did not confirm whether or not their communications had been intercepted. However, the IPT made determinations in relation to two applicants. The identity of one of the organisations was wrongly noted in the judgment and the error was corrected by the IPT\u2019s letter of 1 July 2015.","59.In respect of Amnesty International, the IPT found that email communications had been lawfully and proportionately intercepted and accessed pursuant to section 8(4) of RIPA but that the time-limit for retention permitted under the internal policies of GCHQ had been overlooked and the material had therefore been retained for longer than permitted. However, the IPT was satisfied that the material had not been accessed after the expiry of the relevant retention time-limit and that the breach could be characterised as a technical one. It amounted nonetheless to a breach of Article 8 and GCHQ was ordered to destroy any of the communications which had been retained for longer than the relevant period and to deliver one hard copy of the documents within seven days to the IC Commissioner to retain for five years in case they were needed for any further legal proceedings. GCHQ was also ordered to provide a closed report within fourteen days confirming the destruction of the documents. No award of compensation was made.","60.In respect of the Legal Resources Centre, the IPT found that communications from an email address associated with the applicant had been intercepted and selected for examination under a section 8(4) warrant. Although it was satisfied the interception was lawful and proportionate and that selection for examination was proportionate, the IPT found that the internal procedure for selection had not been followed. There had therefore been a breach of the Legal Resources Centre\u2019s Article 8 rights. However, the IPT was satisfied that no use was made of the material and that no record had been retained so the applicant had not suffered material detriment, damage or prejudice. Its determination therefore constituted just satisfaction and no compensation was awarded."],"220":["10. The applicant, Centrum f\u00f6r r\u00e4ttvisa, is a foundation established in 2002. It has its headquarters in Stockholm.","11.The applicant represents clients in proceedings concerning rights and freedoms under the Convention or related proceedings under Swedish law. It is also involved in education and research projects and participates in the general public debate on issues concerning individuals\u2019 rights and freedoms.","12.The applicant communicates on a daily basis with individuals, organisations and companies in Sweden and abroad by email, telephone and fax. It asserts that a large part of that communication is particularly sensitive from a privacy perspective. Due to the nature of its function as a non-governmental organisation scrutinising the activities of State actors, it believes that there is a risk that its communications have been or will be intercepted and examined by way of signals intelligence.","13.The applicant has not brought any domestic proceedings, contending that there is no effective remedy for its Convention complaints."],"221":["2.The applicant was born in and lives in Santiago de Compostela. She is the mother of M., a mentally disabled young woman born in A Coru\u00f1a (La Coru\u00f1a) in 1996. The applicant was represented by MsL.Gonzalez-Lagana Vicente, a lawyer practising in A Coru\u00f1a.","3.The Government were represented by their Agent, Mr R.-A. Le\u00f3n Cavero, State Counsel and head of the Human Rights Department at the Ministry of Justice.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.In December 2013, given the fact that M., the applicant\u2019s daughter, would soon turn 18, the applicant lodged a request with a judge of First-Instance Court No. 6 of Santiago de Compostela (\u201cthe First-Instance Judge\u201d) that she be deprived of her legal capacity. The applicant requested that her legal guardianship over her daughter be extended, but specifically asked that her daughter not be deprived of her right to vote.","6.On 2 September 2014, the First-Instance Judge decided that the applicant\u2019s daughter should be placed under the extended partial legal guardianship of her mother and that, in the light of the evidence and the case file, M.\u2019s right to vote should be revoked.","7.In an extensively reasoned judgment, the First-Instance Judge held that, given the specific circumstances of the case, the applicant\u2019s daughter was not capable of exercising her right to vote. Having examined the Convention on the Rights of Persons with Disabilities (CRPD) (see paragraph 23 below) in the light of the Spanish legal system, the First-Instance Judge explained the difference between the CRPD\u2019s general concept of disability and the Spanish legal institution of incapacitation (incapacitaci\u00f3n), which is intended to guarantee the rights of disabled people. He also referred to the case-law of the Supreme Court (according to which the CRPD and the institution of incapacitation, as regulated under the Spanish legal system, are compatible); he furthermore stated that a person who has been declared incapacitated (incapacitado) in the course of judicial proceedings (and who is not able to manage himself or herself) cannot be compared to a person who suffers a disability but is capable of managing himself or herself. The First-Instance Judge indicated in particular that:","\u201cIt is necessary to bring on this particular controversial aspect the most recent and consolidated scientific doctrine and jurisprudence, citing, inter alia, the recent Supreme Court judgment 341\/2014, of 1 July 2014, which states that ... (as is clear from the New York Convention and as was maintained by Supreme Court judgment 421\/2013 of 24 June) Article 29 of the CRPD guarantees to persons with disabilities all political rights, and the possibility to enjoy them, under equal conditions, and as a logical corollary thereto ... the right to vote ...; sections3(1)(b) and 2 of Institutional Law 5\/85 of 19 July 1985 on the General Electoral System states that those declared incapacitated by virtue of a final judicial decision shall be deprived of the right to vote, provided that the decision expressly declares the relevant person\u2019s incapacity to exercise it, and that the judges or courts deciding on that person\u2019s incapacity or on confinement proceedings expressly rule on that person\u2019s incapacity to exercise his right to vote. The loss of the right to vote is not an automatic or necessary consequence of incapacity ... It is for the judge in charge of the case to analyse and assess the situation of the person under his consideration and to rule on the advisability of denying that person his right to exercise of this fundamental right, ... which is a rule and not the exception ...\u201d","8.The First-Instance Judge considered that in respect of the instant case, the limitations imposed on M. in respect of her right to vote were based neither on the requirement of a higher cognitive or intellectual capacity nor on M.\u2019s lack of knowledge regarding her voting options (that is to say her choice of candidate or party) nor on any hypothetical irrationality in respect of such choices, but on the strict and objective establishment of her lack of capacity in respect of political affairs and electoral matters. The court\u2019s medical expert and the First-Instance Judge had ascertained the notable \u2013 and at that time insuperable \u2013 deficiencies of M. (without, in accordance with section 761 of the Civil Procedural Law, prejudging any possible subsequent change in her capacity) in respect of her exercising an electoral choice. The First-Instance Judge acknowledged that depriving a person of her voting rights could not be an automatic consequence of a judicial declaration of legal incapacity and that decisions dealing with such situations had therefore to be extensively reasoned. He noted that the task at hand was not that of examining the knowledge of the applicant\u2019s daughter about a specific political system, but to assess the circumstances of the case. The restriction of her right to vote was not justified by the fact that she hardly knew anything about the Spanish political system, but because she was highly influenceable and not aware of the consequences of any vote that she might cast. The First-Instance Judge emphasised in his judgment that such decisions were always subject to judicial review.","9.In October 2014, the applicant lodged an appeal with the Regional Court (Audiencia Provincial) of A Coru\u00f1a. She asked the court to expressly recognise her daughter\u2019s right to vote, submitting that under Articles 12 and29 of the CRPD, the right to vote of persons with disabilities was recognised and that States had to provide them with the support necessary for the full exercise of that right to be guaranteed.","10.On 11 March 2015, the Regional Court of A Coru\u00f1a dismissed the applicant\u2019s appeal. The Regional Court considered that a decision to deprive a person of his or her right to vote was legal and compatible with the CRPD, provided that that person\u2019s capacity to exercise the right to vote had been subjected to individual review by a judicial body; it noted that the first-instance judgment had been sufficiently reasoned. The Regional Court emphasised that the intellectual ability of the applicant\u2019s daughter was equivalent to that of child aged between six and eight.","11.In April 2015, the applicant lodged an appeal on points of law with the Supreme Court. She argued that all citizens had the right to vote under Article 23 of the Spanish Constitution (taken in conjunction with Article10\u00a72 thereof, which provided that fundamental rights recognised under the Constitution should be interpreted in accordance with the international conventions ratified by Spain). Moreover, she considered it to be contrary to the principle of non-discrimination that disabled people were prevented from exercising the fundamental right to vote.","12.On 17 March 2016, the Supreme Court dismissed the applicant\u2019s appeal, upholding the decision of the Regional Court and ruling that the reasoning of the contested judgment had contained a thorough analysis of the case and had correctly balanced the interests at stake.","13.On 28 April 2016 the applicant lodged an amparo appeal alleging a violation of Article 23 of the Spanish Constitution, defending her daughter\u2019s right to vote. It was dismissed by the Constitutional Court on 28 November 2016 (notified on the 22 December 2016).","14.In its reasoned decision (auto), the Constitutional Court stated as follows:","\u201c... 2.With regard to doubt about the constitutionality of sections 3(1)(b) and 2 of Institutional Law 5\/1985 ... on the general electoral system (the LOREG) under Article23 \u00a7 1 of the Spanish Constitution, the applicant assumes that this constitutional provision guarantees to all citizens the right of active suffrage, without any limitation or exception ...","...","Sections 2 and 3 of the LOREG limit the ... right to vote to those who, besides holding Spanish nationality ..., have reached the minimum legal age, have been included in the electoral census, and are not affected by the circumstances provided by section3 (including having been judicially deprived of the right to vote in incapacity proceedings or being confined owing to a psychiatric disorder). Thus, the constitutional model of universal suffrage is not per se incompatible with an individual being deprived of the right to vote for a reason legally provided for, especially when such deprivation is covered by the standard legal guarantees.","3.On the basis of the considerations listed in the previous paragraph, the arguments employed in the appeal are insufficient to effectively question the constitutionality \u2013 owing to the infringement of Articles 23 \u00a7\u00a7 1 and 14 of the Spanish Constitution \u2013 of the above-mentioned legal provisions (paragraphs (1)(b) and (2) of section 3 of the LOREG), which enable courts and tribunals to restrict the exercise of a person\u2019s right to vote on the basis of that person\u2019s legal incapacity \u2013 in particular, on the basis of the specific circumstances of each person and after the completion of the appropriate judicial procedure determining his or her incapacity (or the authorisation of his or her confinement on the basis of mental illness).","With regard to the alleged interpretation of Article 23 of the Spanish Constitution in accordance with the CRPD \u2013 and, in particular, in accordance with Article 29 thereof \u2013 which was adopted in New York on 13 December 2006 and ratified by Spain ... on 9April 2008 ..., it is necessary to take into account, first of all, the distinction between \u2018disability\u2019 (a) in the sense of the Convention \u2013 a very broad concept that includes any \u2018long-term physical, mental, intellectual or sensory impairment\u2019 that may prevent any actual equality, and (b) \u2018disability\u2019 in the sense of the Spanish Civil Code (CC) \u2013 that is to say \u2018persistent physical or mental illnesses or impairments that prevent the person from caring for himself\/herself\u2019 (Article200of the CC) with regard to his\/her exercise of the right in question under section 3 of the LOREG. The latter deals with the ability of ... each person to cast a vote as a \u2018free expression of the will of the elector\u2019, which is also guaranteed by the CRPD (Article29(a)(iii)), the purpose of which is ..., in line with the mandate specified by Article9\u00a72 of the Spanish Constitution: to remove obstacles that prevent or hinder free and secret voting without fear (Article29(a)(ii) and (iii)) by persons with disabilities and to ensure that they are \u2018assisted in voting by a person of their choice, ... where necessary and at their request\u2019.","...","It should be stressed that section 3 of the LOREG does not deprive the \u2018disabled\u2019 of their right to vote as a group or on the basis of any disability. On the contrary, it gives the judicial authorities the task of deciding on such a restriction of the exercise of the fundamental right on an individual basis, because of the specific circumstances of each person and after due process has been observed. This provision does not stipulate the deprivation of this right of suffrage in its active aspect in respect of people suffering from any disability, but only to those in respect of whom it has been so decided, by a judgment, after the appropriate proceedings have been conducted with due respect to the guarantees of adequate defence and evidence, and by virtue of the specific dysfunctionality from which they suffer and which affects their intellectual and volitional capacity with respect to the exercise of the right to vote. Therefore, the restriction should only affect those persons who lack the minimum level of understanding and will necessary to freely exercise their vote, as provided by Article 23\u00a71 of the Spanish Constitution. Furthermore, the nature of the measures referred to in Article29 (a) (i) to (iii) of the CRPD is such ... that their purpose is to ensure the effective exercise of the right to vote as a true reflection of the free will of a person with a disability and not, on the contrary, the mere insertion of the ballot paper into the ballot box.","4.... The case-law of the Civil Chamber of the Supreme Court ... requires that a decision not to allow someone to exercise his fundamental right to vote be preceded by an individualised examination of that person\u2019s situation and by an assessment of the competing interests in play. ...","... It is necessary to point out that an assessment of the specific circumstances from which the contested decisions imply the inability to exercise the right to vote in the present case not only does not manifest any arbitrariness, irrationality, or obvious error in the wording of those decisions, but also complies with the principle of reinforced reasoning, which is required when a restriction of the exercise of fundamental rights is involved ...","... The contested judicial decisions take into consideration the data that they extract from the evidence \u2013 in particular from the forensic report and the examination carried out by the judge himself, as well as ... the statement given by the applicant\u2019s daughter at the hearing \u2013 in order to reach a decision that cannot be categorised as unreasonable.","As is clear from the judgments appealed against and as was explicit in the first-instance judgment, the disputed decision does not depend on the person\u2019s threshold of knowledge or instruction, which is not required for other citizens not subject to incapacity proceedings. The said knowledge is only one piece of information which, together with others \u2013 particularly medical-psychiatric expert reports \u2013 can be reasonably used to evaluate a person\u2019s aptitude ... This can also be applied to the question of \u2018influence exerted by third parties\u2019 ... It is not ... a question of identifying an absence of knowledge ... on the part of a person lacking capacity, but of recognising that through these elements (among others) ... the degree of development of the mental faculties of the person in question can be ascertained.\u201d","15.The Constitutional Court concluded that there had not been any violation of the fundamental rights alleged."],"222":["1. The applicant, Mr Armen Matevosyan, is an Armenian national who was born in 1978 and was serving his sentence in Vanadzor penitentiary facility at the time when he lodged the present application. He was represented before the Court by Mr G. Simonyan, a lawyer practising in Yerevan.","2. The Government were represented by Mr Y. Kirakosyan, Representative of the Republic of Armenia to the European Court of Human Rights.","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. On 19 September 2005 the applicant was convicted of the murder of three persons, wilful infliction of bodily harm and breach of inviolability of a dwelling by Krasnodar District Court in Russia. He was sentenced to twenty years \u2019 imprisonment under Article 105 \u00a7 2 (a) and (c) of the Criminal Code of Russia (murder of two or more persons and murder of a person in a vulnerable state) and to corrective community service for six months with confiscation of 20% of his salary for each of the offences under Articles 115 \u00a7 1 ( wilful infliction of bodily harm ) and 139 \u00a7 1 ( breach of inviolability of a dwelling ) of the same code. As a result, a cumulative sentence of twenty years and four months \u2019 imprisonment was imposed on the applicant.","5. On an unspecified date the Minister of Justice of Armenia and the Prosecutor General of Russia reached an agreement on the applicant \u2019 s transfer to Armenia to serve the remainder of his sentence.","6. On 9 September 2008 the Chelyabinsk Regional Court ordered the applicant \u2019 s transfer to Armenia for that purpose.","7. On 6 March 2009 the Prosecutor General of Armenia applied to the Erebuni and Nubarashen District Court of Yerevan (\u201cthe District Court\u201d) requesting it to recognise the judgment of 19 September 2005 and adapt the applicant \u2019 s sentence to the Criminal Code of Armenia, in accordance with the requirements of Article 12 of the Moscow Convention on the Transfer of Sentenced Persons for Enforcement of Custodial Sentences (\u201cthe Moscow Convention\u201d).","8. On 15 May 2009 the District Court granted the Prosecutor \u2019 s application. In doing so, it found that the offences under Articles 105 \u00a7 2 (a) and (c), 115 \u00a7 1 and 139 \u00a7 1 of the Criminal Code of Russia corresponded respectively to the offences envisaged by Articles 104 \u00a7 2 (1) (murder of two or more persons), 117 (infliction of bodily harm) and 147 \u00a7 1 (breaching inviolability of a dwelling) of the Criminal Code of Armenia. With reference to Articles 499.8 \u00a7 3 (3) and 499.9 \u00a7 1 of the Code of Criminal Procedure, the District Court decided to leave the sentence imposed by the judgment of 19 September 2005, as well as the starting date for serving the punishment, 30 May 2005, unchanged.","9. The applicant appealed against that decision. He argued that maintaining his original sentence of twenty years and four months \u2019 imprisonment was unlawful under Armenian law, as it exceeded the maximum sentence prescribed by Article 104 \u00a7 2 (1) of the Criminal Code of Armenia.","10. On 29 June 2009 the Criminal Court of Appeal (\u201cthe Court of Appeal\u201d) quashed the decision of 15 May 2009 and amended it. It found that the District Court had failed properly to recognise and enforce the Krasnodar District Court \u2019 s judgment of 19 September 2005. In its opinion the District Court had breached Article 12 of the Moscow Convention, according to which the adapted custodial sentence could not exceed the maximum punishment prescribed by the law of the administering state, that is fifteen years under Armenian law. Having applied the rules of cumulative sentencing set out in Article 66 \u00a7 4 of the Criminal Code of Armenia, the Court of Appeal adapted the applicant \u2019 s sentence in the following manner: fifteen years \u2019 imprisonment for the offence under Article 104 \u00a7 2 (1), and fines for the offences under Articles 117 (infliction of bodily harm) and 147 \u00a7 1 (breaching inviolability of a dwelling) of the same code.","11. The prosecution lodged an appeal on points of law arguing, inter alia, that the sentence of fifteen years \u2019 imprisonment was unlawful, as Article 104 \u00a7 2 (1) of the Criminal Code of Armenia also provided for a possibility to impose life imprisonment.","12. On 26 November 2009 the Court of Cassation quashed the Court of Appeal \u2019 s decision of 29 June 2009 and remitted the case for a fresh examination. It stated, inter alia, that the District Court had to determine the applicable principles of international law, notably whether or not the reduction of the applicant \u2019 s sentence imposed on him by the Russian court would be in line with Armenia \u2019 s international legal obligations. The Court of Cassation stated that it should also be determined whether the 1983 Convention on the Transfer of Sentenced Persons (\u201cthe Strasbourg Convention\u201d) was applicable and the legal effect of the bilateral agreement between the Armenian and Russian authorities on the applicant \u2019 s transfer.","13. On 21 May 2010 the District Court pronounced its decision according to which the applicant \u2019 s sentence under Articles 115 \u00a7 1 and 139 \u00a7 1 of the Russian Criminal Code, which corresponded respectively to Articles 117 and 147 \u00a7 1 of the Criminal Code of Armenia, should remain the same, that is corrective community service for six months with confiscation of 20% of his salary. As for the offence under Article 105 \u00a7 2 (a) and (c) of the Criminal Code of Russia, which the District Court adapted to Article 104 \u00a7 2 (1) of the Criminal Code of Armenia, it noted that in cases of murder Armenian law prescribed a maximum punishment of fifteen years \u2019 imprisonment or life imprisonment. With reference to Article 10 of the Strasbourg Convention the District Court noted that the administering state could neither aggravate, by nature or duration, the punishment imposed in the sentencing state, nor exceed the maximum punishment prescribed under the law of the administering state. Even though the Krasnodar District Court had the possibility under Russian law to impose on the applicant life imprisonment, it had chosen to sentence him to imprisonment for a certain period of time. Therefore, in the District Court \u2019 s opinion Armenia, as the administering state, was not competent to change the type of the punishment and impose on the applicant life imprisonment. Thus the applicant \u2019 s punishment under Article 104 \u00a7 2 (1) of the Criminal Code of Armenia had to be fixed at fifteen years \u2019 imprisonment. Applying the rules of cumulative sentencing set out in Article 66 \u00a7 4 of the Criminal Code of Armenia, the District Court set the applicant \u2019 s final sentence at fifteen years \u2019 imprisonment.","14. The decision of 21 May 2010 stated that it was subject to appeal within ten days of its pronouncement.","15. On 22 June 2010 the prosecution appealed against that decision arguing, inter alia, that the imposition of a fifteen-year sentence by the District Court had been in breach of the requirements of Article 10 of the Strasbourg Convention.","16. On 28 June 2010 the applicant made written submissions to the Court of Appeal arguing, inter alia, that the appeal against the decision of 21 May 2010 had been lodged out of time.","17. On 21 July 2010 the Court of Appeal quashed and amended the decision of 21 May 2010 and, applying the rules of cumulative sentencing, set the applicant \u2019 s final sentence at twenty years \u2019 imprisonment. In doing so, it concluded that imposing twenty years \u2019 imprisonment on the applicant was in line with both domestic law and international treaties ratified by Armenia. The relevant part of its decision read as follows:","\u201c[The District Court] ... imposed a final sentence of fifteen years \u2019 imprisonment, whereas Article 104 \u00a7 2 of the Criminal Code [of Armenia] also envisages life sentence, which means that maintaining the convict \u2019 s twenty years \u2019 imprisonment imposed by the Krasnodar Regional Court does not in any way deteriorate his situation, and, additionally, such is the requirement of justice. Therefore, the appellate court finds that ... decreasing the term of imprisonment for five years was in breach of the principles set out in ... the Code of Criminal Procedure [of Armenia], while the contested judicial act violated the very essence of justice and the necessity to maintain balance between constitutionally protected interests.","Thus, according to Article 10 of [the Strasbourg Convention] in the case of continuous enforcement the administering State is bound by the legal nature and duration of the sentence determined by the sentencing State. \u201d","18. The Court of Appeal did not address the applicant \u2019 s submissions of 28 June 2010.","19. The applicant lodged an appeal on points of law arguing, in particular, that the Court of Appeal had erred in comparing imprisonment for a fixed term with imprisonment for life since, both under Russian and Armenian criminal law, those were two distinct types of punishment. He also submitted that the Court of Appeal had not addressed his arguments concerning the failure by the prosecution to respect the procedural time \u2011 limits for lodging an appeal against the decision of 21 May 2010.","20. On 17 September 2010 the Court of Cassation declared the applicant \u2019 s appeal on points of law inadmissible for lack of merit. That decision was served on the applicant on 24 September 2010.","Relevant legal framework","Relevant domestic lawCode of Criminal Procedure of Armenia (as in force at the material time)","Code of Criminal Procedure of Armenia (as in force at the material time)","Code of Criminal Procedure of Armenia (as in force at the material time)","21. Article 499.8 \u00a7 3 (3) provides that first instance courts of Armenia, pursuant to their territorial jurisdiction, are competent to recognise judgments rendered by first instance courts of foreign States.","22. Article 499.9 \u00a7 1 provides that when deciding on the recognition of judgments of foreign States the competent courts of Armenia verify whether the requirements of relevant international treaties have been respected. Judgments of foreign States are subject to recognition and enforcement if those requirements have been respected, as well as in the case of absence of grounds for refusal of recognition and enforcement provided by the given international treaty.","Criminal Code of Armenia (as in force at the material time)","23. According to Article 49, which lists all types of criminal sanctions, imprisonment for certain periods of time and life imprisonment are listed as distinct types of punishment.","24. According to Article 66 \u00a7 4, in cases of cumulative sentencing, the term of imprisonment cannot exceed fifteen years.","25. According to Article 104 \u00a7 2 (1), murder of two or more persons shall be punishable by eight to fifteen years \u2019 imprisonment or by life imprisonment.","26. According to Article 117, infliction of light bodily harm shall be punishable by a fine or by detention for up to two months.","27. According to Article 147 \u00a7 1, entry to a dwelling against the will of a person shall be punishable by a fine or by detention for up to two months.","Criminal Code of Russia (as in force at the material time)","28. According to Article 105 \u00a7 2 (a) and (c), murder of two or more persons, as well as murder of a person, who is apparently in a vulnerable state, shall be punishable by eight to twenty years \u2019 imprisonment or by life imprisonment or by the death penalty.","Relevant international lawThe Council of Europe Convention on the Transfer of Sentenced Persons (signed in Strasbourg on 21 March 1983)","The Council of Europe Convention on the Transfer of Sentenced Persons (signed in Strasbourg on 21 March 1983)","The Council of Europe Convention on the Transfer of Sentenced Persons (signed in Strasbourg on 21 March 1983)","29. The relevant provisions of the Council of Europe Convention on the Transfer of Sentenced Persons state the following:","\u201c Article 10 \u2013 Continued enforcement","1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.","2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.","Article 11 \u2013 Conversion of sentence","1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:","a. shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State;","b. may not convert a sanction involving deprivation of liberty to a pecuniary sanction;","c. shall deduct the full period of deprivation of liberty served by the sentenced person; and","d. shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.","...\u201d","Convention on the Transfer of Sentenced Persons for Enforcement of Custodial Sentences (signed in Moscow on 6 March 1998 by Armenia and other Member States of the Commonwealth of Independent States)","30. Under Article 12 of this Convention, the administering state shall ensure continuation of enforcement of the sentence in accordance with its law and shall refrain from worsening the situation of the convict. According to the same provision, if the maximum custodial sentence is more lenient under the law of the administering state than the sentence prescribed by the judgment, then the court assigns the maximum custodial sentence under the law of the administering state."],"223":["1. The two applicants, Ms I.I. and Ms M.S., were born in 1996 and 1959 respectively, and live, respectively, in Lovech and Pleven. They were represented by Mr N. Runevski, a lawyer practising in Sofia.","2. The Bulgarian Government (\u201cthe Government\u201d) were represented by their Agent, Ms R. Nikolova of the Ministry of Justice.","Events of 17 September 2013","3. Following several instances of theft of electrical equipment near the village of Bohot, the Pleven police decided to send four officers to patrol the area where the thefts had taken place between 8 p.m. on 17 September and 4 a.m. on 18 September 2013. The plan of the operation said that the officers were to be equipped with \u201cstop cartridges\u201d [1].","Events in the forest near Bohot","4. Two of those officers, M.S. and R.I., set out in an unmarked police car. At about 8.15 p.m. they were alerted by a colleague that people stealing wood had been spotted in a nearby forest. (The information had come from two men from the local forest management cooperative.) Officer M.S. called one of those men and arranged to meet them at the edge of the forest. While then driving through the forest, the officers and the two men spotted headlights coming from a path extending from the paved road. The officers positioned their car in a way to block any vehicle coming from that path. Shortly after that, a van approached from the path. Officer R.I. waved at it to stop, but it accelerated instead and the officer had to jump aside in order not to be hit by it. The van \u2019 s driver \u2013 later identified as Mr I.I., born in 1968, father of the first applicant and brother of the second applicant, who had taken the van from a vehicle repair shop where he was working (it had been left there by a client) \u2013 drove off toward the primary road connecting Pleven and Lovech. Apart from Mr I.I., there were two men in the van, whom he had hired a couple of hours earlier to help him carry the wood.","The car chase","5. Officers M.S. and R.I. got into their car and gave chase; officer M.S. was driving. They switched on the police light and the siren, and officer R.I. used a megaphone to summon Mr I.I. repeatedly to pull over and stop. Mr I.I. did not comply, and each time when the officers tried to overtake the van, he swerved in an attempt to push their car off the road. Officer R.I. fired a warning shot, using a \u201cstop cartridge\u201d, [2] and then, when Mr I.I. still did not stop, fired several such shots at the van; he was shooting through the car \u2019 s right-hand window, resting his hand on the rear-view mirror. According to the two officers, officer R.I. was aiming for the van \u2019 s tyres. A ballistic report drawn up in the ensuing investigation (see paragraph 31 below) found that at least twelve projectiles had hit the van, mostly in its upper part. Mr I.I. \u2019 s two companions were begging him to stop or slow down, so that they could jump out of the vehicle. One of them twice called an acquaintance from the Lovech police; the latter told them to stop, get out of the van and surrender to the officers who were chasing them. For his part, Mr I.I. twice called a relative of his, asking for help, but the relative apparently likewise advised him to stop and surrender.","6. At 8.58 p.m. officer R.I. called the Pleven police switchboard, and asked them to inform the Lovech police of the situation and request backup. At 9.01 p.m. the duty officer relayed that information to the Lovech police, who said that they would send a car to intercept the van near a petrol station at the entrance of Lovech. Officers M.S. and R.I. were informed of that at 9.04 p.m. However, when the van and their car passed near the petrol station, they were not met by anyone from the Lovech police. (It was later established that the two officers dispatched there had arrived a few minutes later). At 9.07 p.m. officer R.I. called the Pleven police switchboard again to tell them that. At that point, the van slowed down and Mr I.I. \u2019 s two companions jumped out of it. Mr I.I. then drove on. Officer R.I. informed the Pleven police switchboard of that at 9.10 p.m.","The chase on foot","7. Once inside Lovech, officers M.S. and R.I. again tried to intercept the van, but could not, owing to the way in which Mr I.I. was driving. Shortly after that, Mr I.I. stopped the van close to a railway, got out of it, and started running. The officers chased him on foot. Mr I.I. hid inside bushes close to a block of flats and a carwash. The officers began searching the area with their torchlights. At 9.14 p.m. officer R.I. called the Pleven police switchboard and asked them to call for backup from the Lovech police; that call was relayed to the Lovech police switchboard at 9.16 p.m.","The scuffle near the block of flats and Mr I.I. \u2019 s death","8. Moments after that officer R.I. spotted Mr I.I., who tried to push him and make off, but the officer seized him by the clothes. The two officers then struggled with Mr I.I., trying to handcuff him behind his back. They repeatedly admonished him to cease resistance. Startled by the noise, people living in the nearby block of flats started coming out on the windows and the balconies. Officer R.I. managed to put handcuffs on Mr I.I. \u2019 s left wrist and twisted his arm behind his back. Mr I.I. lost his balance and fell to the ground. According to the findings of the ensuing investigations, the officers tried to restrain Mr I.I. and put the handcuffs on his right wrist as well, but he was struggling fiercely, and even managed to lift himself off the ground several times, which prompted the officers to press his body to the ground with their knees. They then succeeded in handcuffing both of his hands behind his back. According to the findings of the ensuing investigations, at that point Mr I.I. screamed several times that he could not breathe, and the officers uncuffed one of his hands and turned him to one side; the applicants contest that account, and also express doubts that Mr I.I. was ill-treated. The officers asked Mr I.I. whether he suffered from any medical condition, but he did not answer. They checked his pulse. Officer M.S. fetched water from the police car and sprayed it on Mr I.I. \u2019 s face, and officer R.I. called (at 9.27 p.m.) the Pleven police switchboard to request an ambulance. At about the same time (or shortly before that), two police officers from Lovech arrived at the scene. They had been dispatched there following five calls to the national police emergency number made at 9.16 p.m., 9.18 p.m. and 9.21 p.m. by people living in the nearby block of flats, some apparently at the request of officers M.S. and R.I. The ambulance arrived about ten minutes later. The emergency medical doctor and nurse tried to resuscitate Mr I.I., but found that he was already dead. Officers M.S. and R.I. reported all that to the Pleven police switchboard at 9.45 p.m.","Investigations of those eventsInternal investigation by the Ministry of Internal Affairs","Internal investigation by the Ministry of Internal Affairs","Internal investigation by the Ministry of Internal Affairs","9. Following a complaint from a friend of Mr I.I. to the prosecuting authorities in which he alleged that the shots fired at Mr I.I. \u2019 s van had been wholly unjustified and that Mr I.I. had been \u201csavagely beaten to death\u201d, in November 2013 an inspector of the complaints department of the General Directorate of National Police and an officer of the same Directorate \u2019 s criminal-police department carried out an internal investigation.","10. The investigators interviewed the author of the allegations, who told them that those were based on conversations with Mr I.I. \u2019 s two companions on the evening of 17 September 2013. The investigators also obtained written depositions from those two men, two people living in the block of flats next to which Mr I.I. had died, the two men from the forest management cooperative, and seventeen police officers (including officers M.S. and R.I.), as well as materials from the concurrent criminal investigation into Mr I.I. \u2019 s death (see paragraphs 12 et seq. below). They also listened to the recordings of the police calls made in connection with the incident.","11. In their report, filed on 29 November 2013, the investigators set out their findings of fact in some detail, and concluded that there was no evidence that officers M.S. and R.I. had used unlawful force during the chase. For their part, the allegations that they had \u201csavagely beaten to death\u201d Mr I.I. were being looked into in the concurrent criminal investigation (see paragraphs 12 et seq. below).","Criminal investigation","(a) Initial investigation","(i) First phase","12. A few hours after the incident on 17 September 2013, at about midnight, an investigator from the investigation division of the Lovech regional prosecutor \u2019 s office and two forensic technicians inspected the scene. They took pictures of the van, the police car and the place where Mr I.I. had died. At about the same time another investigator inspected Mr I.I. \u2019 s body in the hospital in Lovech.","13. The following day, 18 September 2013, a criminal investigation was formally opened against \u201can unknown perpetrator\u201d on suspicion of causing Mr I.I. \u2019 s death while carrying out a risky activity, contrary to Article 123 \u00a7\u00a7 1 and 4 of the Criminal Code (see paragraph 68 below). It was assigned to the same investigator who had inspected the scene.","14. The same day the investigator asked three medical experts \u2013 the head of the forensic department of the Lovech hospital, a forensic specialist from a hospital in Veliko Tarnovo, and a pathologist from the Lovech hospital \u2013 to perform an autopsy on Mr I.I. \u2019 s body, and (a) give an opinion about the cause of his death; (b) say whether he had any traumatic injuries and, if so, explain the manner in which those injuries had been sustained (in particular, whether they suggested a fight); and (c) specify whether Mr I.I. had taken alcohol or drugs before his death.","15. The same day the investigator interviewed Mr I.I. \u2019 s two companions. Another investigator interviewed a man (Mr V.M.) living in the block of flats next to which Mr I.I. had died.","16. The following day, 19 September 2013, the investigator again inspected the place where Mr I.I. had died, and interviewed officers M.S. and R.I. They stated, inter alia, that officer R.I. had fired nine shots at the van. They went on to say that after a prolonged struggle they had managed to overcome Mr I.I. \u2019 s fierce resistance, press him in the prone position against the ground, and handcuff him behind his back, even though he had kept on struggling. Mr I.I. had at that point screamed twice that he could not breathe, and they had immediately rolled him onto his side and uncuffed him. Noticing that he had loosened down, they had checked him for pulse and had called the Lovech police switchboard for backup and an ambulance. The two police officers from Lovech had arrived shortly after that, and the ambulance had arrived about ten minutes later.","17. In late September 2013 the investigator interviewed (a) a woman living in the same block of flats; (b) an acquaintance of Mr I.I. (Mr E.K.) who had passed near the scene; (c) the relative whom Mr I.I. had called during the chase; (d) Mr I.I. \u2019 s personal physician; and (e) another woman living in the same block of flats.","18. During the same time the investigator obtained medical documents relating to Mr I.I. as well as communications data about the calls made from his mobile telephone, and from the mobile telephones of officers M.S. and R.I. and of one of Mr I.I. \u2019 s companions.","19. A couple of weeks later, during the course of October 2013, the investigator interviewed (a) Mr I.I. \u2019 s friend whose complaint had triggered the internal investigation by the Ministry of Internal Affairs; one of Mr I.I. \u2019 s companions (second interview); (c) a third woman (Ms B.P.) living in the block of flats near which Mr I.I. had died; and (d) the police officer from Lovech whom one of Mr I.I. \u2019 s companions had called during the chase. In her interview, Ms B.P. stated, inter alia, that from her balcony she had not directly seen Mr I.I. getting kicked, but that she had heard him scream that he could not breathe, and that according to her he had been beaten for about fifteen to twenty minutes, during which time he had kept screaming that he could not breathe. She also stated that the police car from Lovech had arrived before the ambulance.","20. In mid-October 2013 the investigator obtained recordings from the calls (a) made by the four people living in the block of flats to the national emergency number; (b) between officer R.I. and the Pleven police switchboard; and (c) between the Pleven and Lovech police switchboards.","21. The medical expert report was filed in mid-October 2013 (although the autopsy itself had been performed on 18 September 2013, the day after Mr I.I. had died). The three experts described their autopsy, histology and toxicology findings in detail, and stated that Mr I.I. had suffered cardiogenic shock which had caused a quick cardiac death, with an acute breakdown of the pumping function of the heart and an ensuing interruption of blood flow in the brain. Mr I.I. had experienced a reduced electrical conduction of the heart, which had resulted in atrial fibrillation. That had been due to emotional stress, which had caused an increase of the tonus of the sympathetic nervous system and a surge in the flow of noradrenaline from the sympathetic nerves into the myocardium and of adrenaline from the adrenal glands, resulting in a reduced capacity of the myocardium to use the oxygen flowing into it. The ensuing diffuse hypoxia of the myocardium had in turn led to atrial fibrillation and an inadequate blood supply, combined with an increased need for such blood supply. In their autopsy report, the experts also noted that Mr I.I. had suffered from left ventricular hypertrophy (thickening of the muscle of the heart \u2019 s left ventricle).","22. The experts went on to say that the traumatic injuries to Mr I.I. \u2019 s face and limbs (laceration next to the left eyebrow; swelling of the eyelid and haemorrhage in the cornea of the left eye; bruise and an abrasion next to the right elbow; bruise and abrasion on the left arm; three linear bruises on the back; and bruises around the wrists) could have been caused by the impact of, or against, blunt objects, for instance a fall to the ground and pressing against it. None of those injuries had played a role in the fatal outcome. Two deep haemorrhages just below Mr I.I. \u2019 s scapulae could have been caused by someone pressing him with knees to the ground. There were also haemorrhages in Mr I.I. \u2019 s brain, which had not been caused by blows but by a sudden surge in his arterial pressure resulting from stress.","23. In the experts \u2019 view, Mr I.I. would have died even if quickly given specialised medical care.","24. On 21 October 2013 Mr I.I. \u2019 s mother intervened in the proceedings in her capacity as a victim.","25. About two weeks later, on 3 and 4 December 2013, the investigator interviewed (a) one of the two police officers from Lovech who had arrived at the scene; (b) the van \u2019 s owner; and (c) the emergency medical doctor and nurse who had arrived at the scene in the ambulance.","26. On 16 December 2013 the investigator allowed the first applicant (who had apparently also intervened in the proceedings in her capacity as a victim) and Mr I.I. \u2019 s mother to inspect the case file. Having done so, they stated that the evidence of officers M.S. and R.I. was self-serving, and, as regards specifically the questions whether Mr I.I. had been rolled onto his side rather than left in the prone position and had had his handcuffs removed, were contradicted by the evidence of the acquaintance of Mr I.I. who had passed near the scene (Mr E.K.), of one of the two police officers from Lovech who had arrived at the scene, and of the emergency nurse. Another point which called for further elucidation was whether the emotional stress which had apparently caused Mr I.I. \u2019 s death had resulted from the shots fired during the chase. It also had to be established whether Mr I.I. \u2019 s traumatic injuries had been caused by blows and whether the assertions of officers M.S. and R.I. that he had put up fierce resistance were true, perhaps through medical evidence about possible injuries suffered by the officers and by interviewing the woman from the nearby block of flats who had made the first emergency call. The first applicant and Mr I.I. \u2019 s mother also urged the authorities to: (a) interview the driver of the ambulance and the two men from the forest management cooperative who had alerted officers M.S. and R.I. of Mr I.I. \u2019 s presence in the forest; (b) interview again Mr I.I. \u2019 s friend whose complaint had triggered the investigation by the Ministry of Internal Affairs; (c) ask the experts about a possible causal link between the stress which had caused Mr I.I. \u2019 s death and the actions of officers M.S. and R.I.; (d) attempt to identify a taxi driver who had allegedly passed near the scene; and (e) obtain the clothes worn by Mr I.I. at the time of the incident.","27. On 19 December 2013 the Lovech regional prosecutor \u2019 s office noted that there was indeed a discrepancy in the witness evidence about whether Mr I.I. had been left in the prone position and with handcuffs on; this called for a confrontation between the witnesses on that point. There was, however, no need to obtain a fresh expert report on a possible causal link between the actions of officers M.S. and R.I. and the stress endured by Mr I.I., since that link was obvious. It was a different matter whether the officers \u2019 actions had been lawful. Nor was there a need for a fresh medical expert report about the mechanism in which Mr I.I. \u2019 s traumatic injuries had been caused, as the first one had already clarified that. Further information was indeed needed about the exact number, distance and direction of the shots fired at the van, and about whether officer R.I. had used lethal ammunition. Evidence was also needed about any injuries suffered by the two officers. It was not, however, necessary to interview again I.I. \u2019 s friend whose complaint had triggered the internal investigation by the Ministry of Internal Affairs, because his assertions had been based on statements by Mr I.I. \u2019 s two companions, who had already been interviewed. The requests for further witness evidence were, for their part, well-founded. Lastly, Mr I.I. \u2019 s clothes had to be obtained as well.","(ii) Second phase","28. On 19 February 2014 the investigator and a forensic technician inspected the van and photographed it.","29. On 24 February 2014 the investigator interviewed a taxi driver who had passed near the scene. He said that he had seen the beginning of the chase on foot, but had not managed to make out what had happened during the ensuing struggle between Mr I.I. and the two officers.","30. The same month the investigator also obtained written evidence that officer M.S. had been examined by a medical doctor the day after the incident and that it had been noted that he had bruises on the lower lip, the right wrist and the left calf. There was no evidence that officer R.I. had undergone a medical examination. For their part, Mr I.I. \u2019 s clothes had not been preserved by the hospital where his body had been taken.","31. In late February 2014 the investigator ordered an expert report on the shots fired at Mr I.I. \u2019 s van. In his report, submitted in late March 2014, the ballistic expert stated that (a) the shots had been fired using \u201cstop cartridges\u201d [3]; (b) altogether twelve projectiles had hit the van (two in the back door windows, fired from a distance of less than twelve metres; seven more again in the back door windows but fired from a distance of more than twelve metres; and two more: one in the upper part of the rear left fender, and one in the left rear-view mirror, both fired from a distance of more than twelve metres); and (c) there was no method for establishing whether further shots had been fired.","32. In early March 2014 the investigator asked a medical expert to explain the way in which the injuries suffered by officer M.S. had been inflicted. In her report, submitted three days later, the expert said that those injuries could have been sustained in the manner described by officer M.S. \u2013 in a struggle with Mr I.I.","33. In mid-April 2014 the investigator carried out a confrontation between officers M.S. and R.I. and the emergency nurse. Officers M.S. and R.I. stated that they had unlocked Mr I.I. \u2019 s handcuffs, leaving them attached solely to his left hand, and had turned him to one side. The nurse stated that she did not recall whether Mr I.I. had had handcuffs on.","34. In late April 2014 the investigator carried out a confrontation between officers M.S. and R.I. and Mr I.I. \u2019 s acquaintance who had passed near the scene (Mr E.K.). The latter stated that he had seen Mr I.I. lying in the prone position and with handcuffs on. The officers maintained that they had rolled Mr I.I. onto his side and had removed the handcuffs from one of his hands.","35. In mid-May 2014 the investigator carried out a confrontation between officers M.S. and R.I. and one of two police officers from Lovech who had arrived at the scene. The latter stated that he could not recall whether the handcuffs had been attached to Mr I.I. \u2019 s two hands, or one hand only. Officers M.S. and R.I. maintained their earlier statements.","36. On 21 May 2014 the investigator again allowed the first applicant and Mr I.I. \u2019 s mother to inspect the case file. Having done so, they requested that (a) blood recovered from the scene be tested for whether it was a match for that of Mr I.I.; (b) the discrepancy between the evidence of officer R.I., who claimed that he had fired nine shots, and the expert report, which had noted twelve shots, be elucidated further; (c) the investigator interview again the emergency medical doctor and nurse who had arrived at the scene, as well as officers M.S. and R.I. and one of the two police officers from Lovech who had arrived at the scene; (d) more information be gathered about what had become of Mr I.I. \u2019 s clothes; and (e) a fresh medical expert report be ordered on a possible causal link between the pressing of Mr I.I. face down against the ground and his heart failure.","37. On 27 May 2014 the Lovech regional prosecutor \u2019 s office rejected those requests. It noted that (a) Mr I.I. \u2019 s traumatic injuries and the cause of his death had already been clarified; (b) the discrepancy between the ballistic report and officer R.I. \u2019 s evidence about the number of shots fired at the van was immaterial; (c) further interviews of the emergency medical doctor and nurse, officers M.S. and R.I., and the police officer from Lovech who had arrived at the scene would not yield more information; (d) the first medical expert report had sufficiently explained the cause of Mr I.I. \u2019 s death, without noting a possible link with him being pressed to the ground face down and with handcuffs on; and (e) Mr I.I. \u2019 s clothes had not been preserved, but that could not be undone.","(iii) Discontinuance","38. On 18 July 2014 the Lovech regional prosecutor \u2019 s office discontinued the investigation. It set out its findings of fact, commented on some of the evidence, and noted that the police operation in which Mr I.I. had lost his life had been duly ordered and planned. Officers M.S. and R.I. had lawfully tried to stop the van and had then lawfully chased it. The force used by them had been fully in line with the relevant provisions of the Ministry of Internal Affairs Act 2014 (see paragraph 73 below). They had admonished Mr I.I. several times to stop, and had used force and a weapon only because Mr I.I. had at first tried to run one of them over, had then tried to push their car off the road, and had after that put up fierce resistance. By doing so, he had endangered both the officers and his two companions. Mr I.I. \u2019 s ensuing death had not had a direct or indeed any causal link with the officers \u2019 actions, which had at all times corresponded to the development of the situation and their powers. Mr I.I. had placed himself in a stressful situation which had caused his heart to fail.","(b) Judicial review of the discontinuance of the initial investigation","39. The first applicant and Mr I.I. \u2019 s mother sought judicial review of the discontinuance. They submitted that the medical experts had not elucidated whether the manner in which Mr I.I. had been pressed to the ground had contributed to his death; it was hence necessary for experts from another judicial region to clarify the point, and also whether Mr I.I. \u2019 s injuries had been caused by his falling to the ground or by blows. In addition, when discontinuing the investigation the prosecutor had not analysed the evidence of officers M.S. and R.I. about their exact actions at that juncture. Nor was there any evidence of telephone calls between the Pleven and Lovech police switchboards in relation to the incident. The prosecutor had, moreover, not commented on Ms B.P. \u2019 s evidence (see paragraph 19 above), which suggested that the officers had used excessive force. Lastly, the evidence of injuries suffered by the officers was unconvincing. The force they had used had been unlawful and excessive.","40. Having examined the claim on the papers, on 5 August 2014 the Lovech Regional Court quashed the discontinuance (see \u043e\u043f\u0440. \u2116 285 \u043e\u0442 05.08.2014 \u0433. \u043f\u043e \u0447. \u043d. \u0434. \u2116 292\/2014 \u0433., \u041e\u0421-\u041b\u043e\u0432\u0435\u0447 ).","41. The court held that not all relevant evidence had been obtained, and that the investigation had been one-sided and formalistic, based on insufficiently comprehensive interviews and an inadequate analysis of some evidential discrepancies. In particular, Ms B.P. \u2019 s assertion that officers M.S. and R.I. had beaten Mr I.I. for fifteen to twenty minutes in spite of his pleas that he could not breathe, and that the police car from Lovech had arrived before the ambulance (see paragraph 19 above) had not been tested against the other evidence, in particular that of Mr V.M., whose account on that point somewhat differed. One of the officers from Lovech who had arrived at the scene had, in particular, not been specifically asked whether upon his arrival Mr I.I. had still been alive. The discrepancies between the evidence of officer M.S. and of Mr E.K. had not been resolved either. Mr V.M. and Mr E.K. had mentioned the presence of a third officer at the scene, but that had not been followed upon. The two men from the forest management cooperative had not been questioned either, even though they had seen the beginning of the car chase.","42. Moreover, the prosecutor had disregarded the provisions proscribing the use of weapons with respect to people suspected of non-violent offences and not posing a risk to anyone \u2019 s life or health (see paragraph 71 below). Officers M.S. and R.I. had been aware that they had been trying to arrest someone suspected of illegal logging, which was plainly a non-violent offence. It could not be accepted that Mr I.I. had posed a risk to the officers or his companions. The dangerous situation had been caused by the chase undertaken by the officers, and the risk had been not only to Mr I.I. but also to his companions. The use of \u201cstop cartridges\u201d [4] had to be looked at more carefully as well. Lastly, the medical experts had to be asked additionally whether (a) more timely medical attention could have saved Mr I.I. \u2019 s life, and (b) it had been possible for officer R.I. to observe breathing and pulse if Mr I.I. had, as stated by the experts, died suddenly from cardiogenic shock.","(c) Renewed investigation","(i) First phase","43. In the renewed investigation, on 30 September 2014 the investigator asked the same experts who had performed the autopsy on Mr I.I. \u2019 s body (see paragraphs 14 and 21 above) to say whether: (a) he could have been saved if taken to a hospital immediately after saying that he was suffocating, and (b) it had been possible that he could have been still breathing and having a pulse, as asserted by officer R.I., even though he had, according to the experts, died suddenly form cardiogenic shock. In their report, which became ready in early October 2014, the experts stated that Mr I.I. \u2019 s death, due to heart failure resulting from stress, had been impossible to avert. The interval between the first acute symptoms and the death had been about five minutes. The death had not been caused by mechanical asphyxiation resulting from Mr I.I. \u2019 s body being pressed to the ground.","44. In December 2014 the investigator interviewed a man from Bohot who had first heard the noises from the illegal logging carried out by Mr I.I., and the two men from the forest management cooperative who had been present at the beginning of the chase.","45. In January 2015 the investigator interviewed again Ms B.P. (see paragraph 19 above), who stated, inter alia, that her impressions from the struggle beneath her balcony had been mostly auditory rather than visual. She went on to say that after she had been called for her first interview, she had been visited by Mr I.I. \u2019 s former wife, who had urged her to say that she had not merely heard the scene but also observed it.","46. In late February 2015 the investigator interviewed again one of the two police officers from Lovech who had arrived at the scene.","47. On 3 June 2015 the investigator allowed the first applicant to inspect the case file. Having done so, she requested a fresh expert report, voicing doubts about the correctness of the existing ones.","48. On 15 June 2015 the Lovech regional prosecutor \u2019 s office rejected the request, finding no reason to question the experts \u2019 professional competence and integrity, or the accuracy of their reports. It noted, however, that during Mr I.I. \u2019 s autopsy the medical experts had noted a possibly pre-existing heart condition (see paragraph 21 in fine above). They had to be asked to elaborate on that, and on the role of that condition in the fatal outcome. It went on to say that the repeat interviews carried out by the investigator had been too formalistic; it was hence necessary to interview some witnesses again, with specific questions, and if necessary organise confrontations between them.","(ii) Second phase","49. In August 2015 the investigator asked the same medical experts (see paragraphs 14, 21 and 43 above) to say whether: (a) Mr I.I. \u2019 s heart condition found during the autopsy had been pre-existing or had been triggered by the incident; (b) if pre-existing, that condition had played a role in the cardiogenic shock and the fatal outcome; (c) a healthy heart could have suffered such shock; and (d) such shock necessarily resulted in death. In their report, filed later in August 2015, the experts said that the autopsy had revealed abnormalities in Mr I.I. \u2019 s heart tissue. In a situation of physical effort, that pre-existing medical condition (left ventricular hypertrophy) had caused cardiogenic shock and death within a few minutes. If his heart had been healthy, the situation would not have produced these effects.","50. In late September 2015 the investigator interviewed yet again the two officers from Lovech who had arrived at the scene, as well as Mr E.K.","51. On 19 October 2015 the Lovech regional prosecutor \u2019 s office referred the case back to the investigator, noting that she had failed to follow in full the Lovech Regional Court \u2019 s instructions. In particular, the investigator had not sufficiently analysed the discrepancies between Ms B.P. \u2019 s initial and subsequent evidence. Ms B.P. had to be questioned again in a structured way, and confronted with officers M.S. and R.I. and the two police officers from Lovech who had arrived at the scene. Nor had the investigator done enough to trace Mr V.M. (who had apparently gone abroad after his first interview) so as to question him again. Mr E.K. had to be confronted with the four police officers as well, and asked specifically about Mr I.I. \u2019 s position (lying in the prone position or not, handcuffed or not, and so on). Lastly, the ballistic expert had to be asked whether the \u201cstop cartridges\u201d [5] used by the officers had been capable of punching the van \u2019 s tyres.","(iii) Third phase","52. On 22 October 2015 the investigator interviewed Ms B.P. for a third time. She stated, inter alia, that from her balcony she had heard sounds which had resembled those produced by kicks, but that she had not really seen anything in the dark. She also stated that Mr I.I. \u2019 s former wife, who originated from the same village as her, had unexpectedly visited her shortly before her first interview (see paragraph 19 above) and had asked her to \u201cbeef things up a bit\u201d and had given her 20 Bulgarian levs. Mr I.I. \u2019 s former mother-in-law had then called with the same request. Mr I.I. \u2019 s former wife had later said that she would \u201cgive money\u201d to prove that he had been killed.","53. In mid-November 2015 the investigator interviewed once more officers M.S. and R.I. They stated that during the chase officer R.I. had fired at the van from ten metres or more. The same day the investigator organised confrontations between, on the one hand, those two officers, and their two colleagues from Lovech, and, on the other hand, Mr E.K. and Ms B.P. In the course of those confrontations officers M.S. and R.I. stated that the noise which Ms B.P. had interpreted as coming from kicks could have been from the struggle in which they had tried to overcome Mr I.I. \u2019 s resistance. They denied having kicked Mr I.I.","54. The additional ballistic report requested by the Lovech regional prosecutor \u2019 s office (see paragraph 51 in fine above) was apparently filed in late December 2015.","55. On 16 February 2016 the investigator allowed the first applicant to inspect the case file. Having done so, she stated that officers M.S. and R.I. had caused Mr I.I. \u2019 s death, even though the experts had opined otherwise. The officers had used excessive force not only when tackling Mr I.I. but also earlier, during the chase.","(iv) Discontinuance","56. On 1 April 2016 the Lovech regional prosecutor \u2019 s office discontinued the renewed investigation. It noted that according to the additional expert evidence report Mr I.I. had suffered from left ventricular hypertrophy, which had caused him to die within a few minutes, and that his death could not have been averted by more timely medical care. Ms B.P. \u2019 s evidence in the course of the renewed investigation had somewhat differed from her initial evidence. She had, moreover, admitted that before her first interview Mr I.I. \u2019 s former wife had influenced her. Officers M.S. and R.I. had been specifically asked about the distance from which they had fired the shots during the car chase. The fresh confrontations had not allowed all discrepancies in the witness evidence to be resolved. It had remained unclear whether the handcuffs had remained on Mr I.I. \u2019 s both hands and whether the noises heard by Ms B.P. had been from kicks. But those were, ultimately, unsubstantial details. What mattered was that the two officers had lawfully tried to stop and arrest Mr I.I. Their use of \u201cstop cartridges\u201d [6] \u2013 which were not a \u201cweapon\u201d within the meaning of section 74 of the Ministry of Internal Affairs Act 2006 (see paragraph 71 below) \u2013 had also been lawful. The same went for the officers \u2019 efforts to restrain Mr I.I., who had put up fierce resistance. Mr I.I. \u2019 s sudden death had been non-violent, resulting from his left ventricular hypertrophy, and had not had a direct \u2013 indeed any \u2013 causal link with the officers \u2019 actions, which had at all times matched the development of the situation. Even if stress had contributed to Mr I.I. \u2019 s death, the officers could not be held liable for it, because the whole situation had been brought about by Mr I.I. \u2019 s own actions: his attempt to flee, his failure to heed the officers \u2019 orders, and his resistance against arrest.","(d) Judicial review of the discontinuance of the renewed investigation","(i) At first instance","57. The first applicant sought judicial review of the discontinuance. She argued that the medical experts had not sufficiently elucidated whether the manner in which Mr I.I. had been pressed to the ground had contributed to his death; it was hence necessary for experts from another judicial region to clarify the point. In addition, when discontinuing the investigation the prosecutor had not analysed the evidence of officers M.S. and R.I. about their exact actions at that juncture. Nor was there any evidence of telephone calls between the Pleven and Lovech police switchboards in relation to the chase. The prosecutor had, moreover, been wrong to discount Ms B.P. \u2019 s evidence, which suggested that the officers had used excessive force. For its part, the evidence of Mr E.K. and of one of the two police officers from Lovech who had arrived at the scene suggested that officers M.S. and R.I. had not removed Mr I.I. \u2019 s handcuffs. The evidence of injuries suffered by officers M.S. and R.I. was unconvincing.","58. Having examined the claim on the papers, on 21 April 2016 the Lovech Regional Court upheld the discontinuance (see \u043e\u043f\u0440. \u2116 134 \u043e\u0442 21.04.2016 \u0442. \u043f\u043e \u0447. \u043d. \u0434. \u2116 138\/2016 \u0433., \u041e\u0421-\u041b\u043e\u0432\u0435\u0447 ).","59. It noted that the medical experts had already noted that there was no direct causal link between the way in which Mr I.I. had been pressed to the ground and his death. There was, furthermore, evidence that the Pleven police had contacted the Lovech police about the chase. The prosecutor had been right to discount Ms B.P. \u2019 s evidence; it was internally contradictory, clashed with the expert evidence (in particular as regards the duration of the struggle between officers M.S. and R.I. and Mr I.I.), and had been unduly influenced by Mr I.I. \u2019 s former wife. There was enough evidence that officer M.S. had suffered injuries.","60. The court went on to hold that the actions of officers M.S. and R.I. had been consistent with the applicable statutory provisions. In particular, they had been justified to use \u201cstop cartridges\u201d [7] during the chase, and resort to physical force and handcuffs when later tackling Mr I.I., who had put up fierce resistance, as attested by the injuries suffered by officer M.S. The question whether Mr I.I. had remained handcuffed was immaterial, as, according to the medical experts, this had no causal link with his death. The manner in which that death had occurred had been sufficiently elucidated by the experts, and it was hence not necessary to obtain further expert evidence on the point. The same went for the traumatic injuries suffered by Mr I.I. and the haemorrhages in his brain. It could not therefore be considered that officers M.S. and R.I. had committed an offence under Article 123 of the Criminal Code (see paragraph 68 below).","(ii) On appeal","61. The first applicant appealed. She reiterated that the causal link between Mr I.I. \u2019 s death and the way in which he had been pressed to the ground had not been sufficiently elucidated. The expert evidence obtained in the course of the renewed investigation had not properly addressed the point, and it was hence necessary for experts from another judicial region to clarify it. The findings about Ms B.P. \u2019 s evidence and the degree of force used by officers M.S. and R.I. were also erroneous.","62. Having examined the appeal on the papers, in a final decision of 7 June 2016 ( \u043e\u043f\u0440. \u2116 37 \u043e\u0442 07.06.2016 \u0433. \u043f\u043e \u0432. \u0447. \u043d. \u0434. \u2116 148\/2016 \u0433., \u0410\u0421-\u0412\u0435\u043b\u0438\u043a\u043e \u0422\u044a\u0440\u043d\u043e\u0432\u043e) the Veliko Tarnovo Court of Appeal upheld the lower court \u2019 s decision.","63. The court held that the prosecuting authorities and the lower court had correctly analysed the evidence and established the facts \u2013 in particular, the cause of Mr I.I. \u2019 s death and the lack of a causal link between the actions of officers M.S. and R.I. and that death. The conclusion that the force used by the officers had been strictly necessary was also correct, in view of the evidence about the resistance put up by Mr I.I. The officers had had no other means of arresting him. The lower court \u2019 s findings about Ms B.P. \u2019 s evidence had been correct. There was no reason to seek further expert evidence, since the available expert evidence had dealt with all relevant points, and there were no grounds to doubt its accuracy or the experts \u2019 professional competence and objectivity. The prosecuting authorities and the lower court had been correct to find that officers M.S. and R.I. had not committed an offence under Article 123 of the Criminal Code (see paragraph 68 below), or any other homicide offence. There was, moreover, no indication that they had had the requisite mens rea, since they had had no intention of killing Mr I.I. or a reason to suspect that he might die as a result of their actions. His death had been sudden and impossible to predict.","Expert opinions submitted by the applicants","64. The applicants submitted two opinions drawn up for the purposes of the proceedings before the Court by a forensic medical doctor and a cardiologist. The opinions did not contain any information about the credentials of the two experts. The first opinion did not feature a date either.","65. The forensic medical doctor stated, in response to questions by the applicants \u2019 lawyer, that cardiac arrest occurred suddenly and without prior symptoms, with brain death taking place within three minutes from the moment when blood flow stopped. He also said that the prone position, in which Mr I.I. had been placed, could result in asphyxiation within about ten minutes, especially after the physical exertion immediately preceding his immobilisation, and that the autopsy \u2019 s findings were consistent with asphyxiation. Placement in another position would not have resulted in asphyxiation; it was well known that the prone position with pressure on the back could result in sudden death. If Mr I.I. had suffered a cardiogenic shock, the officers would not have been able to detect a pulse; that was more consistent with asphyxiation. An underlying heart condition had contributed to the fatal result. Cardiogenic shock was not a diagnose known to pathoanatomy; it was something to be diagnosed while a person was still alive. The acute symptoms of a cardiogenic shock could not last for five minutes, as found in the criminal investigation; it was much more sudden than that. The witness evidence that the incident had lasted ten to fifteen minutes and that Mr I.I. had complained of a lack of air was more consistent with asphyxiation due to immobilisation.","66. The cardiologist stated that the interval between the first symptoms of a heart incident and cardiac arrest could be between minutes and days. Timely medical attention could be crucial, and could overcome even a cardiac arrest. The resuscitation procedures, which had to include defibrillation, had to last at least thirty minutes, since biological death within five minutes could not be absolutely certain. Pressing against the ground could aggravate the situation of someone experiencing cardiac arrest.","67. In the Government \u2019 s view, that evidence was not to be taken into account, since it was too general (rather than geared towards the specific circumstances of the case), and since it came from experts who had not been properly identified, so as to enable an assessment of their credentials.","Relevant legal framework","Criminal-law provisions","68. By Article 123 \u00a7 1 of the Criminal Code, it is an offence to cause death by performing negligently a dangerous regulated activity. Doing everything possible to save the victim afterwards is a statutory mitigating circumstance (Article 123 \u00a7 4).","Use of force by the police","69. Section 72(1) of the Ministry of Internal Affairs Act 2006, as worded until the end of June 2012, provided, so far as relevant, that in carrying out their duties the police could \u201cuse force and auxiliary means only if those duties [could not] be carried out in a different way\u201d, in cases of (a) \u201cresistance or refusal to obey a lawful order\u201d, or (b) \u201carrest of an offender who [did] not obey or resist[ed]\u201d. By section 73(2), the use of force or \u201cauxiliary means\u201d had to correspond to the specific circumstances, the character of the breach of public order and the offender \u2019 s personality. By section 73(3), when using force or \u201cauxiliary means\u201d, the police had to take all measures to protect the life and health of the people concerned.","70. Section 72(2) defined \u201cauxiliary means\u201d to comprise handcuffs and rubber and plastic bullets.","71. In July 2012 section 72(1) was amended to say that force and \u201cauxiliary means\u201d could be used only \u201cif absolutely necessary\u201d. A new section 73(3) stipulated that \u201cpolice officers [could] only use the force absolutely necessary\u201d; a new section 74(6) banned the use of \u201cweapons\u201d to arrest or prevent the flight of someone suspected of a non-violent offence and not posing a risk to the life or health of someone else; and a new section 74a mandated that \u201c[t]he planning and control of the use of force, auxiliary means and firearms by the police ... [had to] include [the taking of] measures to attain the lawful aim at a minimal risk to the life and health of [those concerned]\u201d.","72. In the explanatory notes to the amendment bill the Government referred to the need to bring Bulgarian law fully into line with the applicable international standards and this Court \u2019 s case-law.","73. In July 2014 all those provisions were superseded by the similarly worded sections 85(1), 86(3), 86(7) and 88 of the Ministry of Internal Affairs Act 2014."],"224":["2.The applicant was born in 1951 and lives in Belgrade.","3.The applicant was represented by Mr C. Winterhoff and MrG.Schwendinger, lawyers practising in Hamburg. The Government were represented by their Agent, Ms D. Djonova.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant was a shipbuilding engineer and an authorised inspector of German Lloyd (GL), a ship classification company which, under an agreement entered into in 2007 with the respondent State, was authorised to verify whether vessels on Lake Ohrid were fit to navigate. The applicant was appointed the authorised GL surveyor for carrying out inspections of boats and issuing certificates confirming their fitness to navigate. The Ilinden (hereinafter \u201cthe boat\u201d) was one of the vessels on Lake Ohrid that was subject to such an inspection.","6.On 5 September 2009 the boat capsized and sank, causing the death of fifteen Bulgarian tourists who were among fifty-four passengers on board. The tragic incident attracted domestic and international attention.","7.On 6 September 2009 an investigating judge opened an investigation against the captain of the boat on suspicion of a \u201cserious offence against the safety and property of persons by operation of a means of transport\u201d.","8.During the investigation, the applicant was examined as a witness by the investigating judge. On that occasion, he submitted in evidence two reports dated 7 September 2009 (that is, two days after the accident occurred), regarding the inspections of the boat in 2008 and 2009. In those reports he wrote:","\u201c[The] Captain [has been] informed that staying of passengers, during sailing, is allowed only in the closed salon, below upper deck.\u201d","9.According to a subsequent court-commissioned technical expert report issued by the Faculty of Mechanical Engineering, the accident had come about as a result of a tear in a steel wire rope that was part of the steering system, thus causing a sudden change in the boat\u2019s navigation direction and its inclination to the right. The boat had subsequently inclined to the left, most probably on account of the panicked reaction of the thirty-four to thirty-six passengers who were on the open stern deck. According to the calculations and inspections regarding the stability of the boat, the experts concluded that if at least twelve passengers on that deck had moved to the port side of the boat, they would have increased the inclination resulting in an increase of the angle compared with the critical inclination angle of 16.6o. As a result, water had penetrated the boat, first through one of the side windows that was open at the time of navigation, causing the boat to sink quickly. The technical report found that the number of passengers in the compartments below deck should have been limited to thirty-five.","10.On 8 April 2010 the public prosecutor indicted both the captain and the applicant on the charge of a \u201cserious offence against the safety and property of persons by operation of a means of transport\u201d (Article 300 \u00a7 4 in conjunction with Article 299 \u00a7 3 and \u00a7 1 of the Criminal Code \u2013 see paragraphs 29 and 30 below). The applicant was accused of having acted recklessly when inspecting the boat in 2007, 2008 and 2009 and having issued certificates for those years without ordering the captain to dismantle part of the fittings (benches and a sunshade) mounted on the boat\u2019s upper deck or limiting the number of authorised passengers to thirty-five instead of forty-three (the latter figure being the one specified in the certificates). Those certificates stated that the boat \u201chad been duly surveyed\u201d and that \u201cthe condition of the hull, machinery and equipment was satisfactory\u201d. They contained no other observations. The indictment relied, inter alia, on the two inspection reports submitted by the applicant when he had been questioned as a witness (see paragraph 8 above). However, in line with the provisions of domestic law, the oral statement that the applicant gave when he was questioned as a witness was sealed in a separate envelope and excluded from the case file.","11.The applicant did not attend the trial although he was duly summoned. Two court levels (upon the applicant\u2019s appeal) decided to try him in absentia. The applicant was represented by two local lawyers of his own choice.","12.On 5 July 2011 the Ohrid Court of First Instance found both the captain and the applicant guilty as charged and sentenced each of them to one year\u2019s imprisonment. The court established that, according to the boat\u2019s licence issued in 1989, it had been registered to transport forty-three passengers who should only have been carried in the saloons below the upper deck. That information had been valid at the time of the accident. During a technical check of the boat carried out by a local commission in 2003, the captain had been informed that the maximum number of passengers authorised on board was thirty-five (following some modifications that had been made to the compartments below the upper deck), and that they could not be carried on the open deck until the boat\u2019s stability, in view of the fittings (see paragraph 10 above), had been verified. It further established that the applicant had examined the boat\u2019s technical ability to sail in 2006 and had issued a certificate containing a note stating that \u201c[passengers must only be carried] in closed saloons, below upper decks only. Staying of passengers on open decks, during sailing, is not permitted, until stability is checked for this condition of loading.\u201d. Relying on the court-commissioned expert report (see paragraph 9 above), the court held that two factors had been crucial in relation to the accident: the boat\u2019s technical flaw and the fact that it had been overloaded with passengers who had not been positioned in the appropriate area of the boat as most of them had been seated on benches on the open deck, which had not been authorised as an area in which passengers could be carried during sailing. During the trial, the court heard oral evidence from an expert who had been involved in the drawing-up of the said expert report, who stated that nothing would have happened had the boat been carrying the equivalent weight of forty-three passengers, that is, eight more passengers than the authorised limit of thirty-five.","13.The applicant was convicted of having carried out the boat\u2019s inspections between 2007 and 2009 recklessly in that he had failed to order the captain to remove the benches and sunshades from the upper deck and to limit the authorised number of passengers to thirty-five. The court dismissed the applicant\u2019s arguments that there had been no negligence on his part in the performance of his duties, that the boat had been in good condition when he had issued the 2009 certificate, that any technical flaws after that date could not be attributed to him and that it had been the responsibility of the local port authority to monitor the number of passengers carried on boats. The court held that the applicant should have ordered the captain to remove the said equipment from the deck and that he should have withheld the 2007, 2008 and 2009 certificates until the captain had complied with that order. The applicant\u2019s reports regarding the 2008 and 2009 inspections (see paragraph 8 above) confirmed that he had known about the relevant part of the structure that needed to be removed. However, the ban on passengers being carried above deck contained in the reports, prepared two days after the accident, had been self-serving. Furthermore, the applicant had not specified that the authorised number of passengers was thirty-five.","14.The applicant appealed against that judgment, arguing, inter alia, that the relevant part of the fittings, which weighed 60 kg, had not in itself affected the stability of the boat; what had was the fact that the passengers were positioned on the benches of the open deck during the journey in question. Accordingly, he argued that the reasoning in the impugned judgment was incorrect, because the basis on which he had been found guilty (failing to order the removal of the benches) was not related to what had caused the boat to sink (the positioning of the passengers on the benches). It had not been the applicant\u2019s responsibility to consider how the benches placed on the open deck might be used during journeys. The same argument applied to the other grounds on which the trial court had based his conviction, namely his failure to reduce the number of passengers allowed on board. The expert evidence admitted at trial (oral evidence from the expert) confirmed that nothing would have happened had the boat been carrying a weight corresponding to the weight of forty-three passengers, that is, eight passengers more than what should have been the authorised limit of thirty-five. In any event, the number of authorised passengers indicated on the certificates (forty-three) corresponded to the number of passengers specified in the boat\u2019s official records. Lastly, the applicant complained that the trial court had used and relied on his written reports of 7September2009 which he had produced in evidence while being examined as a witness (see paragraph8 above).","15.On 28 February 2012 the Bitola Court of Appeal dismissed the applicant\u2019s appeal, finding no grounds to depart from the established facts or from the reasoning set out in the first-instance judgment.","16.The applicant lodged an appeal against that judgment before the Supreme Court, reiterating the arguments raised in his previous appeal. He further maintained that the captain had known that passengers could not be carried on the open deck. The boat\u2019s 1989 registration licence, as well as the inspections of 2003 and 2006, specified that passengers (the maximum number being set at forty-three) could only be carried in the compartments below the upper deck. Inspections carried out in 2003 and 2006 had expressly banned passengers who were being carried during navigation from accessing and using the open deck benches until the stability of the boat had been checked. He further argued that in the absence of any modifications to the boat, that ban had still been applicable at the time of the accident. Moreover, there had been no statutory provision requiring the applicant to reiterate the ban specified in the 2006 certificate in the 2007, 2008 and 2009 certificates.","17.The applicant\u2019s appeal on points of law was communicated to the State public prosecutor, who submitted observations in reply, asking the Supreme Court to dismiss the appeal. According to the applicant, those observations were not forwarded to him.","18.On 5 June 2012 the Supreme Court, noting the public prosecutor\u2019s written reply, dismissed the applicant\u2019s appeal. It found that the applicant\u2019s omissions identified by the lower courts signified that he had acted recklessly in the performance of his duty, namely in carrying out the technical supervision of the boat. That judgment was notified to the applicant\u2019s lawyers on 3 July 2012."],"225":["2.The applicants were born between 1939 and 1945 and live in different cities in Malta (see Appendix). The applicants were represented by DrS.Grech and Dr I. Refalo, lawyers practising in Valletta.","3.The Government were represented by their Agent, Dr V. Buttigieg, State Advocate, and subsequently by their Agent Dr A. Buhagiar, Acting State Advocate.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicants are owners of a property, No. 125 Lapsi Street, St.Julian\u2019s, consisting of a corner house with a garden which was requisitioned in 1970, in line with the provisions of the Housing Act, Chapter 125 of the Laws of Malta, at a time when it was not in a good state.","6.Following work to make it habitable, which had not been carried out by the applicants but by the authority and eventually the tenants, on 7July 1981 it was allocated to couple C. The applicants refused to recognise the tenants and never accepted rent from them.","7.On an unspecified date before 2015 Mr C. died and the property continued to be occupied by his wife and his son, who was dependent on the mother for medical reasons.","8.The rent due in 2015 was 185 euros (EUR) annually, in line with the adjustments provided by Act X of 2009. Prior to that, it was less.","9.In 2015 the applicants instituted constitutional redress proceedings, against the Attorney General and the Housing Authority, requesting the court to find that the requisition order had breached their rights under Article 1 of Protocol No. 1 to the Convention. Consequently, they sought to annul the order and asked the court to make an award of compensation for the violation suffered including the rent for the occupation of the premises, as well as any other relevant redress.","10.By a judgment of 16 January 2018, the first-instance court, upheld an objection that the Attorney General was not the right defendant. On the merits it found a violation of Article 1 of Protocol No. 1 and ordered the eviction of the tenants, and the Housing Authority to find alternative accommodation for them. It also ordered the Housing Authority to pay EUR800 monthly in rent to the applicants until the eviction took place.","11.In particular the court considered that a request for judicial review was not an appropriate remedy given that the requisition had been lawful, and the decision to requisition the property had not been ultra vires, nor had it been taken against any principle of natural justice. It further considered that the interference was lawful and pursued a legitimate aim, as it had not been shown that couple C. was not in need of the property. However, the applicable rent was EUR 185 annually for a property which was valued by a court-appointed expert at EUR 13,200 annually (in 2018), that is, EUR15.42 monthly instead of EUR 1,100 monthly (according to the court\u2011appointed architect) or EUR 600-700 (according to the Government\u2019s expert). The applicants were thus suffering a disproportionate burden.","12.It considered that compensation was due as of 30April 1987 [date when Malta introduced the right of individual petition] until the date of judgment and was to be calculated on the basis of the estimate of the court\u2011appointed architect. According to the court-appointed architect the annual rental value in 1970 was EUR 600, in 1975 EUR 660, in 1980 EUR765, in 1985 EUR 900, in 1990 EUR 1,200, in 1995 EUR 1,500, in 2000 EUR3,150, in 2005 EUR 4,725, in 2010 EUR 8,000 and in 2015, EUR12,500. It followed that from 1987 to 2018 the applicants had to receive EUR124,475. However, that amount had to be diminished in the light of the public interest at play. The court awarded EUR100,000 in pecuniary damage reflecting loss of rent. It further awarded EUR500 for every year, over the thirty-year period during which they suffered the violation, that is, EUR 15,000 in non-pecuniary damage. All the costs, except for those (of EUR 1,655) of the Attorney General (who had been wrongly sued and thus those costs were attributed to the applicants), were to be paid by the defendant.","13.Having considered Mrs C. and her son as vulnerable individuals, the former being an elderly woman dependant on a widow\u2019s pension and the latter having medical needs, it considered that they were still worthy of protection, and thus they were to be given alternative accommodation by the State within a year - time during which the authorities were to pay the applicants an adequate rent of EUR 800 monthly.","14.The Housing Authority appealed.","15.By a judgment of 5 October 2018 the Constitutional Court confirmed the first-instance judgment on the merits but varied the redress. It confirmed the annulment of the requisition order and held that the tenants could no longer rely on the title given to them by virtue of the allocation of the property to them pursuant to the requisition order; it awarded EUR40,000 in compensation, and revoked any other order given by the first-instance court.","16.In particular, the Constitutional Court considered that given the legitimate aim behind the measure, as well as the fact that the property had been rendered habitable by the authorities and the tenants, the pecuniary damage awarded was excessive. Moreover, that court had not had the competence to fix a future rent, which fell solely within the competence of the legislature. It revoked the order for eviction, considering that although the constitutional jurisdictions could give any appropriate remedy, including an order for eviction if necessary, it did not mean that rules concerning procedure and competence were to be ignored - a matter which could create uncertainty and arbitrariness. It was not for the courts of constitutional competence to decide on questions of title to property, their role being limited to deciding on possible breaches of human rights and awarding redress which would bring the violation to an end. It followed that in the present case the court could only decide that the tenants could no longer rely on their title to the property pursuant to its allocation to them following the requisition order. This would allow the tenants the possibility of a fair hearing where they would be able to submit evidence concerning any other title they might have to retain the property, without prejudice to any claim for damage that the applicants might have if the tenants continued to maintain the property without title following this judgment. Similarly, it was not for the court to interfere with allocation of housing and order that alternative accommodation be found for the applicants.","17.In arriving at the award of compensation the Constitutional Court took account of the following: the discrepancy in the rent payable vis-\u00e0-vis the rent on the open market; that the violation persisted since 1987; that the expert valuations were only indicative of losses; that the value of the property increased as a result of the rehabilitation undertaken by the authority; the legitimate aim at issue; the uncertainty faced by the applicants as to whether they would ever recover their property; the opportunity of the applicants to regain possession of their property now that an order was being made depriving the tenants of their title under the requisition order; the compensation given in similar cases; the expenses incurred by the applicants in pursuing these proceedings; and the fact that the award should cover both pecuniary and non-pecuniary damage.","18.The applicants were ordered to pay half the costs of the appeal proceedings.","19.On 13 August 2018 part of the roof of the property collapsed causing damage to the rest of the property as well as adjacent property. According to the applicants\u2019 architect, the damage had been due in part to the development being undertaken in the adjacent property, but the majority of the damage had been due to a lack of maintenance over the years. In that light, the applicants filed a judicial letter against the tenants and the Housing Authority requesting the vacation of the property. At the date of the introduction of the application no response had been received and the tenants were still occupying the premises.","20.According to the tenant\u2019s testimony, during the below-mentioned proceedings, an architect\u2019s report undertaken prior to the development of adjacent property had found that the property at issue was well maintained. According to the testimony, once that development had taken place, structural damage was caused to the property. As a result, criminal proceedings ensued which found the developer guilty of causing the damage as a result of negligence. The tenants instituted civil proceedings against the developer for civil damage.","21.In June 2019 the applicants instituted eviction proceedings which were (at the time of observations \u2013 September 2020) still pending. MrsC. died in July 2019 and those proceedings were being continued by her son, who was resisting the eviction, despite the Constitutional Court judgment and the fact that the property was in a dangerous state following its partial collapse."],"226":["10.The applicant was born in 1978 and lives in Unterwagram.","11.She married E. in 2003. They had two children, A., born in 2004, and B., born in 2005.","12.On 10 July 2010 the applicant called the police because her husband had beaten her. In her statement to the police she alleged that she had problems with her husband and that he had been beating her for years. In the preceding months the situation had worsened because he had a gambling addiction, was heavily in debt and had lost his job. She stated that she had always supported him financially, but had also lost her job and therefore could no longer pay his debts. The police noted that the applicant showed signs of injuries, namely haematomas on her elbow and upper arm, which she stated she had sustained through beatings by her husband.","13.Pursuant to section 38a of the Security Police Act (Sicherheitspolizeigesetz \u2013 see paragraph 48 below), the police handed the applicant a leaflet informing her, among other things, of the possibility of seeking a temporary restraining order (einstweilige Verf\u00fcgung) against her husband under sections 382b and 382e of the Enforcement Act (see paragraphs 54 et seq. below).","14.When confronted with the allegations by the police, E. stated that he did not have any problems with his wife, but that he had had a fight with his brother the night before and had sustained injuries to his face. There were no indications that E. was in possession of a weapon. A barring and protection order (Betretungsverbot und Wegweisung zum Schutz vor Gewalt) in accordance with section 38a of the Security Police Act was issued against E. This order obliged him to stay away from their common apartment as well as from the applicant\u2019s parents\u2019 apartment and the surrounding areas for fourteen days. It appears that E. complied with the order. The police submitted a report to the public prosecutor\u2019s office (Staatsanwaltschaft), which brought criminal charges against E. on 20December 2010.","15.On 10 January 2011 the Graz Regional Criminal Court (Landesgericht f\u00fcr Strafsachen) convicted E. of bodily harm and making dangerous threats, and sentenced him to three months\u2019 imprisonment, suspended for three years with probation. The applicant refused to testify against E. He was nonetheless found guilty of pushing her against a wall and slapping her, and of threatening his brother and his nephew.","16.On Tuesday 22 May 2012 the applicant, accompanied by her counsellor from the Centre for Protection from Violence (Gewaltschutzzentrum), went to the St. P\u00f6lten District Court (Bezirksgericht) and filed for divorce. In her oral hearing before the judge, which was held at 11.20 a.m., she explained that the reasons for the breakdown of the marriage were her husband\u2019s continuous threats and violence against her throughout their marriage. She indicated that on the preceding Saturday the situation had escalated and she had suffered injuries. She added that she was planning to report him to the police and that she hoped that a barring and protection order would be issued against him.","17.On the same day at 1.05 p.m. the applicant, assisted by her counsellor from the Centre for Protection from Violence, reported her husband to the police for rape and making dangerous threats. She was interviewed by a female police officer who was experienced in handling cases of domestic violence. In her witness statement, the applicant described the following events in detail.","18.According to the applicant, on Saturday 19 May 2012, when the issue of a possible separation came up, the situation with her husband escalated. She arrived home from work that day at around 3 p.m. Her husband sent the children outside to play, because he said that he wanted to talk to her. He asked her what she was going to do, meaning now that he was gambling again. He thought that it was all her fault. He called her a whore and accused her of seeing other men, since she had not slept with him since February 2012. In the course of the ensuing argument E. repeatedly stated that he could not live without her and the children, and that he would take the children to Turkey. He started choking her and, with his hand still on her throat, pushed her onto the couch. He told her that he was a man and she was a woman, so she was obliged to have sex with him. The applicant told him to stop, but he removed the clothes from the lower part of her body and raped her. She said that he did not hold her tightly during the rape, but she did not resist out of fear of being beaten if she did. After the incident she took a shower, put on her clothes and went to the pharmacy to obtain a contraceptive pill because she was afraid of getting pregnant.","19.The applicant stated further that E. had behaved violently towards her from the very beginning of their marriage, and that in 2010 he had been issued with a barring and protection order for two weeks because he had injured her. E. had been convicted of bodily harm in relation to that incident, and of making dangerous threats against his brother and nephew. The applicant explained that since 2010 she had been in regular contact with the local Centre for Protection from Violence. Because her husband had subsequently gone to hospital of his own accord to be treated for his gambling addiction and mental problems, she had forgiven him, refused to testify in the criminal proceedings against him and decided to give him another chance. However, the situation had worsened in February 2012, when E.\u2019s gambling addiction had resumed. The applicant explained that after his stay in hospital in 2010 her husband had told her that if he started to gamble again she could leave him. That was why he had been even more aggressive since February 2012 \u2013 he feared that she would take him up on his promise. The applicant stated that since the beginning of March 2012 he had been threatening her on a daily basis, always with the same phrases: \u201cI will kill you\u201d, \u201cI will kill our children in front of you\u201d, \u201cI will hurt you so badly that you will beg me to kill you\u201d, \u201cI will hurt your brother\u2019s children if I am expelled to Turkey\u201d (the applicant\u2019s brother lives in Turkey), and \u201cI will hang myself in front of your parents\u2019 door\u201d. She said that she took these threats very seriously, but that she had not previously reported them because she feared that he would act upon them if she did.","20.The applicant stated that her husband had been beating her regularly, and sometimes slapped the children as well, especially when he came back from the betting shop. For the most part, the children had not sustained any injuries from the slaps in the face; on just one occasion A. had sustained a haematoma on his cheek. She stated that the children were scared of her husband too. She had been thinking about getting a divorce for several months, but she had feared that he would harm her or her children if she did. The applicant added that her husband sometimes took her mobile phone away from her and locked her in their apartment so that she could not leave. She reiterated that she was in great fear of her husband and that she was reporting all this to the police at that stage because she wanted to protect herself and her children.","21.The police took pictures of the injuries the applicant had sustained (haematomas on her throat and scratches on her chin). A medical examination did not detect injuries in her genital area (see paragraph 28 below).","22.In accordance with a standard procedure, an online search concerning E. was made by the police in a central electronic database containing the personal data of offenders, including the reasons for and scope of previous barring and protection orders, temporary restraining orders and temporary injunctions. The police also checked the firearms registry to ascertain whether the husband had a gun at his disposal, and the result was negative.","23.After the applicant had reported the matter to the police, two police officers (one male and one female) took her to the family home, where E. and the children were present. The police officers also spoke to the children, who confirmed that their father beat their mother and had also regularly slapped them.","24.E. accompanied the police officers voluntarily to the police station. Subsequently, at 4 p.m., he was questioned by the police. E. denied the allegations of violence, rape and threatening behaviour. He admitted that he had had sexual intercourse with his wife on 19 May 2012. However, he contended that sexual contact with his wife had always followed a pattern whereby his wife initially refused but then allowed herself to be persuaded. He explained that he had beaten his wife in the past but had ceased doing so three years earlier.","25.On the basis of the reported facts and section 38a of the Security Police Act, the police officers issued a barring and protection order against E. at 5.15 p.m. This order obliged him to leave the family home for two weeks and prohibited him from returning to it or the surrounding areas; it also barred him from the applicant\u2019s parents\u2019 apartment and its surrounding areas. His keys to the family home were taken from him.","26.The applicant was handed a \u201cleaflet for victims of violence\u201d, informing her, among other things, of the possibility of extending the scope of the barring and protection order in time and place by seeking a temporary restraining order (einstweilige Verf\u00fcgung) against her husband under sections 382b and 382e of the Enforcement Act (see paragraphs 54 et seq. below). The applicant was informed in the leaflet that she could turn to the competent District Court for further information on the court proceedings. Moreover, the leaflet stated that a barring order was binding not only for the person posing a threat, but also for the victim, who must not let the person posing a threat back into the apartment, and that the police would check on the observance of the barring order. Lastly, the applicant was informed that her data would be transferred to a Centre for Protection from Violence, and she was provided with contact details of institutions providing counselling for victims of violence.","27.The police report concerning the barring and protection order described the applicant as \u201ctearful and very scared\u201d. E. was described as \u201cmildly agitated\u201d and \u201ccooperative\u201d. Under the heading \u201cindications of an imminent dangerous attack\u201d (Merkmale f\u00fcr einen bevorstehenden gef\u00e4hrlichen Angriff) it stated that a rape had been reported, that there was evidence of violence in the form of haematomas, that there had been continuous threats, and that the children had been slapped regularly. Under the heading \u201cindications of an increased risk from the person posing a threat\u201d (Merkmale f\u00fcr eine erh\u00f6hte Gef\u00e4hrlichkeit des Gef\u00e4hrders), the police noted:","(a) known reported\/unreported violent acts (not only currently, but also previous incidents);","(b) escalation (increase in the occurrence and seriousness of violence);","(c) current stress factors (such as unemployment, divorce, separation from partner\/children, and so on); and","(d) a strong tendency to trivialise\/deny violence (violence seen as a legitimate means).","28.In the evening of 22 May 2012, at 6.10 p.m., the police informed the public prosecutor on duty (Journalstaatsanwalt) of the situation in a phone call. In a note added to the file, the public prosecutor wrote the following:","\u201cThe accused is suspected of raping his wife on 19 May 2012, threatening her repeatedly during the marriage and beating her and the children. The wife has pressed charges with the aid of a representative of the Centre for Protection from Violence and a divorce is apparently pending.","The accused admits having had sexual relations with his wife, but denies the subjective element of the crime. Sexual relations during the marriage [according to him] took place in such a way that his wife repeatedly \u2018played hard to get\u2019. He would then keep touching her until he managed to persuade her to have sexual relations. According to him, this was typical behaviour for Turkish women. She had allegedly been saying for ten years that she did not want to have sex with him, but then had sex nonetheless.","Concerning the injuries, the police officer stated that the woman did not have injuries in her genital area, but had abrasions on her chin. The wife stated that when she had told [the accused] that she did not want to have sexual relations, he had choked her. Finally she had ceased her resistance and allowed intercourse to take place. He did not hold her down and did not use violence during the act, and she did not scream. Since March 2012 he had allegedly been threatening on a daily basis to kill her.","[The person posing a threat] was issued with a barring and protection order by the police.","I order that the children be questioned, that reports on the findings of the investigations so far be transmitted, and that [the person posing a threat] be charged while remaining at liberty (auf freiem Fu\u00df angezeigt).\u201d","On the same day, the public prosecutor\u2019s office instituted criminal proceedings against E. on suspicion of rape, bodily harm and making dangerous threats.","29.From 6.50 p.m. until 7.25 p.m. the children A. and B. were questioned in detail at their grandparents\u2019 home by the police concerning the violence they had been subjected to by their father. A transcript of the questioning was drawn up by the police. The children both confirmed their earlier statements to the effect that E. often slapped and screamed at them and behaved in the same way towards their mother.","30.At 11.20 p.m. the competent police officer emailed a report on the findings of the criminal investigations concerning the applicant\u2019s husband to the public prosecutor, together with transcripts of the applicant\u2019s, her children\u2019s and E.\u2019s questioning. The report mentioned that a barring and protection order had been issued and, among other things, listed the offences of which E. was suspected (rape, making dangerous threats, and torment or neglect of under-age, young or defenceless persons). Under the heading \u201cFacts\u201d, the situation was described as follows:","\u201cThe suspect has been beating his children and his wife for several years already. On 19 May 2012 the suspect choked his wife, as a result of which she suffered haematomas on her chin and her throat, which have been photographically documented. Then he had intercourse with her, even though she told him repeatedly that she did not want it. Furthermore, for months he has been threatening to kill his wife and their children.\u201d","31.The police report on the issuance of the barring and protection order containing the list of indications for an elevated risk (see paragraph 27 above) was not sent to the public prosecutor\u2019s office.","32.On 23 May 2012 the St P\u00f6lten Federal Police Department (Bundespolizeidirektion) assessed the lawfulness of the issuance of the barring and protection order against E. (under section 38a(6) of the Security Police Act). It found that the evidence showed \u201ccoherently and conclusively\u201d (klar widerspruchsfrei und schl\u00fcssig) that E. had used violence against his family, and that the barring and protection order was therefore lawful.","33.On 24 May 2012 at 9 a.m. E. went to the police station on his own initiative to enquire whether it would be possible for him to contact his children. The police took the opportunity to question him and to confront him with his children\u2019s statements that he had beaten them. E. confessed that he beat them \u201cevery now and then\u201d, but \u201conly as an educational measure\u201d, \u201cnot about the face\u201d and \u201cnever aggressively\u201d. His wife also slapped them from time to time. He added that his children were everything to him, and that he did not have anyone else but his children. He stated that the day before, he had had a telephone conversation with his daughter and she had wanted to see him. He admitted that he had problems with his wife and that he no longer shared the marital bed but slept on a couch in the living room, because she was \u201csuch a cold woman\u201d. He stated that he had not beaten her in the past three years. The police noted in their report that E. did not exhibit any signs of potential for aggression while in the presence of the authorities.","34.As a consequence of the above-mentioned questioning, additional charges were brought against E. for torment or neglect of under\u2011age, young or defenceless persons, under Article 92 of the Criminal Code. On 24May2012 the public prosecutor requested the St P\u00f6lten Regional Court to cross\u2011examine (kontradiktorische Vernehmung) the applicant and her children, and requested that an expert in child psychology be involved.","35.On 25 May 2012 E. went to A. and B.\u2019s school. He asked A.\u2019s teacher if he could speak briefly to his son in private, because he wanted to give him money. The teacher, who later stated that she had been aware that money had to be paid for some school events but that she had not been informed of the problems in the family, agreed. When A. did not return to class, she started looking for him. She found him in the school\u2019s basement, having been shot in the head. His sister B., who had witnessed her brother being shot, was not injured. E. had gone. An arrest warrant was issued in respect of him immediately. A. was taken to the intensive care unit of the city hospital.","36.The police questioned several witnesses, including the applicant and her daughter. The applicant stated that E. had always presented \u201cextremely different faces\u201d: towards strangers he had always appeared friendly, but only she had known his \u201ctrue face\u201d. After the barring and protection order was issued he had called her several times each day. He had wanted to see her and the children together. She had answered that he could of course see the children, but only in the presence of their grandfather. She had also told her children that they could see their father whenever they wanted. She had only preferred to avoid meeting her husband alone with the children, because she was afraid that he would kill the children in front of her. The applicant stated that she had seen her husband in front of the school with his car in the morning, before the shooting. She had been planning to inform the teacher the following day, 26 May 2012, of her family problems.","37. The applicant\u2019s counsellor from the Centre for Protection from Violence (see paragraphs 46 and 71 below) stated that she had never thought that E. would commit such a crime. A.\u2019s teacher said that she had never noticed any injuries on the boy or any other indications that he could have been a victim of domestic violence. She had never heard of any threats being made against the children. The mother of one of A.\u2019s schoolmates, a nurse, described E. as a \u201cfriendly and courteous person\u201d. She had met him an hour before the event in front of the school, and he had greeted her and shaken her hand. A father of another schoolmate had also met E. that morning and described him as \u201ccalm and polite\u201d.","38.On the same day, at 10.15 a.m., E. was found dead in his car. He had committed suicide by shooting himself. From his suicide note dated 24 May 2012, which was found in the car, it became apparent that E. had actually planned to kill both of the children as well as himself. He wrote that he loved his wife and children and could not live without them.","39.On 27 May 2012 A. succumbed to his injuries and died.","40.On 11 February 2014 the applicant instituted official liability proceedings. She contended that the public prosecutor\u2019s office should have requested that E. be held in pre-trial detention on 22 May 2012, after she had reported him to the police. There had been a real and immediate risk that he would reoffend against his family. It should have been clear to the authorities that the barring and protection order had not offered sufficient protection, particularly as the police had known that it could not be extended to cover the children\u2019s school. The applicant claimed 37,000euros(EUR) in compensation for non-pecuniary damage. She also applied to the court for a declaratory judgment (Feststellungsbegehren) that the Republic of Austria was liable for any possible future damage (such as mental and physical problems experienced by the applicant) caused by the murder of her son, which she assessed at EUR5,000.","41.On 14 November 2014 the St P\u00f6lten Regional Court (Landesgericht) dismissed the applicant\u2019s claim. It held that, taking into account the information the authorities had had to hand at the relevant time, there had not been an immediate risk to A.\u2019s life. A barring and protection order had been issued against E., which had required him to stay away from the family home and the applicant\u2019s parents\u2019 apartment, as well as the surrounding areas. E. had never acted aggressively in public before. Even though he had allegedly been issuing threats against his family for years, he had never acted upon them. He had complied with the barring and protection order issued in 2010, and no further misconduct had been reported to the authorities after the incident in 2010 until the applicant had reported him to the police on 22 May 2012. There had not been any indications that E. had had a gun in his possession, or that he had tried to obtain one. Moreover, after the issuance of the barring and protection order, E. had cooperated with the police and had not demonstrated any aggressive behaviour, so the authorities had been able to assume that there would be a reduction in tension. The Regional Court considered it relevant that, at the hearing, the applicant had herself admitted that the police might have had the impression that E. was cooperative and not aggressive. She told the court that her husband had been a good actor and could present himself well. To others he had always been very friendly and kind. She herself had always given him another chance when he showed remorse for his behaviour and promised to do better. The court weighed the applicant\u2019s and her children\u2019s right to be protected against the rights of E. under Article 5 of the Convention, and held that pre-trial detention should only be used as the ultima ratio. A less intrusive measure had been issued instead, namely the barring and protection order with respect to the applicant\u2019s and her parents\u2019 residential premises. The court concluded that the public prosecutor\u2019s office had therefore not acted unlawfully or culpably by not taking E. into pre-trial detention.","42.The applicant appealed, repeating that the public prosecutor\u2019s office should have been aware that there had been an increased threat of further violent acts by E. since she had filed for divorce. She presented statistics showing that the number of homicides committed between partners was significantly higher during the separation phase of a couple, the phase in which the applicant and E. had found themselves. The applicant asserted that the authorities had been aware that E.\u2019s violence against her had increased since February 2012. In fact, he had specifically threatened that he would kill the children in front of the applicant, and that he would kill her or himself. The applicant also argued that the domestic authorities were under a positive obligation under Article 2 of the Convention to protect her and her children\u2019s lives by making use of criminal-law provisions and the relevant measures under criminal law, which, in her specific situation, could only have meant detention. The barring and protection order as a \u201cless intrusive measure\u201d had not been sufficient as the police could not have extended it to cover the children\u2019s school.","43.On 30 January 2015 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant\u2019s appeal. It held that the public prosecutor\u2019s office had some discretion when deciding on whether to take a person into pre-trial detention. Official civil liability could only be established if the decision had not been justified under the particular circumstances. The starting-point for the evaluation of such a decision was the specific information the authorities had to hand at the time the decision was taken. The public prosecutor\u2019s office had to decide on the basis of the specific information available and the facts of the case before it. In the absence of such information, any general knowledge concerning increased levels of homicide during divorce proceedings was not decisive. What mattered was whether at the relevant time there had been serious reasons to suggest that there was a real and individual risk that E. would commit further serious offences against the applicant and her children. According to the information available to the public prosecutor\u2019s office at the time, and considering that a barring and protection order had already been issued, there had not been sufficiently specific grounds to assume the existence of such a risk, in particular in the public area, for the reasons already set out by the St P\u00f6lten Regional Court.","44.On 23 April 2015 the Supreme Court rejected an extraordinary appeal on points of law by the applicant. Its decision was served on the applicant\u2019s counsel on 16 June 2015."],"227":["2.The applicant was born in 1972. She is currently serving a sentence in Levo\u010da Prison. She was represented before the Court by Mr M. Cibu\u013ea, a lawyer practising in Liptovsk\u00fd Mikul\u00e1\u0161.","3.The Slovak Government (\u201cthe Government\u201d) were represented by their Co-Agent, Ms M. B\u00e1lintov\u00e1, from the Ministry of Justice.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.On 24 October 2009 a criminal prosecution was opened against an unknown perpetrator by the \u017dilina police following a murder committed the day before. The crime was classified as \u201cparticularly serious\u201d (obzvl\u00e1\u0161\u0165 z\u00e1va\u017en\u00fd zlo\u010din).","6.On the basis of a statement by P.O., who was heard as a witness, the police suspected his brother, J.O., who was arrested on 24 October 2009 and taken to the police station at 8.18 p.m.","7.On the evening of 24 October 2009 and the following day J.O. and his mother gave the police some items stolen from the victim\u2019s flat. At 4.50a.m. on 25 October 2009 the applicant\u2019s sister gave the police clothes worn by the applicant the day before. The applicant insisted on the fact that no traces of the victim\u2019s blood had later been found on the clothes.","8.On 25 October 2009, J.O. and the applicant were charged with \u201cparticularly serious\u201d murder. The decision stated that, because of the likely sentence, they had to be legally represented from the pre-trial stage of the proceedings (see paragraph 40 below) and that if they (or others authorised to do so on their behalf) did not choose their defence counsel within thirty minutes of being notified of the charges, a lawyer would be appointed for them by the court.","9.On the same day, according to the Government, after finding out that J.O. lacked the financial means to find a lawyer, the investigator asked the \u017dilina District Court to appoint defence counsels for both J.O. and the applicant as they had not chosen a lawyer within the relevant time-limit. According to the applicant, the investigator made that request without knowing her position. The court granted the investigator\u2019s request.","10.From 10.20 a.m. to 2.15 p.m. on 25 October 2009 J.O. was interviewed by the investigator and stated, in presence of the two court\u2011appointed counsels, that both he and the applicant had stabbed the victim.","11.On 25 October 2009, at around 3 p.m. according to the Government, the applicant arrived at the \u017dilina police station. According to the relevant record, she voluntarily responded to a summons to appear. She was notified of the charges and, from 3.20 to 5.25 p.m., was interviewed by the investigator in presence of the lawyers appointed for her and J.O. The first two pages of the record contained pre-printed information stating that the applicant had the right to choose a lawyer, that she had not done so and asked to be appointed one by the court, and that she had the right to remain silent and could not be forced into confession. The applicant specifically signed a statement saying that the information had been adequately explained to her and that she understood it. She further confirmed that she fully understood the charges and did not require any further explanation. All the pages of the interview record were signed by the applicant, and the last page was signed by both court-appointed lawyers.","12.During the interview the applicant indicated that she was seeing a psychiatrist once a year, that she was in receipt of an invalidity pension on account of a spinal disorder, that she fully understood the charges against her and waived her right to challenge them, and that she had not chosen a lawyer due to her financial situation and consented to be defended by the court-appointed lawyer. A note was made that the applicant had been given sufficient time to consult with her counsel prior to the interview. She then stated that she regretted what had happened, that she had been at the scene when J.O. had killed the victim, but that she had not participated in the killing. She later changed her description of the events and explained that J.O. had stabbed the victim first and then passed her the knife, and that the victim had died after she had stabbed her. At the end the applicant responded to the questions asked by her counsel and that of J.O.","13.It appears from the police record that the applicant was arrested at 5.30 p.m. on 25 October 2009 as she was considered a flight risk.","14.Several witnesses were also interviewed that day. The applicant pointed to the fact that two witnesses had stated that she had been with them in a pub at the time of the events.","15.At 12.12 p.m. on 26 October 2009 the investigator received an authority form confirming that a lawyer appointed by the applicant\u2019s sister was representing the applicant in the criminal proceedings. The lawyer was given the opportunity to consult the case file; he then authorised another lawyer to be his substitute in communication with the applicant.","16.At 3.03 p.m. the same day the \u017dilina regional prosecutor (\u201cthe prosecutor\u201d) filed a request to place J.O. and the applicant in detention.","17.On 27 October 2009 the court ordered an examination of the mental state of the two accused.","18.At 9 a.m. on 28 October 2009 the pre-trial judge interviewed J.O., who confirmed his confession made to the investigator and described the applicant\u2019s involvement in the murder. The applicant\u2019s substitute counsel was present.","Following the interview, the court granted the prosecutor\u2019s request to place J.O. in detention. No complaint was filed against that decision.","19.From 9.50 to 10.40 a.m. on 28 October 2009 the pre-trial judge interviewed the applicant, in presence of the substitute counsel. According to the official record, the applicant was again informed of her procedural rights. She then stated that she had been arrested at 5.30 p.m. on 25 October 2009 after voluntarily arriving at the police station, that she did not object to the police\u2019s conduct and that no violence had been used against her. She then disputed her confession, asserting that her statement to the investigator was untrue and had only been made out of fear. When replying to the prosecutor\u2019s questions, she admitted that she had stabbed the victim with J.O.\u2019s knife under threat but declared that the victim had died only after J.O. had cut her throat.","At the end, even though the applicant\u2019s lawyer disagreed with the prosecutor\u2019s request to place the applicant in detention, referring to the fact that the latter had voluntarily given herself up to the police, the court decided to order the applicant\u2019s detention with effect from 5.30 p.m. on 25October 2009. A complaint by her against this decision was dismissed by the \u017dilina Regional Court on 5 November 2009.","20.During the pre-trial stage of the proceedings the authorities secured further witness statements, several expert opinions, including those concerning the mental state of the accused, and recordings of telephone conversations.","21.An expert psychiatric and psychological opinion drawn up in January 2010, using a wide range of tests, concluded that the applicant had a slight intellectual disability (with an IQ of between 64 according to the Raven test and 69 according to the verbal part of the WAIS-R test), with infantile features and simplistic thinking. According to the experts, she was also very na\u00efve, emotionally immature and easily influenced. At the time of the events she had been able to identify that her actions were dangerous to society and to foresee their consequences, but had been limited in her ability to control herself due to emotional distress, a lower mental capacity and alcohol. The experts stated that during her examination the applicant had first denied the events but later confessed to them, had been insincere, had kept changing her statements and had naively feigned memory disorders.","22.On 28 May 2010 the applicant had a pre-trial confrontation with J.O., in presence of both defence counsels, during which she maintained that she had not been at the scene. When asked by the investigator why she had previously confessed to the murder and had been able to describe it in detail, the applicant responded that she had confessed out of fear and reproduced the events as described in the charges. J.O., on the other hand, first asserted that the applicant had been present and involved in the murder, then stated that she had not been at the scene and that he had committed the murder and felt guilty.","23.On 4 June 2010 the applicant and her counsel had the opportunity to consult the entire case file and familiarise themselves with the results of the investigation. They did not formulate any objections or propose any evidence; the applicant\u2019s counsel expressly stated that he was not asking for the activities carried out before he had taken over the applicant\u2019s representation to be repeated, but for the prosecutor to discontinue the prosecution because the evidence available did not, in his view, prove her guilt.","24.On 17 June 2010 the applicant was formally indicted for a \u201cparticularly serious\u201d murder committed together with J.O.","25.It is mentioned in the above indictment that, on the same day, J.O. and the prosecutor concluded a plea bargain in which J.O. pleaded guilty of the murder committed together with the applicant in exchange for a prison sentence of twenty-two and a half years.","26.After the prosecutor asked the court to approve the above plea bargain, the applicant\u2019s counsel complained to the court that he had not been informed beforehand of the plea-bargain negotiations despite the applicant and J.O. being tried jointly. The court did not accept his argument that such conduct had breached the applicant\u2019s defence rights and on 2July 2010 approved the agreement.","27.At another hearing held later that day the court proceeded to a preliminary examination of the applicant\u2019s indictment. The applicant refused to enter into a plea bargain and her counsel unsuccessfully proposed to the court that the prosecution be discontinued on the grounds that the crime had not been committed by the applicant.","28.Public hearings were then held on 27 September 2010, 2November 2010, 7, 27 and 28 December 2010, 7 and 11 January 2011. Numerous witnesses and experts were heard, and several expert opinions and other pieces of written evidence were produced.","29.At the hearing on 27 September 2010 the applicant denied her guilt, claiming that she had only confessed to the murder in the pre-trial stage of the proceedings out of fear. According to the record of the hearing, the expert in psychology present intervened in the applicant\u2019s examination in order to rephrase a question asked by the prosecutor; on one other occasion the applicant declared that she did not understand the prosecutor\u2019s question and it was then rephrased.","30.On 8 October 2010 the court granted a request by the applicant for release from pre-trial detention, stating that the existence of a reasonable suspicion against her was weakened by the evidence produced to date and the fact that the decisive direct evidence, that is to say J.O.\u2019s statement, had been lost due to the latter\u2019s death. That decision was later quashed by the appellate court.","31.At the hearing of 27 December 2010 the court took note of J.O.\u2019s death and granted a proposal by the prosecutor to read out J.O.\u2019s statements made on 25 and 28 October 2009 as well as the record of the pre-trial confrontation between him and the applicant. The latter did not make any comments or propose new evidence.","32.In his closing arguments made on 7 January 2011, the applicant\u2019s counsel pointed to the fact that both J.O. and the applicant had submitted numerous versions of events and that the evidence available, including several witness statements, demonstrated that the applicant had not been at the scene. He also insisted on the fact that she had been apprehended by the police in Liptovsk\u00fd Mikul\u00e1\u0161 on 24 October 2009, that is to say one day before her first interview, since she would have been unable to travel on her own to the police station in \u017dilina; that also explained why her clothes had been handed over at 4.50 a.m. on 25 October 2009 by her sister. According to her counsel, during those twenty-four hours the applicant had been described the events and told what to say; due to her intellectual disability, she had complied. Moreover, her subsequent interview had been unlawful because of the misleading nature of the questions asked by the investigator.","33.By a judgment of 11 January 2011 the applicant was convicted of \u201cparticularly serious\u201d murder committed jointly with J.O. and sentenced to fifteen years\u2019 imprisonment. The court noted that since both accused had repeatedly changed their version of events throughout the proceedings, their statements had been rigorously analysed and linked to the circumstantial evidence, without any reason being found for J.O. to have falsely implicated the applicant. In the court\u2019s view, the applicant\u2019s guilt had been proven mainly by J.O.\u2019s testimony but also by her repeated confessions made to the investigator, the pre-trial judge and the expert, which provided a very detailed description of the events (that she would have been unable to repeat had she not been at the scene) and which were for the most part consistent with J.O.\u2019s statements; given that the applicant had been unable to explain the subsequent changes in her testimony, but for the argument of fear, the court would not use her later statements. Other pieces of evidence, notably recordings of telephone conversations and some witness statements, also pointed to her guilt, and the expert opinions could not exclude the possibility that the victim had been stabbed by two people. Relying on the expert psychiatric opinion, which had not found any mental illness, the court considered that the applicant\u2019s slight intellectual disability could not, as such, lead to a conclusion of diminished responsibility.","34.In an appeal filed on 28 January 2011 the applicant challenged the guilty verdict, arguing that it had been clearly proven that she could not have been at the scene. She further complained that the court had refused to hear a witness for the defence and that her defence rights had been breached on account of the fact that her counsel had been unable to participate in the plea-bargain negotiations with J.O.","35.On 3 May 2011, following a hearing, the \u017dilina Regional Court dismissed the applicant\u2019s appeal as unfounded on the grounds that she had only presented her own assessment of the evidence; the judgment was changed solely as regards the type of the prison in which she was to serve her sentence. The appellate court considered that the first-instance court had gathered the necessary evidence, drawn correct findings of fact and responded to all objections raised by the defence, and that its conclusions were neither unfounded nor arbitrary. The guilty verdict was based on sufficient and convincing evidence, including J.O.\u2019s pre-trial statements made in compliance with the adversarial principle, the applicant\u2019s testimonies collected in a lawful manner and her full and free confession; in this connection, the appellate court observed that the applicant had in no way explained her pretended fear or alleged any violence or threat of violence and that all her interviews had taken place in her counsel\u2019s presence. The court further pointed out that the applicant\u2019s assessment of the forensic evidence was subjective and isolated from other evidence, including her own statements; that no evidence put her guilt in doubt, since the timeline of events as established and the physical distance between the relevant places did not rule out the possibility that she had been at the scene at the time of the murder; that the absence of her fingerprints and DNA at the scene did not prove that she could not have been there; and that the applicant\u2019s sister\u2019s statement was not credible and did not, in any event, exclude the applicant\u2019s presence at the scene at the time of the murder.","As to the first-instance court\u2019s refusal to hear a witness for the defence, the appellate court admitted that no reasons had been given in the judgment but considered that it was clear from the case file that the witness concerned had only been expected to confirm another witness statement found to be unreliable. It also admitted that the applicant\u2019s counsel should have been summoned to the plea-bargain negotiations with J.O. since an accomplice\u2019s statement of guilt necessarily affected the other accomplices. However, given the form and content of the plea-bargain negotiations, the absence of the applicant\u2019s counsel did not amount to a substantial breach of the applicant\u2019s defence and adversarial rights and did not render the agreement unlawful; in any event, the applicant and her counsel had been able to take note of the agreement and corresponding judgment concerning J.O., which were part of the case file.","36.On 2 May 2014 the applicant lodged an appeal on points of law, challenging shortcomings in the establishment of the facts as well as procedural errors and a breach of the principles of the presumption of innocence and in dubio pro reo. She argued that J.O.\u2019s statements were inconsistent and that the reliability of her confession should have been assessed in the light of her intellectual disability, the signs of which were clearly visible. In her view, the experts should have also examined her ability to understand the meaning of the criminal proceedings and testify about the events, and should have assisted her in her pre-trial interviews. The applicant further complained of a violation of her right to defence in the pre-trial stage of the proceedings, claiming that she had been arrested and interviewed one day earlier than that recorded by the police.","37.On 12 August 2014 the Supreme Court dismissed the applicant\u2019s appeal on points of law, holding, inter alia, that it was not called on to examine whether there was an extreme discrepancy between the evidence and the facts established by the lower courts. It further observed that the appeal on points of law could only be considered admissible if it had been proven that the applicant had been arrested on 24 October 2009 and that the authorities\u2019 conduct had had a negative impact on her later statements, which was not the case here.","38.The applicant filed a constitutional complaint in which she complained mainly of violations of her right to a fair trial guaranteed by Article 6 \u00a7\u00a7 1 and 3 (c) and of the principle of the presumption of innocence. She argued that the facts of the case and her participation in the murder had not been established beyond reasonable doubt and that all the evidence in her favour, including the expert opinions, had been ignored. The applicant further claimed that her pre-trial confession should not have been accepted as credible since it had not been supported by other reliable pieces of evidence and had been tainted by her intellectual disability, as well as the fact that her statements had been collected in the absence of an expert, in breach of her defence rights. Lastly, the applicant insisted on the fact that she had been arrested on 24 October 2009 and asserted that the Supreme Court\u2019s failure to duly examine this complaint amounted to a denial of justice and to a violation of her right to an effective remedy.","39.On 4 February 2015 the Constitutional Court dismissed the complaint as manifestly ill-founded, finding that the applicant was only challenging the outcome of the case and that the courts\u2019 decisions were based on comprehensive and convincing arguments and displayed no signs of arbitrariness. It stressed that while the applicant had confessed repeatedly during the pre-trial stage of the proceedings, the guilty verdict had not only been based on that confession since she had also been incriminated by the repeated statements of her co-accused; the courts\u2019 explanation as to why they had not believed the witnesses in the applicant\u2019s favour could be accepted. Moreover, the applicant\u2019s defence counsel, who had attended at all her pre-trial interviews, had never requested the assistance of an expert on account of her mental state."],"228":["2.The applicant was born in 1968 and lives in Shepetivka. He was represented by Mr M.Tarakhkalo and Ms V.Lebid, lawyers practising in Kyiv.","3.The Government were represented by their Agent, MrI.Lishchyna.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant was convicted of bribery committed, as established by the domestic courts (see paragraph 17 below), under the following circumstances:","(i)the applicant, at the time deputy commander for social issues in a military unit, told Soldier O.V. that he would make sure that O.V. gets an allowance (of 1,170 Ukrainian hryvnias (UAH), about 100 euros (EUR)) to improve his living conditions, in return for a UAH 800 (about EUR70) payment to the applicant;","(ii)at the same time the applicant, in his official capacity, was collecting contributions from the unit\u2019s servicemen for a celebration of the unit\u2019s anniversary. The domestic courts found that the money demanded from O.V. had been intended as the latter\u2019s contribution to funding the party (see paragraph17 (iv) below);","(iii)Soldier O.V. applied for the allowance and the unit\u2019s commanding officer, on the applicant\u2019s recommendation, awarded it. Once the allowance had been paid to O.V., the applicant, through Major R.V., pressed him to pay up, threatening that disciplinary proceedings would be instituted against him and his salary would be reduced;","(iv)on 23 May 2011 O.V. complained of being pressured for money to the military counterintelligence unit of the Security Service of Ukraine (SBU). The police and the SBU supplied him with banknotes marked with a special substance visible only in ultraviolet light;","(v)early in the morning on 25 May 2011 O.V. gave the banknotes to Major R.V. who in turn left them on the applicant\u2019s desk.","6.In the morning the same day the SBU and the police conducted the investigative measure of \u201cexamination of the scene of event\u201d (hereinafter \u201cscene examination\u201d \u2013 see paragraph 23 below for the relevant legislative provisions) in the applicant\u2019s office in the presence of the applicant and two attesting witnesses and drew up a report. There is no indication that the applicant was advised of any rights, in particular of the right to remain silent or the right to a lawyer. The content of report was as follows:","(i)banknotes (UAH 800) marked with the special marking substance were discovered under a sheet of paper on the applicant\u2019s desk. When asked about the origin of the money, the applicant responded that it could have been placed there by Major R.V. or in fact by anyone since the office had been unlocked;","(ii)the applicant\u2019s hands were examined under ultraviolet light and it was discovered that on his left hand there were two almost invisible spots of the special marking substance. The applicant\u2019s hands were swabbed with gauze pads and the swabs were sealed;","(iii)a sum of more than UAH 11,000 in unmarked banknotes was found in the applicant\u2019s safe. He explained that those constituted contribution to the unit\u2019s celebration. Some printed invitations to the celebration were also found;","(iv)the applicant added a handwritten note to the report asserting that the swabs had been made 1.5 to 2 hours after the discovery of the money and during that time he had touched the paper under which the money had been found and other things. Moreover, the spots of marking substance had been discovered also on the witnesses\u2019 hands. The applicant asserted, therefore, that the swabs could not serve as evidence against him.","7.In the course of the examination, the applicant called his lawyer and asked him to come. On the orders of an SBU officer and the unit\u2019s commanding officer, the lawyer was denied entry to the military compound where the office was located.","8.The lawyer lodged a complaint concerning refusal of access to the applicant. During the subsequent investigation the police officers explained that after completion of the examination of the applicant\u2019s office, in the afternoon of 25 May 2011, the applicant was brought to a police station, \u201cto provide explanations\u201d (that was confirmed by the police station\u2019s logbook). The applicant refused to speak. His lawyer attempted to see him at the station but was told by an officer that the applicant\u2019s whereabouts were unknown.","9.At some point after examination of the applicant\u2019s office on 25May 2011, criminal proceedings were instituted on suspicion of bribery.","10.The applicant was officially placed under arrest at 1.20 a.m. on 26May 2011. His rights as a suspect, including the right to remain silent and the right to a lawyer, were explained to him. He was allowed to consult the lawyer. From that point on and throughout the proceedings, the applicant was represented by lawyers of his choice.","11.In the course of the pre-trial investigation, the applicant was questioned several times, with his lawyers present, and denied any guilt.","12.During the trial the applicant also pleaded not guilty. He presented the following account of events (which appears to have remained largely consistent throughout the proceedings):","(i)as part of his duties the applicant had been preparing a party to celebrate the unit\u2019s anniversary. It had been agreed that salaried servicemen would all contribute to fund the party. O.V. had refused. The applicant had offered to help him apply for the allowance, to which he was entitled anyway, and O.V. would in turn contribute part of the money received to the party expenses. After O.V. had received the allowance he still had not contributed but the applicant had not pursued the issue and had told him that money was no longer needed;","(ii)Major R.V. had participated in the collection of funds for the celebration. To the extent that he continued discussing a contribution with O.V. after the applicant had said that the money was not needed, R.V. had done so without the applicant\u2019s knowledge or instructions. Early in the morning on 25 May 2011, R.V. had come to the applicant\u2019s office to discuss unrelated matters; he had not given him or left any money. The applicant had then left his office unlocked and went on some business elsewhere in the military unit\u2019s compound. At some point police officers found him and brought him back to his office. There they asked him questions about the collection of money for the unit\u2019s celebration;","(iii)later, attesting witnesses had come to the office and in their presence the police discovered the marked banknotes, which the applicant had never seen or touched before, under some papers on his desk. The applicant believed that the minimal traces of the marking substance which had been discovered on his hand must have gotten there while he was talking to the investigators and touching documents on his desk prior to the arrival of the witnesses. The gauze pads used to swab the applicant\u2019s hands had been prepared using the scissors which lay on the desk where earlier the marked money had been laid out. This meant that the marking substance found on the swabs did not come from the applicant\u2019s hands but likely from the contaminated scissors or from other sources \u2013 this was further evidenced by the fact that the attesting witnesses\u2019 hands had likewise been contaminated.","13.Throughout the proceedings, including in his subsequent appeals (see paragraph 18 below) the applicant raised the following issues:","(i)he had been improperly denied access to a lawyer on 25 May 2011;","(ii)his statements as to the origin of the marked cash found on his desk had been recorded in the scene examination report even though he had not been advised of his rights and his lawyer had been denied access to him at the time;","(iii)the restriction on his defence rights had also contributed to swabs from his hands having been collected in a way that compromised the result (see paragraphs 6 (iv) and 12 (iii) above);","(iv)in general the evidence collected in his office was inadmissible since it had been collected prior to the institution of criminal proceedings (see the relevant legislative provisions in paragraph 23 below).","14.At the trial Soldier O.V. gave the account of events as described in paragraph 5 above. In particular, he testified that his wife had been pregnant, and he had applied for the allowance to help with the cost of living but had initially been refused. Then the applicant had offered to help him get the allowance in exchange for a contribution to the unit\u2019s anniversary celebration and had threatened him that he would have problems in his service record unless he paid. At some point in time, the applicant had told him that the money was no longer needed but then Major R.V. told him that in fact the applicant was continuing to demand the money. O.V. had then complained to the SBU and had given the marked money to R.V.","15.Major R.V. confirmed O.V.\u2019s account and testified that the applicant had asked him to initiate disciplinary proceedings against O.V. for failure to meet physical fitness goals. R.V. had voiced surprise, given that O.V. was in the process of discharge from the army anyway. The applicant had explained that the real reason was that O.V. failed to pay the sum of UAH800 he had promised and asked R.V. to tell O.V. that unless he paid he would have problems in his service record. After hearing that message, on 25 May 2011 O.V. had paid up the sum and, taking the money, R.V. brought it (hidden in a notepad) to the applicant\u2019s office and put the money on the applicant\u2019s desk. Having seen the money and understood what it was for, the applicant had covered it with some papers.","16.In the course of the trial the exact sequence of events in the applicant\u2019s office was examined in considerable detail with the attesting witnesses and the investigator (who had drawn up the scene examination report) being cross-examined by the defence.","One of the attesting witnesses testified that he had observed how money marked by fluorescent substance with the word \u201cbribe\u201d had been discovered on the applicant\u2019s desk. The applicant had two very small spots of the same fluorescent substance on his hand. However, on that occasion it was discovered that the witness\u2019s own hands had even larger traces of the fluorescent substance. The witness also stated that the scissors used to prepare gauze pads to be used for swabbing the applicant\u2019s hands had been taken from the applicant\u2019s desk, and that before swabbing the pads had not been lit up by ultraviolet light.","The investigator who had conducted the scene examination stated, by contrast, that the gauze pads had not been cut up by the scissors found on the applicant\u2019s desk but taken from sealed manufacturer\u2019s packaging.","17.On 20 December 2011 the Shepetivka Court convicted the applicant of bribery and sentenced him to a fine of UAH 8,500 (about EUR 800) and a two-year ban on occupying managerial positions. The trial court:","(i)relied on the above-mentioned evidence, including the testimonies of O.V., R.V. and the attesting witnesses, the scene examination report, the results of confrontations between the applicant, O.V. and R.V. (in the course of which they had confirmed their incriminating statements), a forensic examination report (showing that the same marking substance had been discovered on the marked banknotes and on swabs from the applicant\u2019s hands), and evidence from the military unit\u2019s records to the effect that O.V.\u2019s application for the allowance had not been properly registered. The latter element was, for the trial court, proof showing that the applicant had personally collected O.V.\u2019s application and presented it to the commanding officer;","(ii)concerning the scene examination report in particular, the court made reference to the applicant\u2019s statement that \u201cthe money could have been put on his desk by R.V. or in fact by anyone since the office had been unlocked\u201d (see paragraph 6 (i) above);","(iii)in discussing the evidence of the attesting witnesses who had observed the marking of the banknotes and their discovery in the applicant\u2019s office, the court noted one witness statement to the effect that the witness had traces of the marking substance on his hands similar to the very little traces on the applicant\u2019s hand (see paragraph 16 above);","(iv)the trial court did not contest that the sum of UAH 800 given to the applicant had been intended for the unit\u2019s anniversary celebration but considered that under the relevant criminal law provision that fact did not exclude criminal liability for bribery. It was in the applicant\u2019s interest to organise a celebration and, the contributions from others being insufficient, he had unduly pressured O.V. to make a contribution.","18.In his appeals the applicant contested the assessment of the evidence by the trial court. He continued to raise the issues set out in paragraph13 above.","19.On 28 April 2012 the Kmelnytsk Regional Court of Appeal upheld the applicant\u2019s conviction. It stated that the trial court\u2019s findings had been supported by the evidence, partially re-examined by the Court of Appeal in the course of its hearings. The Court of Appeal referred in particular to Soldier O.V.\u2019s and Major R.V.\u2019s statements and the scene examination report (see paragraphs 6, 14 and 15 above). The denial of the applicant\u2019s lawyer\u2019s access to the military unit\u2019s premises had been lawful since matters of access to army installations had been within the exclusive competence of the military authorities. As to the procedure followed in taking of swabs from the applicant\u2019s hands, it had been done appropriately and the procedure used had not been open to criticism. The court finally held that it had been lawful to conduct the scene examination prior to the formal decision to institute criminal proceedings (see the relevant legislative provisions in paragraph 23 below).","20.On 14 February 2013 the High Specialised Court for Civil and Criminal Matters upheld the lower courts\u2019 decisions. It endorsed the Court of Appeal\u2019s findings."],"229":["1. The applicant, Mr Divine Umoru, is a Nigerian national who was born in 1994 and lives in Bologna. He was represented before the Court by Ms C. Brandalise and Ms A. Lauri, lawyers practising in Bologna.","2. The Government were represented by their Agent, Mr Lorenzo D \u2019 Ascia, and by Mr Federico Russo, Avvocati dello Stato.","The circumstances of the caseGeneral background","General background","General background","3. The applicant was born in Nigeria in 1994.","4. On 12 November 2003 he arrived in Italy following the issuance of a visa for family reunification.","5. On an unspecified date, his father returned to Nigeria and the applicant \u2019 s care was entrusted to his mother.","6. On 28 February 2005 the Bologna Juvenile Court assigned custody of the applicant to social services and ordered his placement in care.","7. He was placed in foster care in different institutions until he came of age.","8. From August 2017 to June 2018, the applicant was under the care of the Centre for Mental Health of the local health authority for pathological personality traits, depressive symptomatology and overall psychopathologic vulnerability, which made it necessary to support him through psychotherapeutical care.","9. Since February 2018, social services have been helping him find employment and during 2018 he did several orientation sessions and trainings as well as an internship.","10. In September 2018 he started living with his partner, an Italian national, whom he married in August 2019.","11. Since 26 July 2019, the applicant has again been under the care of the Centre for Mental Health of the local health authority, which supports him through pharmacological and psychotherapeutical care.","12. He claims that since his arrival in Italy, he has never visited Nigeria and that his mother has been legally residing in Italy for more than fifteen years.","Proceedings for criminal offences","(a) The applicant \u2019 s criminal record before 2016","13. On 28 July 2014 the applicant insulted a policeman and hit him on the hands. By a decision of 16 January 2015, the Bologna Court sentenced him to a fine of 25,000 euros (EUR) for insulting and behaving violently towards a police officer. The fine was suspended.","14. On 19 May 2016 the applicant was found carrying a knuckle duster without a justified reason. By a decision of 2 January 2017, the Bologna Court sentenced him to a fine of EUR 23,000 for carrying a potentially harmful object. The fine was suspended.","15. The applicant has been reported to the police repeatedly in relation to other acts allegedly committed from 10 February 2013 to 7 May 2016. As a result, criminal proceedings are currently pending against him for, inter alia, violence against others ( violenza privata ), destruction of property, interruption of public services, carrying potentially harmful arms or objects, theft and trespassing.","(b) The applicant \u2019 s conviction for attempting to produce explosive substances","16. On 2 August 2016 the applicant, who was accused of making threats and attempting to produce explosive substances with the aggravating circumstance of terrorism or subversion of the democratic order, was arrested and subsequently detained on remand.","17. On 12 April 2017 the Bologna Court convicted the applicant of making threats and attempting to produce explosive substances, but excluded the aggravating circumstance of terrorism or subversion of the democratic order.","18. The Bologna Court sentenced him to two years \u2019 imprisonment, a punishment close to the statutory minimum, and fined him EUR 8,000. It suspended application of the penalty and released the applicant from detention on remand, on the grounds that he was a first-time offender and an optimistic prediction could be made as to his future behaviour.","19. The applicant challenged the judgment of the Bologna Court of 12 April 2017 before the competent court of appeal, which upheld it in a judgment of 18 March 2019 which became final on 4 June 2019.","20. The court of appeal found that after his conviction, the applicant had demonstrated good behaviour. However, it rejected the applicant \u2019 s request for a more lenient sentence, taking into consideration the fact that before 2016 he had been reported to the police repeatedly for his participation in the political demonstrations of insurrectional anarchists.","The grant of humanitarian protection","21. On 12 April 2017 the applicant lodged a request for international protection, which the Territorial Commission in Bologna rejected on 4 May 2017.","22. The applicant challenged the decision of the Territorial Commission before the Bologna Court.","23. By a judgment of 14 July 2018, the Bologna Court upheld the decision of the Territorial Commission in so far as it rejected the applicant \u2019 s request for asylum, but declared him eligible for humanitarian protection. In particular, the court attached importance to the fact that the applicant had been residing in Italy since 2003 and had not been to Nigeria since he was eight years old. It considered that the applicant did not have any significant ties with his country of origin, as he only spoke sporadically on the telephone with his father, from whom the applicant felt culturally and emotionally distant.","24. The Bologna Court further found that the applicant had started to pursue a path of personal development to overcome his past of sexual abuse and marginalisation; the medical reports demonstrated his need for psychotherapeutical care, and returning to Nigeria would negatively impact his precarious mental balance.","25. With reference to his criminal record, the Bologna Court considered that (i) the applicant had been convicted at first instance in a judgment which suspended his detention; (ii) an appeal against that judgment was still pending; and (iii) any future assessment of the possible danger to public order and safety the applicant could pose had to be entrusted to criminal judges.","Expulsion proceedings","26. On 15 July 2019 the Ministry of the Interior notified the applicant of an expulsion order in his regard dated 12 July 2019. The reasoning, in so far as relevant, reads as follows:","\u201c... Having examined the documents of this office which show that [the applicant] is particularly active in the movement of insurrectional anarchists of Bologna and that, on 2 August 2016, he was arrested for the crime defined in section 1 of Law no. 895\/1967 with the aggravating circumstance of terrorism, having been found in possession of a large amount of explosive material;","Considering that information collected in the course of investigative activities shows that [the applicant] has offered material support to known anarchic extremists considered responsible for sending packages containing explosive devices to judges and civil servants, and has also offered to those extremists the possibility to use his home;","Considering that he has shown in different contexts that he poses a significant danger, as demonstrated by the fact that he was reported to the police repeatedly and arrested for crimes related to disturbances of public order and individual conduct such as criminal damage, aggravated burglary, violence against others [ violenza privata ], carrying potentially harmful arms or objects, interrupting a public service;","Considering that his presence on the Italian territory constitutes a threat to the security of the State and might facilitate, in various ways, terrorist organisations or activities;","Considering that the length of his stay in Italy, his age, his family and economic situation, his health condition, his level of social and cultural integration and the importance of his ties with Italy do not negate the need for the adoption of an expulsion order ...\u201d","27. On 15 July 2019, relying on the expulsion order of the Ministry of the Interior of 12 July 2019, the Bologna police authority ( questore ) issued a decree revoking the applicant \u2019 s residence permit and ordering that he be escorted to Milan Malpensa Airport to be deported.","Developments after the introduction of the application","28. On 16 July 2019 the applicant requested the Court to stay his expulsion under Rule 39 of the Rules of Court. The duty judge decided to indicate to the Government the stay of the expulsion for the duration of the proceedings before the Court and to submit questions to the Government.","29. On 23 July 2019 the Government replied to the questions and requested that the interim measure be lifted.","30. On 8 August 2019, on the basis of the information provided by the Government and the applicant, the duty judge decided to reject the Government \u2019 s request to lift the interim measure.","31. Following the application of Rule 39, the applicant challenged the expulsion order before the Lazio Regional Administrative Court (\u201cthe TAR Lazio\u201d).","32. By a decision of 10 September 2019, the TAR Lazio rejected the applicant \u2019 s request for interim measures.","33. By a judgment of 23 April 2021, it decided on the merits of the applicant \u2019 s claim and dismissed it.","34. In a letter of 30 April 2021 the applicant informed the Court that he intended to appeal against the judgment of the TAR Lazio to the Council of State.","Relevant domestic law","35. The expulsion order concerning the applicant was issued by the Minister of the Interior under Article 13 of Legislative Decree no. 286 of 25 July 1998, which regulates the administrative expulsion of foreigners, and Article 3 of Decree-Law no. 144 of 27 July 2005, converted with amendments into Law no. 155 of 31 July 2005, which sets forth rules on the expulsion of foreigners on the grounds of prevention of terrorism.","36. Under Article 13 of Legislative Decree no. 286, for reasons of public order or State security, the Minister of the Interior may order the expulsion of a foreigner by informing the President of the Council of Ministers and the Minister for Foreign Affairs in advance. The expulsion is to be ordered by means of a reasoned decree and is immediately enforceable. An appeal against it before the competent courts does not stay its execution.","37. Under Article 3 of Decree-Law no. 144, the Minister of the Interior may order the expulsion of a foreigner in respect of whom there are justified reasons to believe that his stay in the territory of the State could in some way facilitate the operation of terrorist organisations or terrorist activities, including international ones."],"230":["2.The applicant was born in 1991 and lives in Norway. Before the Court, he was represented by Mr K. Sorensen, a lawyer practising in Oslo.","3.The Norwegian Government (\u201cthe Government\u201d) were represented by Mr M. Emberland of the Attorney General\u2019s Office (Civil Matters) as their Agent, assisted by Ms H. Lund, attorney at the same office.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant is the father of Z, born in August 2010, and X, born in September 2011. B, a former partner of the applicant, is their mother.","6.When the applicant and B had Z in 2010, they were 19 and 17 years old, respectively. Upon a notification of concern from the midwife, they moved into a parent-child centre in preparation for the birth and stayed there for a short time after the birth.","7.Following the family\u2019s stay at the parent-child centre, two further notices of concern \u2013 from the parent-child centre and from a child health centre, respectively \u2013 were received by the child welfare services. An expert in psychology appointed by the child welfare services gave a report on 30December 2011 in which he recommended that the child welfare services should work towards a care order in respect of Z.","8.On 20 May 2011 the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker) issued a care order and decided that Z be placed in foster care. The Board found that Z had a greater care need than other children of a similar age in terms of cognitive, mental and physical stimulation. Furthermore, regarding the applicant\u2019s and B\u2019s ability to care for Z, the Board considered that neither parent had sufficient maturity or developed independence to be able to establish and manage an adult independent life, and that they relied on the help and aid of the applicant\u2019s family. Moreover, the Board found that the applicant and B did not have sufficient understanding, empathy or capacity to meet the child\u2019s needs for emotional contact and attachment. The applicant\u2019s and B\u2019s contact rights were set at three hours, six times per year.","9.In 2011, when B was pregnant with X, the child welfare services \u2013 in the light of the care order in respect of Z (see paragraph 8 above) \u2013 made efforts to intervene with assistance measures, but the applicant and B had refused contact with the child welfare services.","10.On the date of X\u2019s birth an emergency care order was issued, placing X in an emergency foster home. The decision referred mainly to the decision on the care order in respect of Z issued on 20 May 2011 (see paragraph 8 above). While they were at the hospital, X and his parents were together twice daily, under supervision. Three days later, X was placed in an emergency foster home and the applicant and B met X one hour every week.","11.The applicant and B contested the emergency care order and on 6October 2011, after having conducted an oral hearing the previous day, the County Social Welfare Board upheld it. The Board found that there were substantial shortcomings in the parents\u2019 ability to provide children with emotional care and furthermore that there was a substantial risk of major harm to X if he were returned to live with them. Regarding the applicant\u2019s and B\u2019s ability to care, in particular their lack of providing adequate emotional contact, the Board referenced the findings of the Board in the decision of 20 May 2011, relating to Z (see paragraph 8 above). Moreover, the Board pointed to findings in a medical report and, furthermore, to a regular health check-up during which it had been found that X had failed to seek eye contact with B. The Board considered this to be a clear symptom of a gravely lacking relation between mother and child.","12.The applicant and B appealed against the decision and, on 28November 2011, the District Court (tingrett) upheld it. The District Court found that the applicant\u2019s and B\u2019s ability to care had not improved since the account given in the expert report of 30 December 2010 and the Board\u2019s decision of 20 May 2011, concerning the care order in respect of Z (see paragraphs7-8 above). Furthermore, the District Court emphasised that the applicant and B had failed to establish emotional contact with X during the contact sessions that had been carried out. In addition, the parents had received training on how to hold the child and how in particular to support his neck, but had failed to get this right. Furthermore, the District Court assessed whether measures could be implemented to increase the parents\u2019 ability to provide care, but found that no such measures would be effective. Against this background, the District Court concluded that it had been substantiated that the parents would fail to provide X with the emotional and physical safety he was in need of. The contact rights were set at one hour once per week, under supervision.","13.On 13 January 2012 the Board issued a care order in respect of X. In its decision, the Board referred extensively to the decision of 20 May 2011 regarding Z (see paragraph 8 above), and found that the applicant\u2019s and B\u2019s ability to care had not improved since then. In addition, the Board considered their economy, the support received from the applicant\u2019s family, and the applicant\u2019s and B\u2019s lack of concern in respect of their ability to provide X with adequate care.","14.Regarding the contact sessions that had taken place, the Board referred to the account given by the supervisor appointed by the child welfare services, who had stated that both the applicant and B failed to achieve emotional contact with X, and that she at some instances had been concerned for X\u2019s safety, such as when X at one time almost fell down from the nursing table. Furthermore, the supervisor had stated that no progress with improving their ability to provide care had been made by the parents during the contact sessions. In addition, the supervisor had stated that no guidance had been provided to the applicant and B during the contact sessions, as the child welfare services had the impression that they were incapable of separating guidance from criticism.","15.Against the above background, the Board considered that the applicant and B did not manage to create emotional contact between themselves and X, and, furthermore, that they failed to meet the child\u2019s need for physical security. In the light of the measures taken in order to improve their ability to provide Z with care, the Board found that implementation of further assistance measures would not serve to improve the applicant\u2019s and B\u2019s ability to care for X.","16.Turning to the question of contact rights, the Board held that X, as he had been placed in a foster home immediately after his birth, had no established relation to his parents. Moreover, in the light of the grounds which gave reasons for the care order, the Board considered that the placement in foster care would be long-term. The purpose of contact sessions in the instant case would thus not be to prepare for a quick reunion of the family, but to ensure that X had knowledge of his biological parents. The child welfare services had pleaded before the Board that they envisioned that they with time would institute adoption proceedings, and that X\u2019s parents should therefore not be informed of the foster home\u2019s address. However, the Board did not find a decision not to disclose the foster parents\u2019 address necessary, and noted in that respect, among other things, that X\u2019s foster mother was in any event present at the contact sessions. Contact rights for the applicant and B in respect of X were ultimately set at one hour four times per year, under supervision.","17.The applicant and B appealed against the Board\u2019s decision, and the District Court held a hearing on 16 and 17 April 2012. The District Court\u2019s bench was composed of one professional judge, one psychologist and one lay person. The applicant and B were both present with legal aid counsel and gave testimony and adduced other pieces of evidence.","18.On 7 May 2012 the District Court gave judgment in which it upheld the Board\u2019s decision. The District Court found that the applicant\u2019s and B\u2019s personal capacity to care for children had not changed since the assessments carried out by the authorities when deciding on the emergency care order on 28November 2011 and the care order on 13 January 2012 (see paragraphs12 and 13 above), and accordingly concurred with the assessments reflected in those decisions. Furthermore, the District Court referred to assessments made by a psychologist in relation to the parents\u2019 stay at the parent-child centre when their caring skills in respect of Z had been assessed (see paragraphs 6-7 above) and a psychologist who had been appointed by the courts as an expert to assist in the proceedings in 2011 (see paragraph8 above). The District Court found that the two psychologists, independently of each other, had described the same shortcomings in the applicant\u2019s and B\u2019s ability to provide care for a small child.","19.In the light of the above, the District Court deemed that neither parent had sufficiently mastered to establish contact with Z or seeing her needs after she was born. They had spoken disparagingly to her when they were displeased with her, and they had given up quickly when they had not managed to make her do what they had wanted. B had also appeared not to be particularly interested in guidance with regard to how she should relate to her child. The applicant had initially been a little more responsive in this regard, but had eventually reacted negatively when given repeated advice on how care should be provided. The District Court stated that the flaws pointed out by the two psychologists with regard to the applicant\u2019s and B\u2019s ability to care for their child were related to traits that were fundamental to providing a child with proper care.","20.The District Court further stated that neither the applicant nor B had applied for or in any other way received any aid or support which could contribute to make them qualified as care givers, and that this clearly showed that neither of them had comprehended that they were in need of support and assistance to improve their ability to provide a child with care.","21.Furthermore, the District Court examined the situations for the applicant and B, who were no longer in a relationship. As to the applicant, the District Court observed that he was unemployed, but had applied to a high school. He rented a small flat in his grandfather\u2019s house and did at times not get out of bed during the day.","22.In the District Court\u2019s view, the shortcomings in the applicant\u2019s and B\u2019s ability to care were so substantial that they could not be remedied through assistance measures. B had clearly shown that she did not understand that assistance was necessary or that she would herself have to be active in creating an acceptable caring situation. As to the applicant, the District Court noted that he had acknowledged that he, owing to his situation at the time, was unable to take care of X, but stated that he also lacked more fundamental necessary conditions for having the care of a child.","23.With regard to contact rights, the District Court took note that X had never lived with his parents, and thus not established any relationship with them. It furthermore found that the care order and placement in a foster home were likely to be long-term. It was therefore important for X to develop an affiliation to and safety in the foster home, and this process should not be disturbed by too extensive contact sessions. The purpose of contact sessions would be to provide X with knowledge of his biological parents. Against this background, the contact rights for the applicant and B were set at two hours, four times per year, if they came to contact sessions together, or two hours, twice per year, if they came alone. The child welfare services were authorised to supervise the sessions.","24.On 25 June 2012 the High Court (lagmannsrett) refused the applicant leave to appeal against the judgment. The applicant did not appeal against the High Court\u2019s decision to the Supreme Court (H\u00f8yesterett).","25.On 31 January 2014 the applicant and B made an in-court settlement on the custody of X and Z. According to the settlement, the applicant was to have sole custody of both children. The settlement had the effect that the applicant alone was in a legal position to apply for the care orders to be lifted, which he did on 21 August 2014. He withdrew however the application on 8 October 2014, and by way of counsel stated in that connection that he was not at the time able to give the children the material care that he thought they deserved.","26.On 12 May 2016 the child welfare services applied to the County Social Welfare Board for a decision to withdraw the applicant\u2019s and B\u2019s parental responsibilities in respect of X and allow X\u2019s his foster parents to adopt him. X was at that time four years and eight months old, and had lived with his foster parents since the initial emergency care order had been implemented immediately after his birth (see paragraph 10 above). The applicant and B opposed the application.","27.The Board held a meeting on 25 and 26 August 2016. The bench of the Board was composed of one jurist, one psychologist and one lay person. The applicant and B were both present together with legal-aid counsel and gave evidence.","28.On 8 September 2016 the Board decided to withdraw the applicant\u2019s and B\u2019s parental responsibilities in respect of X and to authorise that X be adopted. In its decision, the Board assessed whether the care order would in the alternative be permanent, and found that the attachment which X had formed with his foster parents entailed that a reunion of X and his biological parents was unrealistic, both in a short and a long-term-perspective. In particular, the Board held that such a reunion would highly likely cause serious problems for the child.","29.Furthermore, the Board assessed the applicant\u2019s and B\u2019s caring skills and found that they had not improved since the care order had been issued. The Board referenced the findings in the proceedings on the care order with regard to the applicant\u2019s and B\u2019s intuitive ability to establish emotional contact with the child, and held that those findings still clearly applied. Moreover, the Board assessed the applicant\u2019s life situation and found that there had been few changes in that respect. It noted that the applicant had not completed high school, did not have a job, subsided on public social support schemes, and resided at his parents\u2019 house. The Board also noted that the applicant considered the contact sessions as exhausting, and that he often could not manage to participate in them throughout the two hours set. Against this background, the Board found that the applicant could not in the foreseeable future establish himself as care giver for X.","30.In examining the best interests of the child, the Board stated that general factors such as stability and belonging, which adoption would provide for a child, indicated that adoption should be approved. In X\u2019s case, his attachment to the foster home, his marked need for stability and foreseeability, and his present and presumably future lack of attachment to his natural parents made his interests in adoption very considerable. Weighed against the minor interests that the Board deemed the applicant and B to hold, notably in the limited contact rights, the Board found that the parents\u2019 interests had to yield.","31.The applicant and B brought the Board\u2019s decision before the District Court for review. The applicant requested that the District Court appoint an expert. However, the request was refused in a reasoned decision, which was upheld on appeal by the High Court on 4 January 2017. The High Court noted, among other things, that there already existed a report which, though it dated from 2010, was still relevant.","32.The District Court held a hearing on 24 and 25 January 2017. The bench of the District Court was composed of one professional judge, one psychologist and one lay person. Both the applicant and B were present, represented by legal aid counsel, and gave testimony. There were five witnesses, and relevant documents were presented to the court.","33.In its judgment of 15 February 2017 the District Court upheld the Board\u2019s decision. In its reasoning, it first assessed the applicant\u2019s ability to provide X with care (as the applicant and B had entered into an agreement after the dissolution of their relationship that the applicant should have the custody for X (see paragraphs 21 and 25 above), B\u2019s caring skills were no longer under examination), and found that the applicant\u2019s situation had not become significantly better since 2010-2012 (see paragraphs 6-24 above). It considered that the applicant still struggled with creating an independent adult life and had not managed to benefit from the support measures which had been implemented, which were several courses conducted by the welfare services (NAV), vocational training program with the intent to help the applicant establish structure and routines, and psychological treatment and support, however with limited effect. Against this background, the District Court held it to be unlikely that the applicant in the foreseeable future would be able to provide X with the necessary care. Furthermore, the District Court held that the emotional attachment X had formed with his foster parents would hinder a reunion of X and the applicant, as severing this attachment would with a high degree of likelihood entail serious problems for the child.","34.The District Court went on to assess the best interests of the child. In that assessment, it took as its starting point that X would remain in the foster home until eighteen years old. Furthermore, the District Court assessed the caring skills of the foster parents and the needs of X.","35.The District Court found X to have normal maturity for his age, with no particular health challenges. However, he had some difficulties regulating his emotions and behaviour when faced with resistance and unpredictability, and quickly tired in stressful situations. The District Court found in particular that X was a vulnerable child, and noted that he had been granted extensive support measures by a special needs teacher. The District Court held that meeting X\u2019s needs was a demanding task for the care giver, and that a failure to provide adequate care would put X at a high risk of developing symptom behaviour. Which kinds of symptoms he could develop were held to be hard to predict at an early stage. The District Court were of the view that such challenges should be particularly emphasised as they were important for the assessment of the child\u2019s best interests, in particular if contact sessions failed to meet X\u2019s complex emotional needs.","36.Moreover, the District Court referred to the foster mother\u2019s statements to the effect that she had not noticed any visible reactions from X after the contact sessions, but that she believed contact sessions in a long term perspective would be unfortunate as X would to an increasing extent understand that his natural parents lacked interest in him.","37.Regarding X\u2019s emotional attachment to the applicant and B as his biological parents, the District Court found that X had no emotional ties to them; he did not ask about them and was not curious about his origins. It took his age into account in this respect.","38.On the topic of X\u2019s best interests, the District Court stated that formalising his ties to the foster home was important in the light of his need for security and predictability. If not adopted, one could also not rule out future applications for the care order to be lifted or conflicts in relation to contact rights. Moreover, the District Court rested assured that the foster mother would be open to X contacting his biological parents if he so wished, and accordingly considered that adoption would not entail a final abruption of the ties between him and his biological parents. Lastly, the District Court assessed the relationship between X and his sister Z, who also was placed in a foster home but who enjoyed regular contact with the applicant and B. The District Court found it likely that the foster mother would inform X about this matter in a manner which would not cause stress for X.","39.On 7 April 2017 the High Court, in a reasoned decision, refused the applicant and B leave to appeal against the District Court\u2019s judgment, holding in particular that the assessments made by the District Court had been very thorough and that the District Court\u2019s application of the law, including its balancing of the best interests of the child, had been correct. Furthermore, the High Court found no procedural errors or any flaws in the conclusion of the District Court.","40.On 6 June 2017 the Supreme Court dismissed the applicant\u2019s and B\u2019s appeals against the High Court\u2019s decision."],"231":["2.The applicant was born in 1958 and lives in Tbilisi. She was represented by three Georgian lawyers \u2013 MsM. Kurtanidze, Ms B. Pataraia and Ms S. Gogishvili \u2013 and two British lawyers \u2013 Mr Ph. Leach and MsJ.Gavron.","3.The Government were represented by their Agent, MrB.Dzamashvili, of the Ministry of Justice.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant\u2019s daughter, M.T., was born on 14 February 1981. In August 2013 she and L.M., without having their marriage officially registered, moved into a flat together in Rustavi, sharing with L.M.\u2019s parents. M.T.\u2019s daughter from her previous marriage was six years old at the time.","6.The couple started having arguments shortly after moving in together, as it appeared that L.M. suffered from pathological jealousy.","7.On 29 April 2014 L.M.\u2019s father called the police because his son was abusing M.T. The police went to the flat and drew up a report stating that L.M. was heavily intoxicated and had threatened to kill the applicant out of jealousy. L.M.\u2019s parents told the police officers that their son suffered from pathological jealousy and was otherwise mentally unstable, becoming particularly aggressive while drunk. The father further stated that his son\u2019s violent behaviour and death threats against their daughter-in-law were frightening and difficult to cope with, and that he wanted the police to make L.M. leave the property. The report also stated that, M.T., fearing for her life, had also asked the police to take all the measures necessary to prevent her partner from behaving in a similar way again. A criminal investigation was never opened into the matter, and no restrictive measures were issued in respect of L.M.","8.On 22 September 2014 M.T. called the police to say that L.M. had verbally and physically abused her. A police officer arrived at the scene and drew up a report indicating that M.T. had been physically assaulted by her partner, in an act classified as criminal battery, as a result of which she had called an ambulance and received medical assistance. The report also noted that she had been subjected to systematic verbal abuse and threats. L.M.\u2019s mother confirmed her son\u2019s abusive behaviour. The police officer then questioned L.M., who acknowledged that he was a jealous person and had indeed made death threats against M.T. multiple times. He assured the officer that he would never harm M.T. because he loved her and cared about their life as a couple. He promised that he would never assault his wife again. During the interview with the officer, L.M. also stated that he had previously been convicted of robbery and unlawful possession of drugs.","9.On the same date M.T. was interviewed by an investigator from the criminal police unit. After the interview, the investigator issued a report which reclassified L.M.\u2019s beating of M.T. as a less serious \u201cshove\u201d, adding that \u201cM.T. state[d] that she [did] not need any kind of medical treatment\u201d. The police officer advised the applicant\u2019s daughter that it was not possible to arrest her partner or to request any other restrictive measure given the \u201cminor\u201d nature of the \u201cfamily altercation\u201d. An investigation was never opened into the matter.","10.On 23 September 2014 M.T., traumatised by the previous day\u2019s incident, left L.M. and moved in with her mother in Tbilisi. Following her departure, L.M. started sending her telephone messages containing various threats, including the following: \u201cI can easily make you disappear\u201d, \u201cI\u2019m going to commit suicide, I can\u2019t live without you\u201d and \u201cNo one can stop me, I\u2019m not afraid of the police\u201d. He also made death threats against M.T.\u2019s young daughter.","11.On 26 September 2014 M.T. reported to the police that L.M. had been threatening to kill her. A police officer\u2019s report of that day states that M.T. submitted that she had been receiving insulting messages and threats from L.M. (including those described in the previous paragraph) and that she wanted the police to help her end the aggression once and for all. The police officer advised M.T. that no restrictive measures could be taken in respect of her partner because his violent conduct had not been witnessed by the police.","12.On 27 September 2014 M.T. filed a criminal complaint against L.M. for further threats against her and her daughter. In particular, she reported that the previous evening L.M. had tried to break into her and her mother\u2019s flat. As the women had managed to block the front door, he had tried to smash the door open, threatening to set fire to M.T.\u2019s car and kill the applicant, her daughter and her granddaughter. As a result, L.M. was summoned and interviewed by the criminal police. According to the interview record, L.M. stated that he simply wanted to get back together with M.T, whom he loved deeply. The investigator from the criminal police then reclassified the reported death threats as verbal abuse and pleas to return to life as a couple. A criminal investigation was never opened, but a formal warning was issued against L.M. not to engage in any kind of dispute with M.T. or risk facing the full force of the law.","13.On 28 September 2014, when M.T. was returning home, she was accosted by L.M. at the entrance to her block of flats. Having managed to escape and reach her flat safely, she immediately called the police. A report drawn up by a police officer that day stated that for the three previous days M.T. had been receiving text messages on her mobile telephone containing death threats from her partner, about which she had already lodged a complaint with the criminal police. The officer explained that the police could not arrest L.M. for just making threats, in the absence of a physical assault. According to the applicant\u2019s recollection of the incident, the officer suggested, as an alternative solution, that M.T. tell her brothers about the violence she had been subjected to so that they could take revenge on L.M. by \u201cbreaking his bones\u201d.","14.Between late September and mid-October 2014 the applicant went to the Didube-Chughureti district police station in Tbilisi three times to report that L.M. had been stalking and threatening her daughter every day, urging the police to protect the latter. She also reported how he had once gone to her daughter\u2019s workplace with a hand grenade and threatened to detonate it. The police did not take any action.","15.On 15 October 2014 M.T. called the police and stated that L.M. had been at her place of work \u2013 she was an English language professor at a university \u2013 looking for her. She stated that she was extremely scared of him. A police officer went to see her and took a statement. No further steps were taken by the police, with the police officer reiterating the explanation that an aggressor had to be caught \u201cred-handed\u201d before being arrested or any other restrictive measure could be applied. M.T. urged the security guards of the university to never let L.M. into the building again.","16.On 16 October 2014 M.T. called the police and told them that when she had been driving to her daughter\u2019s school, she had been followed by L.M., who had tried to stop her and had almost crashed into her car with his car. A report drawn up by the police officer at the scene stated that M.T. submitted that she had been disturbed by her ex-partner, who had shown up at her workplace, engineered encounters with her in the street and interfered with her freedom of movement. The report ended with an explanation addressed to M.T. \u201cto call the police the very moment he approach[ed] and verbally insult[ed] her or if he [made] a threat.\u201d No further steps were taken by the police.","17.On the same day the applicant went to the police herself to report that her and her daughter\u2019s lives had become unbearable as L.M. had been terrorising them on a daily basis. The applicant indicated in her statements that she knew that her daughter, genuinely concerned for her life and safety, had been carrying defence pepper spray and a taser with her at all times. The applicant pleaded for State protection. Without resorting to a restraining order or any other restrictive measures against L.M., the police officers limited themselves to drawing up a new report, recording the applicant\u2019s statements.","18.According to the various records and reports drawn up by the police officers in relation to the incidents of domestic violence described above (see paragraphs 7-17 above), neither the applicant nor her daughter were ever advised of their procedural rights or the legislative and administrative measures of protection available to them under the Criminal Code and the Domestic Violence Act (see paragraphs 29-34 below).","19.On 17 October 2014 L.M. went to M.T.\u2019s workplace and asked her to come out of the classroom where she was holding a lesson for students so that he could talk to her. When she entered the corridor, he shot her dead with a gun. Immediately afterwards he turned the gun on himself and committed suicide.","20.On 17 October 2014 an investigation was opened into the double homicide and unlawful possession of a firearm by L.M. Domestic violence was added to the file as the motive a few days later. On 31 December 2014 the investigation was discontinued as the person liable for the crime was deceased.","21.On 8 April 2015 the applicant filed a criminal complaint with the district public prosecutor\u2019s office, requesting that an investigation be opened against the police officers dealing with her daughter\u2019s domestic violence allegations case for negligence. As no reply was received, she reiterated the same complaint, further specifying that the inactivity of the police officers in question could also be considered gender-based discrimination. She lodged her complaint on at least four occasions between 5 August and 22December 2015 for the attention of either the Chief Public Prosecutor\u2019s Office, the authority competent to launch criminal inquiries against police officers, or the General Inspectorate of the Ministry of the Interior (\u201cthe MIA\u201d), the unit in charge of disciplinary supervision of those working for the Ministry.","22.While the prosecution authority left all the applicant\u2019s complaints unanswered, the MIA replied to her on 18 January 2016, stating they had no general jurisdiction to open an investigation into a crime allegedly committed by its officials without the consent of the Chief Public Prosecutor of Georgia.","23.On 21 September 2016 the applicant\u2019s representative again contacted the Chief Public Prosecutor\u2019s Office with a request for a criminal investigation to be launched against the police officers. She submitted that notwithstanding the number of occasions on which the applicant\u2019s daughter had reported the physical violence and death threats against her to the police, they had failed to ascertain the high likelihood of danger and to open an investigation, inaction which had resulted in her murder. Furthermore, she emphasised that she considered the latter to be an indication of gender\u2011based discrimination. No reply was received.","24.On 11 April 2017 the applicant enquired with the Chief Public Prosecutor\u2019s Office whether it had received her previous letters and complaints and as to the reasons for its lack of response. By a letter of 5May 2017, it confirmed that it had duly received all her previous correspondence, but did not provide any responses to her earlier complaints."],"232":["2.The applicants were represented by lawyers whose names are listed in the appended table.","3.The Government were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr A. Fedorov.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.At the material time the applicant was working as a road police officer in the Syktyvkar Town Interior Department. His duties included ensuring the security of road traffic, as well as maintaining public order and fighting crimes relating to road traffic. There were no restrictions on grounds of sex for holding that post.","6.On 13 July 2008 the applicant\u2019s wife gave birth to a son.","7.For financial reasons, given that the applicant\u2019s wife had a higher salary than him, they decided that it was for the applicant to take parental leave as from April 2009.","8.On 22 April 2009 the applicant asked his superior for parental leave until 13January 2010. His request was refused because parental leave could be granted to a policeman only if his children were left without maternal care.","9.The applicant challenged the refusal before the Syktyvkar Town Court, claiming that he was entitled to parental leave.","10.On 6 July 2009 the Syktyvkar Town Court dismissed the applicant\u2019s claim. It held that service in the police was a special type of public service which ensured the protection of the public safety and public order, and it was therefore performed in the public interest. Persons engaged in such service exercised constitutionally important functions and therefore held a special legal status. Consequently, the imposition by the Federal legislature, under its discretionary powers, of limitations on the rights and freedoms of persons serving in the police was not in itself incompatible with the Constitution. In signing a police service contract the applicant had voluntarily chosen a professional activity which entailed, firstly, limitations on his civil rights and freedoms inherent in that type of public service, and, secondly, the performance of duties to ensure the protection of public safety and order. Accordingly, the applicant had undertaken to abide by the statutory requirements limiting his rights and freedoms and imposing on him special public obligations.","11.Relying on section 54 of Regulation no. 4202-1 (see paragraph 58 below), the Town Court further found that, unlike policewomen, policemen were entitled to parental leave only where they had to bring up children left without maternal care, that is to say in the event of the mother\u2019s death, withdrawal of parental authority, lengthy illness or other situations where the children lacked maternal care. That restriction was based, firstly, on the special legal status of the police, and, secondly, on the constitutionally important aims justifying limitations on human rights and freedoms in connection with the necessity to create appropriate conditions for the police to efficiently fulfil their duty to protect public safety and order. Owing to the specific demands of the police service, the non\u2011performance of duties by personnel had to be excluded because it was liable to harm the public interests protected by law. The restrictions on the right of male personnel to take parental leave could therefore not be regarded as a breach of their constitutional rights or freedoms, including their right to take care of and raise children. By granting, on an exceptional basis, the right to parental leave to female personnel, the legislature took into account the special social role of women associated with motherhood. Therefore, the refusal to grant parental leave to the applicant did not breach the principles of equality of human rights and freedoms or equality of rights of men and women.","12.On 10 August 2009 the Supreme Court of the Komi Republic upheld the judgment on appeal, finding it lawful, well-reasoned and justified.","13.In the meantime, on 2 July 2009 the applicant had stopped coming to his place of work. On 24 August 2009 he was dismissed from his post.","14.The applicant challenged his dismissal before the Syktyvkar Town Court, claiming, in particular, that he had stopped coming to work because he considered that he was entitled to parental leave.","15.On 26 February 2010 the Syktyvkar Town Court dismissed his claim. Relying on the judgment of 6 July 2009, as upheld on appeal on 10August 2009, the court reiterated that the applicant was not entitled to parental leave. His dismissal for systematic absence from his place of work had been therefore a lawful disciplinary measure.","16.On 8 April 2010 the Supreme Court of the Komi Republic upheld the judgment on appeal, finding it lawful, well-reasoned and justified.","17.At the material time the applicant was working as a tax police officer in the Sverdlovsk Regional Interior Department. His duties included prevention, detection and suppression of tax offences and participation in tax inspections. There were no restrictions on grounds of sex for holding that post.","18.On 25 March 2009 the applicant\u2019s wife gave birth to a son.","19.On 25 March 2010 the applicant was examined by a police medical panel. On 7 May 2010 he was informed that the medical panel had found him inept for police service and that he would soon be dismissed.","20.On 29 June 2010 the applicant asked his superior for parental leave until his son reached the age of eighteen months.","21.On 9 July 2010 the applicant was dismissed from his post for health reasons. He was informed of that decision on 12 July 2009.","22.On 7 August 2010 the applicant\u2019s request for parental leave was rejected with reference to section 54 of Regulation no. 4202-1 (see paragraph58 below) because his child had not been left without maternal care. It was also noted that he had in any case been dismissed from the police service.","23.The applicant appealed to the Verkh-Istetskiy District Court against the denial of parental leave and his dismissal.","24.On 8 September 2010 the Verkh-Istetskiy District Court rejected his claims. Relying on section 54 of Regulation no. 4202-1, it found that, in contrast to policewomen, policemen were entitled to parental leave only where they had to bring up children left without maternal care. The applicant\u2019s son was not left without maternal care as his mother had resumed work for financial reasons. The District Court also found that the applicant\u2019s dismissal from his post had been lawful because his state of health was incompatible with police service.","25.On 18 November 2010 the Sverdlovsk Regional Court upheld the judgment on appeal, finding that it had been lawful, well-reasoned and justified.","26.At the material time the applicant was working as an auditor in the internal audit unit of the St Petersburg Interior Department. He held the rank of lieutenant colonel. His duties included performing documentary audit inspections of interior departments and suggesting corrections for any breaches detected. There were no restrictions on grounds of sex for holding that post.","27.On 22 November 2009 the applicant\u2019s wife gave birth to a son.","28.On 11 June 2010 the applicant\u2019s wife was diagnosed with acute postnatal rheumatoid arthritis. She was prescribed a lengthy treatment and restrictions on physical activity.","29.On 29 June 2010 the applicant asked his superior for parental leave until his son\u2019s third birthday because his wife was unable to take care of him for medical reasons. His request was rejected with reference to section54 of Regulation no. 4202-1 and on the grounds of lack of medical documents confirming that it was \u201ctotally impossible\u201d for the child\u2019s mother to take care of him.","30.On 10 August 2010 a doctor recommended that the applicant\u2019s wife should not lift any objects exceeding 5 kg.","31.On 14 September 2010 the applicant again asked his superior for parental leave, referring to his wife\u2019s health problems.","32.By letters of 24 and 28 September 2010 the Human Resources Department of the St Petersburg Interior Department rejected his request, noting that the applicant\u2019s wife had been \u201cadvised\u201d not to lift objects exceeding 5 kg rather than \u201cformally prohibited\u201d from doing so. There was therefore no evidence that it was \u201ctotally impossible\u201d for her to take care of the child and that the child was deprived of maternal care.","33.The applicant challenged the refusals before the Smolnenskiy District Court of St Petersburg. He complained, in particular, of discrimination on grounds of sex.","34.On 14 December 2010 the Smolnenskiy District Court rejected the applicant\u2019s claims. Relying on section 54 of Regulation no. 4202-1, the court found that, in contrast to policewomen, policemen were entitled to parental leave only where they had to bring up children left without maternal care, that is to say in the event of the mother\u2019s death, withdrawal of parental authority, lengthy illness or other situation where the children lacked maternal care. Relying on the Constitutional Court\u2019s Ruling No.566\u2011O-O (see paragraph 59 below), the District Court held that that provision was compatible with the Constitution. It was therefore incumbent on the applicant to prove that his child had no maternal care. The medical documents submitted by the applicant did not prove that his wife was incapable of taking care of their son. She was not in hospital, nor was she disabled. There was therefore no evidence that the child was without maternal care. Accordingly, the denial of parental leave had been lawful and justified.","35.On 21 February 2011 the St Petersburg City Court upheld the judgment on appeal.","36.Meanwhile, on 17 November 2010 the applicant was dismissed from his post for systematic absence from work. He challenged his dismissal before the Smolninskiy District Court, claiming, in particular, that he had stopped coming to work because he considered that he was entitled to parental leave.","37.On 16 May 2011 the Smolnenskiy District Court rejected his claims. Relying on the judgment of 14 December 2010, as upheld on appeal on 21February 2011, the court reiterated that the applicant was not entitled to parental leave. His dismissal for systematic absence from his place of work had been therefore a lawful disciplinary measure.","38.On 18 July 2011 the St Petersburg City Court upheld the judgment on appeal, finding that it had been lawful, well-reasoned and justified.","39.At the material time the applicant was working as a tax police officer in the Novgorod Regional Interior Department. His duties included prevention, detection, suppression and investigation of tax offences. There were no restrictions on grounds of sex for holding that post.","40.On 27 May 2010 the applicant\u2019s wife gave birth to a son.","41.On 23 December 2010 the applicant\u2019s wife was diagnosed with postnatal varicose veins of the lower limbs. Her doctor advised her not to lift any objects exceeding 5 kg.","42.On 31 December 2010 the applicant asked his superior for parental leave until 27 November 2011. His request was rejected with reference to section 54 of Regulation no. 4202-1.","43.On 1 February 2011 the applicant stopped coming to his place of work because he considered that he was entitled to parental leave.","44.In reply to the applicant\u2019s complaint, the Novgorod Regional Prosecutor\u2019s Office found, on 19 May 2011, that the refusal of parental leave had been lawful because there was no evidence that the applicant\u2019s wife could not take care of the child.","45.On 31 May 2011 the applicant was dismissed from his post for systematic absence from work.","46.The applicant lodged a civil claim before the Novgorodskiy District Court against the Novgorod Regional Interior Department, challenging the refusal to grant parental leave. He claimed, in particular, that his wife could not take care of their child for health reasons, and enclosed his wife\u2019s medical documents. He also challenged his dismissal from post and requested monthly child-care allowances arrears.","47.On 23 August 2011 the applicant objected to the participation in the proceedings of the representative of the Novgorod Regional Prosecutor\u2019s Office. He submitted that the Novgorod Regional Prosecutor\u2019s Office had already stated its position on the issue in the letter of 19 May 2011 and was therefore biased. Relying on the Court\u2019s judgment in the case of Menchinskaya v. Russia (no. 42454\/02, 15 January 2009), he also complained that the prosecutor\u2019s participation in the proceedings violated the principle of equality of arms guaranteed by Article 6 \u00a7 1 of the Convention. The applicant\u2019s objection was dismissed.","48.The Novgorodskiy District Court heard the applicant, his counsel and the representative of the Novgorod Regional Interior Department. The prosecutor also attended the hearing and expressed her position that the applicant\u2019s claims should be rejected.","49.On 14 October 2011 the Novgorodskiy District Court rejected the applicant\u2019s claims. Relying on section 54 of Regulation no. 4202-1 and on the Constitutional Court\u2019s Ruling No. 566-O-O (see paragraph 59 below), the District Court held that the refusal to grant parental leave to the applicant had been lawful and had not amounted to discrimination on grounds of sex. His dismissal for systematic absences from his place of work had been a lawful disciplinary measure.","50.The applicant appealed. He complained of discrimination on grounds of sex. He submitted, in particular, that equivalent posts in his unit were held by policewomen who were entitled to parental leave. He also complained that the public prosecutor\u2019s intervention in support of the respondent\u2019s position had violated his rights under Article 6 \u00a7 1 of the Convention. Lastly, the applicant objected to the participation of a prosecutor in the appeal hearing.","51.The Novgorod Regional Court heard the applicant, his counsel and the representative of the Novgorod Regional Interior Department. It also heard the prosecutor, who argued that the applicant\u2019s appeal was to be dismissed.","52.On 7 December 2011 the Novgorod Regional Court upheld the judgment of 14 October 2011 on appeal, finding that it had been lawful, well-reasoned and justified. It found that the applicant had not submitted any evidence that his wife was unable to take care of the child. The applicant and his wife, who had resumed her work, lived and brought up their child together. It followed that the applicant\u2019s child was not left without maternal care. The Regional Court further held that the prosecutor had lawfully participated in the proceedings in accordance with Article 45 \u00a73 of the Code of Civil Procedure (see paragraph 62 below).","53.On 9 July 2012 a judge of the Supreme Court of the Russian Federation refused to refer the applicant\u2019s cassation appeal to the Civil Chamber of that Court for an examination, finding no significant violations of substantive or procedural law which influenced the outcome of the proceedings."],"233":["2.The applicants, Ms Nataliya Guramovna Lesnykh and Mr Sergey Ivanovich Lesnykh, are Russian nationals, who were both born in 1957 and live in the village of Pereleshinskiy of the Voronezh Region.","3.The Government were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, MrA.Fedorov.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicants are the parents of Mrs D.G., born in 1988, who died as a result of the events described below. Prior to her death Mrs D.G. was married to Mr S.G. with whom she had a daughter. The family resided together in a house.","6.Mr S.G. was unemployed and in May 2009 he was investigated by the police on suspicion of participation in a gang rape. The case was apparently later dropped.","7.On 12 June 2009 the Anninskiy Interdistrict Investigative Department of the Investigative Committee of the Voronezh Region was informed over the phone that at around 1.30 a.m. Mrs D.G. had been found hanged in the yard of her house.","8.On the same day the authorities examined and described the scene of the accident, having made photographs and seized the corpse and the rope on which it had hanged. They also identified the circle of possible witnesses, among them the victim\u2019s husband, members of the extended family, other relatives and neighbours. The authorities also found hand\u2011written notes by Mrs D.G., in which she had complained about her husband and, among other things, threatened to divorce him.","9.The authorities acted within the framework of pre-investigation inquiry.","10.In a statement dated 12 June 2009 Mr I.L., the brother of Mrs D.G., described her sister\u2019s family situation as \u201cdifficult\u201d and mentioned that MrS.G. on multiple occasions had been violent to his sister, that he himself had witnessed some of the resulting injuries. He also stated on 13 and 14May2009 that he had witnessed a conversation between her sister and her husband in which the latter threatened \u201cto kill her\u201d, whereas his sister in turn threatened to commit suicide.","11.In a statement dated 12 June 2009 Mrs O.Ye., a sister of Mrs D.G., described a few episodes during which Mr S.G. had been violent towards Mrs D.G. and also stated that the latter had discussed the possibility of committing suicide.","12.In a statement dated 14 June 2009 Ms T.L., another sister of MrsD.G., gave essentially similar statements, without mentioning anything on the latter\u2019s allegedly suicidal thoughts.","13.In respective statements dated 14 June 2009 the second applicant confirmed multiple instances of domestic violence, whereas the first applicant also mentioned witnessing a conflict between her daughter and the husband prior to the suicide.","14.In a statement dated 16 June 2009 Mr S.G. admitted to having used violence in respect of his wife and also mentioned the Mrs D.G. had had suicidal thoughts. The authorities did not put any detailed questions to MrS.G. about the episodes of domestic violence.","15.The body was examined by a forensic expert between 13 and 27June 2009, who issued a report establishing that Mrs D.G. had died as a result of hanging, that there was a strangulation line on the neck, that there was a fresh bruise on the right knee and that there were four old scars on the left forearm, as well as signs of alcohol intoxication in the blood.","16.From the case-file it does not appear that Mr S.G. or his clothes were ever examined by a doctor or a forensic expert after the discovery of MrsD.G.\u2019s body. It also appears that the mobile phone of the victim was never located and examined.","17.On 22 June 2009 the investigator took a decision not to bring criminal investigation into the events. The decision mentioned with reference to statements of multiple witnesses that there had been instances of domestic violence in the family, that at least on one occasion, on 11September 2008, Mrs D.G. had applied for medical help in a district emergency service and that this information had been forwarded to the police. The investigator decided that the mentioned violence had taken place in the past, that it was unrelated to the suicide and closed the case accordingly.","18.On 5 October 2009 the decision of 22 June 2009 was reviewed and quashed by the Regional Investigative Committee. The investigation was ordered, among other things, to establish in detail the events of the last day, to collect detailed witness statements regarding episodes of domestic violence, to give legal characterisation to the actions of Mr S.G. during the episodes of domestic violence as well as further to elucidate the circumstances of death of Mrs D.G.","19.Between 5 October 2009 and 28 November 2014 the pre\u2011investigation inquiry was resumed and suspended on multiple occasions.","20.It appears that all of the decisions to refuse to bring criminal investigation mentioned different episodes of Mrs D.G.\u2019s ill-treatment by her husband, that Mrs D.G. had left the husband and had come back many times, that Mrs D.G. had had an abortion some time prior to the events, after which she became depressed and that on the day before the spouses had not had an argument or fight. All decisions insisted on the lack of connection between the violent episodes and Mrs D.G.\u2019s suicide.","21.An expert examination conducted between 14 September 2011 and 9April 2012 in respect of Mrs D.G.\u2019s mental condition concluded that the deceased had not had psychiatric issues prior to death. With reference to witness statements, the same report pointed at Mrs D.G.\u2019s vulnerability, apathy and depression prior to her death.","22.The numerous decisions to quash the decisions to refuse to bring criminal investigation into the death of Mrs D.G., taken in reply to the applicants\u2019 appeals, including appeals in court, referred to poor quality and insufficient scope of the previous inquiries.","23.On 10 November 2014 the authorities (the Voronezh Regional Branch of the Investigative Committee) decided to open criminal investigation in respect of the events surrounding Mrs D.G.\u2019s death. In November 2014 the case was assigned to the Panninskiy District Branch of the Investigative Committee. On 28November 2014 the applicants were recognised as victims within the framework of the investigation.","24.The investigator proceeded to conduct interviews of the witnesses. The investigator also ordered additional expert examinations in respect of the body of Mrs D.G., her hand-written notes as well as her mental condition prior to death. The authorities received in response expert reports with essentially the same conclusions as previously.","25.On 1 December 2014 the investigator interviewed Mr S.G., who at this time was held in remand prison on robbery charges.","26.By letter of 9 December 2014 the Forensic Centre of the Ministry of Justice in the Voronezh Region informed the investigation that it was impossible to date Mrs D.G.\u2019s hand-written notes.","27.On 12 January 2015, after multiple additional interviews of various witnesses, the criminal investigation was discontinued for the lack of evidence of any crime.","28.On 27 February 2015 the decision of 12 January 2015 was quashed and the investigation resumed. The criminal investigation was then repeatedly discontinued and resumed (the latest decision dating 22June2016) with essentially the same reasoning as previously. In one of the decisions the authorities admitted to having failed to locate and examine the victim\u2019s mobile phone during the proceedings.","29.On 4 December 2020 the first applicant informed the Court that on 12 July 2016 the second applicant had died."],"234":["1. The applicant, Ms Anna Mad\u011brov\u00e1, is a Czech national, who was born in 1960 and lives in Mackovice. She was represented before the Court by Ms Z. Candigliota, a lawyer practising in Brno.","2. The Czech Government (\u201cthe Government\u201d) were represented by their Agent, Mr V\u00edt A. Schorm, of the Ministry of Justice.","The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","Sterilisation of the applicant","4. On 30 May 1982 the applicant was sterilised during her second caesarean delivery at the Znojmo hospital. The applicant had neither demanded sterilisation nor had she mentioned it to a doctor before the delivery. It was only two days after the delivery, on 1 June 1982, that a nurse made her sign a consent form.","5. The applicant remarried in 1986 and wished to have another child. However, she was unable to get pregnant despite having undergone a reversal procedure, artificial insemination and in vitro fertilisation.","6. On 3 January 2005 the applicant approached the Ombudsperson ( ve\u0159ejn\u00fd ochr\u00e1nce pr\u00e1v ) who was then investigating forced sterilisation of Roma women, complaining of having been sterilised without her consent. In his statement of 2 February 2005, the Ombudsperson concluded that the applicant\u2019s sterilisation had been irregular because she had never demanded it nor had she given any informed consent.","7. Nonetheless, the parties differ as to the exact moment when the applicant became aware of the sterilisation. According to the applicant, it was only after the Ombudsperson\u2019s disclosure of his inquiry that she was granted access to her medical documentation and, accordingly, was informed of the medical treatment carried out in 1982. The Government, on the other hand, assert that it follows from the evidence taken before the domestic courts that the applicant was aware of the sterilisation and its consequences on 6 June 1982 at the latest.","Criminal proceedings","8. In 2005 the applicant lodged a criminal complaint against two doctors involved in her delivery.","9. The Police ordered an expert report within the criminal investigation on 5 January 2006. It showed that the applicant\u2019s consent to the sterilisation given after the medical treatment without a decision of a competent commission was null and void; moreover, her sterilisation had not been necessary at all.","10. Besides that, the Police questioned both the applicant and her then husband, Mr M. Both testified that the applicant had found out about her sterilisation at the beginning of June 1982, at the latest on 6 June during the senior doctor\u2019s ward round.","11. On 28 February 2006 the public prosecutor discontinued the criminal proceedings since the prosecution was time-barred.","Civil proceedings","12. The applicant attempted to bring her case before a court by identical actions filed on 31 August 2009 and 15 February 2010. Since she was by then unemployed, the applicant sought to be exempted from payment of the court fee and to be granted free legal assistance. She stated that she had already contacted some lawyers who requested a deposit of 30,000 Czech korunas (CZK) (equivalent to 1,150 euros (EUR)). After having refused her requests on the ground that she was owner and co-owner of in total three houses and of some plots of land and her financial situation, thus, did not justify the granting of any of the requests, the Znojmo District Court rejected her actions for procedural defects.","13. On 29 November 2010 the applicant lodged a civil action for protection of her personal rights under Article 11 et seq. of the Civil Code with the Brno Regional Court ( krajsk\u00fd soud ). She sought that the Znojmo hospital be ordered to provide her written apologies and to pay her CZK 6,000,000 (equivalent to EUR 235,248) in compensation for non \u2011 pecuniary damage.","14. According to the applicant, she could not have instituted the proceedings at issue earlier due to a lack of finances and to misleading information by her lawyer who made her hope for an extrajudicial friendly settlement.","15. At a hearing on 21 April 2011, the applicant testified that in 1988 she had undergone an infertility treatment but then was not told that she had been sterilised. She would only realise this was the case while appearing as a guest on a TV show in 2005.","16. On 16 June 2011, after having assessed the merits of the action, the Brno Regional Court held that the applicant\u2019s sterilisation had been carried out in breach of the relevant law then in force. As the respondent hospital had violated the law and, accordingly, breached the personal rights of the applicant, who suffered a serious and irreparable interference with her private and family life, the court ordered it to provide her with a written apology, which in its view constituted appropriate satisfaction. It further noted that the applicant had also received partial \u201ccompensation\u201d by presenting her case and her opinion in a television show, even though her participation there was not remunerated.","17. However, as to the claim for monetary compensation, the respondent hospital argued that such a claim was statute-barred.","18. Having regard to the case-law (see paragraphs 28-32 below), the regional court concluded that, in the present case, a three-year statutory limitation period had begun to run the day after the medical intervention and had elapsed on 31 May 1985. Thus, the applicant had lodged her claim with the court after the statutory limitation period had already elapsed. However, in view of the Constitutional Court\u2019s judgment no. II. \u00daS 635\/09 of 31 August 2010, the regional court gave special attention to whether the application of the statutory limitation period in the case at hand was contra bonos mores. It concluded that it was not, since the applicant knew about the impugned interference on 3 January 2005 at the latest. This was when she approached the Ombudsperson who subsequently confirmed her suspicion of having been sterilised on 2 February 2006. Moreover, although there had initially been a lack of clarity over the applicable time-limit for a claim for compensation for an unlawful interference with the right to the protection of personal rights, the domestic courts\u2019 confirmation of the three \u2011 year statutory limitation period had been made public on 31 January 2008 and the applicant did not lodge her claim with the court until 29 November 2010.","19. On 4 January 2012 the Olomouc High Court upheld the regional court\u2019s judgment on the merits. It further noted that the reversal of the case \u2011 law had not been contrary to the principle of legal certainty, having been done for the sake of important principles. Referring to two decisions of the Constitutional Court, that is no. I. \u00daS 634\/04 and no. II. \u00daS 635\/09, the High Court upheld the conclusion that the objection contra bonos mores was unfounded in the case at issue. The High Court recalled that when the applicant had attempted to initiate proceedings in 2009 and 2010, her requests to be exempted from the court fee were refused on the basis of information and evidence supplied by her regarding her income, debts and property (at the latest from 2004 she had been owner and co-owner of three houses and of some plots of land). Consequently, the court did not accept that her financial situation had prevented her from lodging her action at an earlier stage. The High Court concluded that, contrary to the applicant\u2019s submissions, it had not been because of her financial situation that she had failed to lodge her action at an earlier stage.","20. The High Court further observed that the applicant had stated in the course of the criminal proceedings (see paragraph 10 above) that she had been informed of her sterilisation at a medical control carried out at the time of her release from the hospital in 1982. It noted in that respect, that according to the wording in force in 1982 (that is, prior to the 1990 amendment) Article 13 of the Civil Code did not provide expressly for granting any compensation for non-pecuniary damage; however, it did not exclude it either. The applicant had, therefore, a right to compensation pursuant to the legislation in force in 1982. Moreover, as the statutory limitation period was \u2013 and had also been at the time of the impugned interference \u2013 three years, it had elapsed on 30 May 1985. However, for reasons that may not be attributable to anyone else other than the applicant herself, it was not until 29 November 2010 that she had lodged her action, that is to say twenty-five years after the statutory limitation period had elapsed; almost three years after the public had been informed of the existence of the statutory limitation period for the right to a compensation for non-pecuniary damage following the 1990 amendment; and two years after such practice had been well-established by virtue of the judgment of the Grand Chamber of the Supreme Court. The applicant could not, therefore, reasonably contend that her claims were not statute barred.","21. On 31 October 2012 the Supreme Court dismissed the applicant\u2019s appeal on points of law finding that the conclusions reached by the high court complied with its own long-standing conclusively settled case-law.","22. The applicant filed a constitutional appeal invoking a violation of her right both to a fair trial and to respect for her private and family life. On 17 January 2013 the Constitutional Court dismissed it as manifestly ill \u2011 founded. It noted that even though the sterilisation had been carried out without the applicant\u2019s consent, which constituted a serious and irreparable interference with her rights, it had to be underlined that the protection of such rights was not unlimited. It stated that the courts had duly reviewed the issue of the statutory limitation period in the light of the reversal of the case \u2011 law, as well as the compliance of the application of the statutory limitation period with bonos mores. It observed that at the time when the applicant lodged her action, the issue of the statutory limitation period had already been clearly established in the case-law. The courts, therefore, proceeded in compliance with the Constitution by concluding that the applicant\u2019s claim was time-barred and that such objection was not contra bonos mores.","Relevant domestic law and practiceRelevant provisions of Act no. 40\/1964, the Civil Code in 1982","Relevant provisions of Act no. 40\/1964, the Civil Code in 1982","Relevant provisions of Act no. 40\/1964, the Civil Code in 1982","23. Under Article 11, natural persons had the right to protection of their personal rights, in particular their life and health.","24. Under Article 13, natural persons had in particular the right to request that unjustified infringements of their personal rights be ended and that the consequences of such infringements be erased. They also have the right to appropriate satisfaction.","25. Under Article 100 \u00a7\u00a7 1 and 2, a right was time-barred unless it had been exercised within the time-limit set forth in the Civil Code. A court was to take time bar into account only on the basis of the debtor\u2019s objection. If the debtor appealed to the time bar, the creditor could not be awarded the time-barred right. Time bar applied to all property rights.","26. Article 101 of the Civil Code provided that unless stipulated otherwise, the time bar period was of three years and started to run on the date on which the right could have been exercised for the first time.","The Civil Code amendment by Act no. 87\/1990, in force from 29 March 1990","27. In 1990, the relevant provisions of the personality rights were extended. Since then Article 13 \u00a7 2 provided that, in cases where the satisfaction obtained under Article 13 \u00a7 1 was insufficient, in particular because the injured party\u2019s dignity or social standing had significantly been diminished, he or she was also entitled to monetary compensation for non-pecuniary damage.","Domestic case law concerning limitation of claims for compensation for non-pecuniary damage","28. After the said Civil Code amendment, the courts\u2019 interpretation of the statutory limitation period for bringing a claim for monetary compensation for non-pecuniary damage continued to develop until 2008.","29. First, in its judgment no. 30 Cdo 1542\/2003 of 25 September 2003 the Supreme Court held that the right to just satisfaction for an unlawful interference with the right to the protection of personal rights, as part of the integrated personal right, should not be subject to time bar.","30. However, a few months later the Olomouc High Court in its judgment no. 1 Co 63\/2003 of 17 February 2004 inferred that the right to monetary compensation for non-pecuniary damage under Article 13 \u00a7 2 of the Civil Code was a property right and as such it should be subject to the general time bar period.","31. This reversal of the case law was upheld by the Supreme Court in its judgment of the Grand Chamber of the Civil and Commercial Division no. 31 Cdo 3161\/2008 of 12 November 2008.","32. Finally, in its judgment no. II. \u00daS 635\/09 of 31 August 2010 the Constitutional Court did not question the conclusion of the Supreme Court\u2019s judgment of 2008. Nonetheless, it emphasised that owing to the reversal of the Supreme Court\u2019s case-law (which it considered to be acceptable in specific circumstances), the time bar of actions on monetary compensation for a violation of personality rights should, within the proceedings instituted before the publication of the Supreme Court\u2019s judgment of 2008, be particularly sensitively taken into account on a case-to-case basis and special attention should be paid to whether an objection to the time bar contra bonos mores has been raised."],"235":["The circumstances of the case","1. The facts of the case, as submitted by the applicant, may be summarised as follows.","2. The applicant is a Norwegian national, who was born in 1968 and lives in Oslo. He was represented before the Court by Mr K. S\u00f8rensen, a lawyer practising in Oslo. He has four children together with B, his former spouse. The applicant has had the daily care of the two oldest children, while care orders have been issued in respect of the two younger children. The application relates to the applicant \u2019 s youngest son, X, born in December 2010.","3. The applicant and his family first came in contact with the child welfare services in August 2011, as B had reported of the applicant being violent against her. In the four year-period from August 2011 until July 2015, the child welfare services conducted regular visits to the family, and received several notices of concern regarding the situation in the family. During this period several support and aid measures to improve the applicant \u2019 s and B \u2019 s ability to care for children were implemented, at certain times 20-30 hours of counselling each month. However, the implemented measures were not successful, and the child welfare services continued to receive notifications of concern regarding neglect of the children, inter alia to the effect that the children were being subjected to violence from the parents.","4. On 28 July 2015 the child welfare services made an emergency care order under which the applicant \u2019 s two youngest children, X and his brother, were placed in an emergency foster home. The child welfare services set contact rights for the applicant at one hour every week, under supervision. The applicant and B appealed against the decision.","5. On 7 August 2015 the County Social Welfare Board ( fylkesnemnda for barnevern og sosiale saker ) upheld the emergency care order. Contact rights for the applicant were set at three hours every week, under supervision.","6. On 14 January 2016 the Board issued a care order in respect of X.","7. On 22 September 2016, by judgment of the City Court ( tingrett ), the care order was upheld. The City Court found that X had been subjected to very bad conditions for care in a dysfunctional family over a prolonged period \u2013 approximately five years \u2013 during an early stage in his life. Moreover, it found that the home of the applicant, where X was cared for, was very chaotic, dirty and unsuited for children. Furthermore, the City Court noted that the applicant and B had a very high level of conflict, marked by arguments and violence. At least X \u2019 s older brother had been exposed to violence from the applicant, and X had been witness to violence between the applicant and B. The City Court also noted that the applicant had received support from the child welfare services, including anger management courses, which had however proved unsuccessful as the applicant had continued subjecting X \u2019 s brother to violence. The City Court held that the applicant with a high degree of probability would continue to use violence against one or several of the children. Regarding B, the City Court found her to have substantial undiagnosed and untreated mental health issues.","8. In the light of reactions that the children had suffered after contact sessions, the contact rights for the applicant in respect of X were set at three hours, four times per year. The applicant did not appeal against the judgment.","9. On 3 August 2018 the child welfare services, at the request of the applicant, initiated proceedings on whether the care order could be lifted, or, in the alternative, on the future contact rights for the applicant and B.","10. On 26 and 27 November 2018 an oral hearing before the Board was held. The Board \u2019 s bench comprised one jurist qualified to act as a professional judge, one psychologist, and one lay person. The applicant had legal aid counsel and could give testimony, adduce evidence and argue his case. A spokesperson for X was appointed, and gave evidence on X \u2019 s opinions.","11. In its decision of 10 December 2018 the Board concluded that the care order could not be lifted. It found that X at the time was a very vulnerable child, who was fundamentally insecure and had substantial problems with self-regulation. The Board referred among other things to testimonies from X \u2019 s special needs-teacher and his foster mother, stating that he was in need of an assistant following him throughout the school day in order to facilitate stability and protection against any deviation from a foreseeable and stable day. Following failures to facilitate sufficient stability for him, X had resorted to self-harm and violence against others, developed eating disorders, and struggled with incontinence at night time. Against that background, the Board stated that he was in need of parental care that would meet his particular needs, and that a failure to meet those needs would entail great risk of further development of psychological and physical problems for X.","12. Regarding the applicant \u2019 s ability to care for X, the Board found that he had in part exposed X to \u201cmassive neglect\u201d, and that his caring skills had not substantially improved. The Board found that the applicant previously had been violent towards his wife and children, that he did not manage to control his anger, and it referred in that context also to the applicant \u2019 s conduct during one of the contact sessions. Furthermore, the Board took X \u2019 s wishes into consideration. He had expressed a desire to remain in the foster home.","13. Against the above background, the Board found that the care order could not be lifted.","14. Regarding the extent of contact rights, the child welfare services were of the view that the contact rights set in the District Court \u2019 s decision of 16 September 2016 had been too extensive, as experience had since shown that contact sessions caused severe reactions for X. The Board agreed, as it noted that X had sustained in part tremendous and long-lasting reactions after contact sessions with his biological parents, and that such reactions had extended to 14 days \u2013 and in one instance to six to seven weeks \u2013 after contact sessions with the applicant. Although the Board considered that certain reactions had to be tolerated, reactions of such severity as X had were considered to be a serious matter. Against that background, the Board set the contact rights of the applicant at one and a half hours, twice per year, under supervision.","15. The applicant and B appealed against the Board \u2019 s decision.","16. On 4 and 5 April 2019 an oral hearing before the City Court was held. The court \u2019 s bench was composed of one professional judge, one psychologist, and one lay person. The parties to the case gave evidence and eight witnesses were heard. The child \u2019 s spokesperson \u2019 s report was presented as evidence, while the City Court had declined a request from the applicant to appoint a separate expert to assess his caring skills.","17. In its judgment of 30 April 2019 the City Court upheld the Board \u2019 s decision not to lift the care order. The City Court referred to the Board \u2019 s reasoning, with which it concurred, and found that X had very extensive needs in respect of care of which a substantial part was owing to the neglect of the biological parents. It furthermore examined whether the applicant had sufficient ability to care for X, but found that he was unable to satisfy the child \u2019 s need for parental care, in particular as he failed to comprehend the problems that X struggled with. The City Court assessed in that context whether measures could be implemented in order to improve the applicant \u2019 s ability to care for X, but held, in the light of the child \u2019 s extensive caring needs, that it would not be possible to implement further measures which in practice could improve the situation. In addition, the City Court referred to the explicit and strong wish of X to remain in the foster home.","18. Turning to contact rights, the City Court also referred to the reasoning of the Board. As had the Board, it considered that the placement in care would be long-term and in the light of the strong reactions that X suffered upon contact sessions, his very vulnerable situation and his comprehensive problems, the City Court found that there were special and strong grounds for setting the contact rights of the applicant at a low level. Accordingly, contact rights were set at one and a half hours, once a year, under supervision.","19. The applicant and B appealed against the City Court \u2019 s judgment.","20. On 8 July 2019 the High Court ( lagmannsrett ), in a reasoned decision and sitting in a formation of three professional judges, refused the applicant and B leave to appeal. The High Court stated that it had been clearly substantiated that X had been subject to substantial neglect, which had caused his current particular and extensive need for care. Furthermore, as to the applicant, it had been substantiated that he lacked ability to care for X, and there were not reasons to question the City Court \u2019 s assessment of the measures taken to improve his ability to provide X with care. As had the lower instances, the High Court lastly emphasised the wishes of X himself to remain in foster care.","21. Regarding contact rights, the High Court found it clear that the placement in care would be long-term and it noted in particular the negative and particularly strong reactions X had suffered upon contact sessions with the applicant, and that the reasons for those reactions had been thoroughly examined by both the Board and the City Court. Against that background, the High Court considered that the assessment done by the City Court was not questionable.","22. The applicant and B appealed against the High Court \u2019 s decision.","23. On 8 August 2019 the Supreme Court ( H\u00f8yesterett ), in a summary decision, dismissed the appeal.","Relevant domestic law and practice","24. Under section 4-12 of the 1992 Child Welfare Act ( barnevernloven ), a child may be taken into public care if there are serious deficiencies in the daily care of the child or in relation to the personal contact and security needed by the child according to his or her age and development. Contact rights between a child in public care and his or her parents are regulated in section 4-19, which sets out that the extent of the contact rights is decided by the County Social Welfare Board. Under the same provision, the private parties can demand that the matter be reconsidered by the Board as long as at least twelve months have passed since the Board or the courts last considered it."],"236":["12.The applicant is a Syrian national, born in 1959, who fled Syria in January 2015. He entered Denmark in April 2015 and requested asylum.","13.In his interview with the Immigration Service (Udl\u00e6ndingestyrelsen) on 11 May 2015, the applicant explained that he had left Syria legally by plane from Damascus, via Beirut, to Istanbul. He had stayed in Istanbul for two months in a rented apartment. His brother, born in 1965, joined him there, and via an agent, they travelled by boat to Greece, and from there, hidden in a truck, to Denmark. The trip had cost him around 7,000 euros (EUR). In support of his request for asylum, he submitted that being a doctor, he was at risk of being subjected to ill\u2011treatment by both the authorities and the rebel movement. He had twice been stopped at a checkpoint. He also stated that his wife, G.M., born in 1966, whom he had married in 1990, worked as a media consultant. She and their two adult children had remained in Syria.","14.On 8 June 2015 the Immigration Service granted him \u201ctemporary protection status\u201d for one year, under section 7(3) of the Aliens Act, concerning individuals who face capital punishment, torture or inhuman or degrading treatment or punishment due to severe instability and indiscriminate violence against civilians in their home country.His residence permit was subsequently extended for one year at a time.","15.The Immigration Service did not find that the applicant fulfilled the requirements for being granted protection under section 7(1) of the Act (individuals falling under the protection of the UN Refugee Convention, \u201cConvention status\u201d) or under 7(2) (individuals, who do not qualify as refugees under the UN Refugee Convention, but who are facing capital punishment, torture or inhuman or degrading treatment or punishment, if returned to their home country, \u201cprotection status\u201d). At the relevant time, residence permits under subsections 1 and 2 were normally granted for five years.","16.The applicant appealed against the decision to the Refugee Appeals Board (Flygtningen\u00e6vnet), arguing that he should be granted protection under section 7(1) or (2) of the Aliens Act. By decision of 9December 2015 the Refugee Appeals Board upheld the Immigration Service\u2019s decision to grant the applicant temporary protection under section 7(3). The reasoning was as follows:","\u201cThe majority of the members of the Refugee Appeals Board accept as a fact, based on the information provided by the Immigration Service, that the appellant satisfies the conditions for being granted residence under section 7(3) of the Aliens Act. The majority of the members of the Refugee Appeals Board find that the appellant has failed to render it probable that he has placed himself in such an adversarial position to the Syrian authorities or to the opposition of the regime due to his specific and personal circumstances that he risks persecution or ill-treatment falling within section 7(1) or section 7(2) of the Aliens Act if returned to Syria.","The majority of the Board have emphasised in this context that the appellant was not subjected to specific and personal persecution during his stay in Damascus despite the fact that he was stopped at a checkpoint on two occasions because he is a doctor. In making this assessment, it was taken into account that the appellant was stopped solely for the reason that he was a doctor and that on both occasions he was permitted to continue, and that he had not been called on at his house by authorities or other groups, nor had they otherwise approached him about specific matters.","The majority of the Board accordingly find, regardless of the generally difficult conditions of doctors in Syria, that the appellant cannot be deemed to have caught the attention of the authorities or others in such manner that he falls within section 7(1) or section 7(2) of the Aliens Act. Reference is also made to the circumstance that it is solely based on the appellant\u2019s own assumption that [he] will experience problems due to his medical profession. Accordingly, [the applicant] does not satisfy the conditions for being granted residence under section 7(1) or section 7(2) of the Aliens Act, for which reasons the Refugee Appeals Board upholds the decision made by the Immigration Service.\u201d","Under Danish law, decisions of the Refugee Appeal Board are final and not subject to appeal (section 56 (8) of the Aliens Act).","17.In the meantime, on 4 November 2015, the applicant requested family reunification with his wife and two adult children, who were born in 1992 and 1993 respectively. The children are not part of the proceedings before the Court. In the application the applicant\u2019s wife, who at the relevant time was 48 years old, declared that she did not suffer from any serious illness or disability.","18.On 5 July 2016, the applicant\u2019s request was rejected by the Immigration Service because he had not been in possession of a residence permit under section 7(3) of the Aliens Act for the last three years as required under section 9(1)(i)(d) of the Act, and because there were no exceptional reasons, including concern for the unity of the family, to justify family reunification under section 9c(1) of the Act. The Immigration Service emphasised that it had not taken a stand on whether other conditions had been fulfilled, including whether the marriage could be legally acknowledged in Denmark.","19.The applicant appealed against the refusal to grant him family reunification with his wife. On 16 September 2016 the Immigration Appeals Board (Udl\u00e6ndingen\u00e6vnet) upheld the decision. It noted in particular that the applicant was in good health, that the applicant\u2019s wife had confirmed that she did not suffer from any serious illness or disability and that she was not in need of care provided by others.","20.The applicant instituted proceedings before the courts complaining that the refusal to grant him family reunification with his wife was in breach of Article 8 read alone and in conjunction with Article 14 of the Convention. He submitted that he had been discriminated against as compared to persons who had been granted protection under section7(1) and (2) of the Aliens Act. By Act 102 of 3February 2016, the Danish Parliament had amended section 9(1)(i)(d) of the Aliens Act, so that the right to family reunification for a person who, like him, had been granted \u201ctemporary protection status\u201d under section 7(3) could be exercised only after three years (in the absence of exceptional reasons), while individuals enjoying \u201cConvention status\u201d or \u201cprotection status\u201d could be granted family reunification without being subjected to a waiting period.","21.The High Court of Eastern Denmark (\u00d8stre Landsret) found against the applicant in a judgment of 19 May 2017.","22.On appeal, by a judgment of 6 November 2017, the Supreme Court (H\u00f8jesteret) also found against him. Sitting as a panel of seven judges, it stated as follows:","\u201cThe case involves judicial review of the decision made by the Immigration Appeals Board on 16 September 2016, in which the application for residence in Denmark for [G.M.], the spouse of [M.A.], was rejected. [G.M.] had applied for a residence permit based on her marriage to [M.A.], who had been granted residence in Denmark under section 7(3) of the Aliens Act (temporary protection status due to the general situation in Syria, his country of origin).","The reason for the decision is that [M.A.] had not yet had his residence permit issued under section 7(3) of the Aliens Act for at least the last three years, see section 9(1)(i)(d), and that there were no exceptional reasons, including regard for family unity, for issuing a residence permit under section 9c(1) of the Aliens Act.","[M.A.] has submitted that the refusal of his application for family reunification was contrary to Article 8 read alone and to Article 14 of the European Convention on Human Rights read in conjunction with Article 8, when the decision of the Immigration Appeals Board was made, or at least the refusal is contrary to the Convention at the present time.","The Supreme Court notes in this respect that a judicial review of the Immigration Appeals Board\u2019s decision under section 63 of the Danish Constitution (grundloven) must be based on the circumstances existing at the time when the decision was made, see, inter alia, the Supreme Court decision reproduced on p. 639 of the Weekly Law Reports for 2006 (UfR 2006.639 H).","The issue of the right to respect for family life under Article 8","...","According to the case-law of the European Court of Human Rights, any State is entitled to control immigration into its territory provided that the State complies with its international obligations. Article 8 does not imply a general obligation on the part of a State to respect immigrants\u2019 choice of their country of residence or to grant them the right to family reunification on its territory. In a case which concerns family life as well as immigration, the extent of a State\u2019s obligations will vary according to the particular circumstances of the person involved and the general interest, see, for example, paras 43 and 44 of the judgment delivered by the Court of Human Rights on 10 July 2014 in Mugenzi v. France.","The decision in the case at hand was made in accordance with the provision that persons who are not recognised as refugees according to the UN Refugee Convention, but who cannot return because they risk ill-treatment falling within Article 3 of the Convention on Human Rights because of the general conditions in their country of origin, must normally have held a residence permit for three years before they become eligible for family reunification. A number of other signatory countries to the Convention on Human Rights also have rules stipulating that persons who are granted protection status without being UN Convention refugees can only be granted family reunification after the expiry of a certain period. The European Court of Human Rights has not yet considered to what extent such statutory waiting periods applicable to persons who are granted protection status without being UN Convention refugees are compatible with Article 8.","The Court said in its judgments of 10 July 2014 in Tanda-Muzinga v. France and Mugenzi v. France that refugees need to benefit from a family reunification procedure that is more favourable than that foreseen for other aliens and that such applications must be examined promptly, attentively and with particular diligence. The applicants in the above two cases were not persons granted temporary protection status, but refugees recognised under the UN Refugee Convention. As a matter of fact, the cases did not concern a statutory waiting period as in the case at hand, but situations in which the visa application examination procedure had been unreasonably lengthy.","The Court of Human Rights found in its judgment of the same date (10July2014) in Senigo Longue and Others v. France that Article 8 had been violated in a situation in which the French authorities had, in connection with the examination of an application for family reunification, doubted the applicant\u2019s maternal relationship with two children who had been left alone in Cameroon and had taken four years to reach a decision. In that case, the Court said that, despite the margin of appreciation enjoyed by the State, the decision-making process did not sufficiently safeguard the flexibility, speed and efficiency required to observe the right to respect for family life. The applicant in that case was not a refugee, but had come to France as a result of family reunification with her spouse. The case did not concern the period of 18 months that she had to wait under French law before being able to apply for family reunification, but only the long processing time after the application had been lodged.","It follows from the ... Court\u2019s case-law that the factors to be taken into account when determining whether a State is obliged to grant family reunification are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control or considerations of public order weighing in favour of exclusion, see, inter alia, \u00a7 70 of the judgment delivered on 28September 2011 in Nunez v.Norway.","It appears from the preparatory notes of section 7(3) and section 9(1)(i)(d) of the Aliens Act that the separate treatment of this group of people whose need for protection is based on the general situation in their country of origin (temporary protection status under section 7(3) and the limited right to family reunification afforded to this group were introduced in the light of the conflict in Syria, which has caused millions of people to flee and has led to a significant increase in the number of new asylum-seekers in Denmark. It also appears from the preparatory notes that the Government is ready to assume joint responsibility and safeguard the protection of this group of asylum-seekers for as long as they need protection, but that Denmark is not to accept so many refugees that it will threaten national cohesion. Moreover, it appears that the number of newcomers determines whether the subsequent integration becomes successful and that it is necessary to strike the right balance to maintain a good and safe society.","Against this background, the Supreme Court finds that the restriction on the eligibility for family reunification is justified by interests to be safeguarded under Article 8 of the Convention.","The question is now whether the restriction is necessary in a democratic society in order to safeguard the said interests.","The Supreme Court finds that the situation of [M.A.] is not comparable with the situations considered by the European Court in Tanda-Muzinga v. France, Mugenzi v. France and Senigo Longue and Others v. France. The first two cases concerned UN Convention refugees, and all three cases concerned long processing times.","The assessment of whether the decision of the Immigration Appeals Board to refuse family reunification is compatible with Article 8 must therefore be based on the general criteria listed by the European Court of Human Rights, see Nunez v. Norway (cited above).","[M.A.] had held a residence permit for Denmark for about one year and three months when the application was refused by the Immigration Appeals Board. Accordingly, he had limited ties in Denmark, and [G.M.], his spouse, has no ties in Denmark.","The Supreme Court accepts as a fact that the couple face insurmountable obstacles to cohabiting in Syria because [M.A.] risks ill-treatment falling within Article 3 if returned to Syria due to the particularly serious situation characterised by arbitrary violence and ill-treatment of civilians. In reality, the refusal of the application for family reunification therefore implies that he is prevented from cohabiting with his spouse, although the barrier to his right to exercise his family life is only temporary.","It follows from the decision of the Refugee Appeals Board of 9 December 2015 that [M.A.] has not placed himself in an adversarial position to the Syrian authorities or to the opposition of the regime due to his specific and personal circumstances so that he risks persecution or ill-treatment falling within section 7(1) or section 7(2) of the Aliens Act and that he has not caught the attention of the Syrian authorities or others in such manner as to fall within those provisions. Therefore, he can return to Syria when the general situation in the country improves. If there is no such improvement within three years from the date on which [M.A.] was granted residence in Denmark, he will normally be eligible for family reunification with his spouse. An application to this effect can be lodged two months prior to expiry of the three-year period, and the Supreme Court accepts as a fact that, in that case, the application will be examined as set out in the preparatory notes of the Act as quickly as possible when he has resided in Denmark for three years and a decision has been made to renew his temporary residence permit under section 7(3). Should exceptional circumstances emerge before the expiry of the three-year period, such as serious illness, which will make the separation from his spouse particularly severe, it will be possible to be granted family reunification under section 9c(1) of the Aliens Act.","Against this background, the Supreme Court finds that the condition that [M.A.] must normally have been resident in Denmark for three years before he can be granted family reunification with his spouse falls within the margin of appreciation enjoyed by the State when balancing the regard for the respect for his family life and the regard for the interests of society, which can be safeguarded according to Article 8.","The Supreme Court finds that the decrease in the number of asylum-seekers in 2016 and 2017 cannot result in a different outcome of the assessment of whether the decision made by the Immigration Appeals Board in the case of [M.A.] was justified. The Supreme Court observes in this respect that it was decided by Act No. 153 of 18February 2015, which introduced the one-year residence permit requirement as a condition for the right to family reunification, that a review of the Aliens Act should be introduced in the Parliamentary year 2017\/2018 at the latest. By Act No. 102 of 3February 2016, which amended the three-year residence permit requirement, this review clause was maintained. The reason for this amendment given in the preparatory notes is that the Government found that the extraordinary situation with a very large number of asylum-seekers and applications for family reunification in Denmark had made it necessary to tighten rules as proposed.","The Supreme Court therefore concurs in the view that the decision made by the Immigration Appeals Board is not contrary to Article 8 of the European Convention on Human Rights.","The issue of differential treatment under Article 14 of the European Convention on Human Rights read in conjunction with Article 8","The requirement of three years\u2019 residence as a condition for family reunification applies to persons like [M.A.] issued with a residence permit under section 7(3) of the Aliens Act who risk ill-treatment falling within Article 3 of the Convention on Human Rights if returned to their country of origin because the situation in the country of origin is generally characterised by arbitrary violence against civilians. As opposed to those situations, the three-year residence requirement does not apply to aliens issued with a residence permit under section 7(1), because they fall within the Refugee Convention, or under section 7(2), because they risk ill-treatment falling within Article 3 if returned to their country of origin due to their personal circumstances.","Article 14 of the Convention ... prohibits differential treatment based on the rights protected by the Convention, such as sex, race, colour, language, religion, etc. or \u2018other status\u2019.","[M.A.] had not experienced differential treatment based on sex, race or any other status as expressly listed in Article 14 by the date of the decision made by the Immigration Appeals Board. However, it appears from the ... Court\u2019s case-law that a person\u2019s immigration status can be any \u2018other status\u2019 falling within Article 14, see \u00a745 of the judgment of 27 September 2011 in Bah v. the United Kingdom and \u00a7\u00a744 to 47 of the judgment of 6 November 2012 in Hode and Abdi v. the United Kingdom. It further appears that differential treatment contrary to Article 14 occurs if persons in similar or comparable situations are afforded a more favourable treatment in terms of the rights protected by the Convention and such differential treatment is not based on objective and fair reasons, that is, if the differential treatment is disproportionate to the legitimate aim pursued and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised. Finally, it appears that the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment and that the scope of this margin will vary according to the circumstances, the subject matter and the background.","According to the preparatory notes to section 9(1)(i)(d) of the Aliens Act, the different rules on family reunification applicable to aliens granted residence under section 7(1) and (2) and aliens like [M.A.] who are granted residence under section 7(3) are justified by the circumstance that aliens granted residence under section 7(1) and (2) are subjected to personal persecution, usually because of a conflict with the authorities or others in their country of origin, whereas aliens granted residence under section 7(3) are not subject to personal persecution but have fled due to the general situation, such as war, in their country of origin. Those individuals therefore do not have a specific conflict with anybody in their country of origin, and the preparatory notes considered it a fact that, in general, this group of individuals have a more temporary need for protection than persons subjected to personal persecution as the situation in their country of origin may quickly change in nature and become more peaceful.","The Supreme Court considers it doubtful whether the situation of [M.A.] is comparable with the situation of aliens granted residence under section 7(1) and (2) of the Aliens Act because they risk persecution due to their personal circumstances if returned to their country of origin. Despite this assumption, the Supreme Court finds that the difference in the right to family reunification, which is, as already mentioned, based on an assessment of the need for protection among different groups of individuals, must be deemed to have been based on objective and fair reasons falling within the margin of appreciation enjoyed by the State in a case concerning differential treatment based on immigration status.","Accordingly, the Supreme Court finds no basis for dismissing the assessment made by the Danish Parliament, according to which, from a general perspective, the need for protection of persons falling within section 7(3) of the Aliens Act is more temporary than that of persons falling within section 7(1) and (2). The general situation in a person\u2019s country of origin, which has justified a temporary need for protection, may quickly change. This is illustrated by the judgments delivered by the Court of Human Rights on 28 June 2011 in Sufi and Elmi v. the United Kingdom and on 5 September 2013 in K.A.B. v.Sweden.","In assessing whether the restriction on the right of [M.A.] to be granted family reunification in Denmark with his spouse is compatible with Article 14, taken in conjunction with Article 8, the Supreme Court has also emphasised that his separation from his spouse, as mentioned in the above paragraph on Article 8, is only temporary and that he can be granted family reunification at a later point if exceptional reasons apply.","Against this background, the Supreme Court concurs with the view that the decision made by the Immigration Appeals Board is not contrary to Article 14 of the Convention ... taken together with Article 8, either.\u201d","23.On 26 April 2018, having resided in Denmark for two years, ten months and two weeks, the applicant submitted a new request for family reunification. His request was refused on 22 October 2018 because the applicant had failed to submit documentation regarding the authenticity of the marriage. Having submitted the necessary documentation, on 24June2019 the applicant\u2019s wife was granted a residence permit, initially valid for one year. She entered Denmark on 29 September 2019."],"237":["2.The applicant is MsValeriya Igorevna Volodina; she is a Russian national who was born in 1985 and lives in an undisclosed location in Russia. In 2018, fearing for her safety, she obtained a legal change of name (see Volodina v.Russia, no.41261\/17, \u00a739, 9July 2019). Her old name is used in the judgment to protect her safety. The applicant was represented before the Court by MsVanessa Kogan, director of the Stichting Justice Initiative, a human-rights organisation based in Utrecht, the Netherlands.","3.The Government were initially represented by MrM. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, MrM. Vinogradov.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","Circumstances of the case","5.In November 2014 the applicant began a relationship with MrS., an Azerbaijani national. After their separation in 2015, S. threatened her with death or bodily injuries; he abducted and assaulted her on several occasions. For details, see Volodina, cited above, \u00a7\u00a710-36.","6.In June 2016 the applicant\u2019s brother told her that her account on the Russian social media platform VKontakte had been hacked. Her invented name had been replaced with the real name; her personal details, a photograph of her passport and her intimate photographs had been uploaded to the account. Classmates of her twelve\u2011year-old son and his class teacher had been added as friends. The applicant attempted to log into her account only to discover that the password had been changed.","7.On 22June 2016 the applicant complained to the Ulyanovsk police about a breach of her right to privacy. The police took a statement from the applicant\u2019s brother. He said that he had talked to S. on the phone and that S. had admitted that he had hacked into the applicant\u2019s email account and sent obscene messages to her contacts. He had done so out of desperation because he had \u201cno good way of bringing [her] back\u201d. Claiming that they were unable to locate S. in their jurisdiction, on 21July 2016 the Ulyanovsk police forwarded the matter to the police in the Krasnodar Region where S. had registered his residence. On 29August 2016 the Krasnodar police sent the file on to the Samara Region where S. had moved. On 30September 2016 the Samara police returned the case file to their colleagues in Ulyanovsk.","8.On 7November 2016 the Ulyanovsk police declined to institute criminal proceedings on the grounds that the information had been made public on social media rather than in the media. The supervising prosecutor set that decision aside as unlawful because S. had not been interviewed. On 2May 2017 the police again declined to open a criminal case, finding no indication that S. had collected or disseminated information about the applicant\u2019s private life. The decision stated that it had not been possible to locate S. who had no Russian nationality or proof of residence in Russia. On 1February 2018 the supervising prosecutor annulled that decision. He directed the police to locate and interview S., to examine his electronic devices and records of his phone calls to the applicant.","9.On 6March 2018 the Ulyanovsk police opened a criminal investigation under Article137 of the Criminal Code. Over the following months, police investigators interviewed the applicant and S., first separately and later face\u2011to-face, took statements from the applicant\u2019s family members, seized and examined their mobile phones, obtained logs of phone communications from mobile providers, received information from the company operating the VKontakte site, and talked to a social media expert.","10.In February, March and September 2018, new fake profiles in the applicant\u2019s name appeared on VKontakte and Instagram. The profiles used her intimate photographs and personal details.","11.On 13 August and 19September 2018 the applicant complained to the Ulyanovsk police that S. had sent her death threats via social media and Internet messengers. She enclosed printouts of messages and asked the police to open a criminal case under Article119 of the Criminal Code (threats of death or bodily injury) and to grant her protection. On 3January 2019 the police refused to open a criminal case on the grounds that the threats had not been \u201creal\u201d.","12.Following the creation of court orders prohibiting certain forms of conduct (see paragraph 32 below), on 28September 2018 the applicant asked the investigator to seek an order which would prevent S. from using the Internet, contacting her by any means including via social media, e-mail or Internet messengers, or approaching her or members of her family. On 18October 2018 the investigator replied that, on account of his independent standing in the proceedings, the parties could not dictate him what action needed to be taken. He refused her request on the grounds that \u201cmeasures of restraint could be applied to suspects in exceptional circumstances only\u201d. By judgment of 27November 2018, as upheld on appeal on 21January 2019, the Ulyanovsk courts dismissed the applicant\u2019s complaint about the investigator\u2019s decision on the grounds that it had been issued by a competent official within his scope of discretion.","13.On 12December 2018 the applicant complained to the Kuntsevskiy District Court in Moscow that the Kuntsevskiy district police had not responded in any way to her report of a tracking device she had found in her bag two years previously (see Volodina, cited above, \u00a7\u00a728-29). On 26December 2018 the District Court found no fault with the actions of the district police because the deputy chief had forwarded the applicant\u2019s report to the Special Technical Measures Bureau shortly upon its receipt. On 28February 2019 the Moscow City Court dismissed, in a summary fashion, her appeal against the District Court\u2019s decision.","14.On 19January 2019 the Ulyanovsk police suspended the investigation into the fake social media profiles. They established that two fake profiles had been created in February and March 2018 using IP addresses and phone numbers registered in Azerbaijan. According to the billing information of his phones and the police database, on critical dates S. had been in the Tambov Region in Russia. The investigators decided to ask their Azerbaijani counterparts to obtain records of phone communications from the Azerbaijani number.","15.Counsel for the applicant applied for judicial review of the investigators\u2019 decisions. She complained that the criminal case had been opened following a two-year period of inactivity after the first report, that the fake profiles created in 2016 had not been investigated, that S.\u2019s friends and connections had not been identified or interviewed, that communications between S. and the phone number in Azerbaijan had not been evaluated, and that the collected evidence had not been made available to the applicant.","16.On 25June 2019 the Zavolzhskiy District Court in Ulyanovsk set aside the 19January 2019 suspension decision as unlawful and premature in so far as it did not fix a time-limit for receiving a reply from Azerbaijan and as it prevented the applicant from requesting the investigator to follow the leads which she believed needed to be explored. On 19August 2019 the Ulyanovsk Regional Court quashed the District Court\u2019s decision in respect of the applicant\u2019s complaints which had been granted. It held that the law did not require the investigator to make the case file available to the applicant until the investigation had been completed, and that the suspension decision had been lawful because \u201cthe investigator had ... given due consideration to all the circumstances\u201d underlying that decision.","17.On 14September 2019 the Kuntsevskiy district police in Moscow refused to open a criminal investigation into the tracking device. The decision listed the constituent elements of an offence under Article137 of the Criminal Code and stated that the device had been identified as a Russian\u2011made GPS tracker which was legally available for purchase. As the applicant had thrown away the device and the SIM card it contained, it was impossible to identify the owner. Her claim that \u201cno one but [S.] could have planted the device\u201d was speculation which could not be accepted as evidence. As there was no \u201cobjective evidence incriminating [S.]\u201d, the criminal case against him could not continue.","18.On 20October 2019 the owner of the telephone number registered in Azerbaijan which had been used for the fake social media accounts was established and questioned. The applicant was not informed of this development. Nor was it mentioned in the investigator\u2019s subsequent decision of 25December 2019 to suspend the criminal proceedings due to the failure to identify the perpetrator.","19.On 18May 2020 the applicant was questioned about the fake profiles which had appeared in 2018 on Instagram and VKontakte. The investigator asked the applicant if she knew certain named individuals in Azerbaijan and whether she would accept a polygraph test. She said she did not know these people and refused the test.","20.On 14October 2020 the Ulyanovsk police closed the criminal case under Article137 of the Criminal Code. According to the decision, it was established that in February and March 2018 S. had created fake profiles on VKontakte in the applicant\u2019s name and had published nude photos of her without her consent. The published photos had been found on his phone during an inspection. On 13October 2020 S. had filed a motion to discontinue the proceedings because the limitation period had expired. The motion had been granted: as the offence under Article137 was of lesser gravity, the two\u2011year period of limitation had expired in March 2020.","21.The decision was not communicated to the applicant or her lawyer. On 14April 2021 she became aware of its existence from the Government\u2019s Action Plan submitted to the Committee of Ministers in the framework of execution of the Volodina group of cases."],"238":["2.The first applicant was born in 1963 and lives in Tolisa, Bosnia and Herzegovina. The second applicant was born in 1967 and lives in Slavonski Brod. The first applicant was represented by Mr S. Nedi\u0107, a lawyer practising in Osijek, and the second applicant by Ms S. Dra\u017ei\u0107 Karali\u0107, a lawyer practising in Vinkovci.","3.The Government were represented by their Agent, Ms \u0160. Sta\u017enik.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.Both applicants were wounded in the war in Bosnia and Herzegovina as members of the so-called Croatian Defence Council (Hrvatsko vije\u0107e obrane), which was, during the war, the main military force of Croats living in that country.","6.On 7 July 2006 the first applicant applied to the Regional Office of the Croatian Pension Fund in Zagreb (Hrvatski zavod za mirovinsko osiguranje, Podru\u010dna slu\u017eba u Zagrebu, hereinafter \u201cthe Zagreb Office\u201d) for disability pension on account of his injuries sustained in the war.","7.On 17 November 2008 the Zagreb Office granted the first applicant disability pension with effect from 1 July 2006 in the amount of 2,433.05Croatian kunas (HRK). It also established that the Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje, hereinafter \u201ctheFund\u201d) would make the payments from the State budget and that the disability pension was to be paid retroactively on a monthly basis. The first applicant did not appeal, and the decision became final.","8.As the disability pension arrears for the period between 1 July2006 and 31 October 2008 had not been paid, the first applicant wrote to the Fund in a letter dated 24 May 2011, seeking payment.","9.On 4 December 2012 the Zagreb Office issued a supplementary decision (dopunsko rje\u0161enje) and specified that the disability pension arrears for the period between 1 July 2006 and 31 October 2008 would be paid to the first applicant once the funds for that purpose had been allocated in the State budget. The first applicant did not appeal, and that decision became final.","10.Meanwhile, on 5 September 2011 the first applicant instituted civil proceedings before the Zagreb Municipal Civil Court (Op\u0107inski gra\u0111anski sud u Zagrebu), seeking payment of the disability pension arrears for the period between 1 July 2006 and 31 October 2008, together with the statutory default interest. In December 2011 the Fund paid the first applicant the principal amount of the disability pension arrears for 2006, whereupon he withdrew that part of the claim.","11.By a judgment of 31 December 2012, the Zagreb Municipal Civil Court granted the first applicant\u2019s claim in full.","12.Upon an appeal lodged by the Fund, on 2 September 2014 the Zagreb County Court (\u017dupanijski sud u Zagrebu) reversed the first-instance judgment and dismissed the first applicant\u2019s claim. It held that the Fund had not been obliged to pay the pension arrears claimed because it was a beneficiary of the State budget, and that the funds for the payment of disability pensions for the period in question had not been secured in the State budget.","13.On 11 November 2014 the first applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He complained, relying on Article 1 of Protocol No. 1 to the Convention and the relevant provision of the Croatian Constitution guaranteeing the right of ownership, that his property rights had been breached.","14.By a decision of 31 March 2015, the Constitutional Court declared his constitutional complaint inadmissible, finding that the case did not raise any constitutional issue. The Constitutional Court\u2019s decision was served on the first applicant\u2019s representative on 20 April 2015.","15.On 11 October and 12 December 2017 respectively, the first applicant was paid the principal amount of the disability pension arrears for 2007 and 2008 in accordance with the Government\u2019s decision of 12October 2016 (see paragraph 30 below). The principal amount of the disability pension arrears owed to the first applicant on the basis of the Croatian Pension Fund\u2019s decision of 7 July 2006 (see paragraph 6 above) had thus been paid in full on 12 December 2017.","16.On 4 July 2006 the second applicant applied to the Zagreb Office for disability pension on account of his injuries sustained in the war (seeparagraph 5 above).","17.On 7 November 2008 the Zagreb Office granted the second applicant a disability pension with effect from 1 July 2006 in the amount of HRK1,739.31. It also established that the Fund would make the payments from the State budget, and that the disability pension was to be paid retroactively on a monthly basis. As concerns the arrears for the period between 1 July 2006 and 31 October 2008, it established that they would be paid to the second applicant once the funds for that purpose had been allocated in the State budget. The second applicant did not appeal, and the decision became final.","18.On 17 September 2014 the second applicant instituted civil proceedings before the Osijek Municipal Court (Op\u0107inski sud u Osijeku), seeking payment of the disability pension arrears for the period between 1July 2006 and 31 October 2008, together with the statutory default interest. On 25 October 2011 the Fund paid the second applicant the principal amount of the disability pension arrears for 2006, whereupon the second applicant withdrew that part of the claim.","19.By a judgment of 20 January 2015, the Osijek Municipal Court dismissed the second applicant\u2019s claim in its entirety. His claim concerning the payment of the statutory default interest on the disability pension arrears for 2006 was dismissed because the arrears had been paid as soon as the funds for that purpose had been allocated in the State budget. The remaining part of his claim concerning the payment of disability pension arrears for 2007 and 2008 together with the statutory default interest was dismissed on the ground that he had failed to prove that the funds for that purpose had been allocated. The second applicant appealed against that decision.","20.By a judgment of 2 April 2015, the Osijek County Court (\u017dupanijski sud u Osijeku) upheld the first-instance judgment. It noted that the decision on the basis of which the second applicant\u2019s entitlement to receive a disability pension had been recognised had become final (see paragraph 18 above). The second applicant had not therefore been allowed to challenge that decision in the civil proceedings as he had been able to do so in the administrative proceedings. The decision in question had determined that disability pension arrears for the period until 31 October 2008 would become due once the funds had been secured in the State budget. As regards the second applicant\u2019s claim for the payment of the statutory default interest on the pension arrears for 2006, the second-instance court confirmed the first-instance court\u2019s findings. Regarding the arrears for the years 2007 and 2008, according to the second-instance court, they were not due given that the funds for their payment had not yet been secured. Lastly, the second\u2011instance court observed that the Fund had acted in compliance with its final decision of 7 November 2008 (see paragraph 17 above) and that the payment of disability pension without a prior allocation of funds for that purpose would have been unlawful.","21.On 18 May 2015 the second applicant lodged a constitutional complaint with the Constitutional Court. He relied on Article 58 \u00a7 3 of the Croatian Constitution which provides that the State shall dedicate special care to the protection of disabled Croatian war veterans. In particular, he complained that the part of the Fund\u2019s decision of 7 November2008 (seeparagraph 18 above) stating that disability pension arrears were to be paid after the funds had been allocated in the State budget had been unconstitutional, unlawful and contrary to morals. He also claimed that the denial of payment of the disability pension constituted an attack on the most vulnerable members of society, namely persons with disabilities.","22.By a decision of 3 February 2016, the Constitutional Court declared his constitutional complaint inadmissible, finding that the case did not raise any constitutional issue. The Constitutional Court\u2019s decision was served on the second applicant\u2019s representative on 16 February 2016.","23.On 11 May 2017 and 12 December 2017 respectively, the second applicant was paid the principal amount of the disability pension arrears for 2007 and 2008 in accordance with the Government\u2019s decision of 12October 2016 (see paragraph 30 below). The principal amount of the disability pension arrears owed to the second applicant on the basis of the Croatian Pension Fund\u2019s decision of 7 November 2008 (see paragraph 17 above) had thus been paid in full on 12 December 2017.","24.The Government submitted that in the years following the adoption of the decisions recognising the first and the second applicants\u2019 entitlement to disability pension (see paragraphs 7 and 18 above), the monthly amounts of their disability pension had been adjusted and increased in accordance with the relevant domestic legislation. The Government further submitted that the first applicant had been employed in 2012, 2014 and 2015 and that he had received a regular salary in that period. The applicants did not contest these submissions."],"239":["2.The applicant was born in 1958 and lives in Szeged. She was represented by Mr D.A. Karsai, a lawyer practising in Budapest.","3.The Government were represented by their Agent, Mr Z. Tall\u00f3di, of the Ministry of Justice.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant was continuously entitled to various disability benefits from 2005 onwards. On 1 January 2012 she was in receipt of a rehabilitation allowance (rehabilit\u00e1ci\u00f3s j\u00e1rad\u00e9k), in application of section 10(1)-(2) of Act no.LXXXIV of 2007. Its monthly amount was 165,515 Hungarian forints (HUF) (approximately 550 euros (EUR)). Under the law as it stood then, this benefit was available for a maximum of three years which in the applicant\u2019s case expired in July 2012.","6.The applicant filed an application for a benefit for persons with reduced work capacity, which request was determined under Act no. CXCI of 2011 (in force as of 1 January 2012 - \u201cthe Reduced Work Capacity Act\u201d). In the ensuing procedure, the applicant\u2019s health status was medically assessed at 47% with no recommendation of rehabilitation. As of 1 August 2012, disability allowance (rokkants\u00e1gi ell\u00e1t\u00e1s) in the monthly amount of HUF55,800 (EUR 190) was put in place, in application of the then relevant calculation rules.","7.In pursuit of intervening amendments to the Reduced Work Capacity Act, the applicant\u2019s monthly allowance was increased, as of 1 January 2014, to HUF 159,100 (EUR 530). This benefit appears to have been in place ever since."],"240":["2.The applicants\u2019 personal details are set out in the Appendix. The applicants were represented by Mr M.Bakhishov, a lawyer practising in Azerbaijan at the time of lodging the application.","3.The Government were represented by their Agent, Mr \u00c7.\u018fsg\u0259rov.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.According to the applicants, they were recruited in Bosnia and Herzegovina and taken to Azerbaijan, in groups of ten or more, as temporary foreign construction workers, by representatives of Serbaz Design and Construction LLC (\u201cSerbaz\u201d), which, according to the material in the case file, was a company registered in Azerbaijan in 2007 and active in the construction sector until approximately the end of 2009 (see paragraphs 25, 47, 57, 102-103 and 107 below). Most of the applicants stayed in Azerbaijan for periods of six months or longer. The applicants did not specify the exact dates of arrival in and departure from Azerbaijan of each applicant.","6.Serbaz arranged their travel to Azerbaijan by air on the basis of tourist visas, issued on arrival at the Baku airport for periods of thirty days or more. Once they entered Azerbaijan, their passports were taken away by representatives of Serbaz. No individual work permits for them were obtained from the authorities.","7.While in Baku, the applicants lived in five houses transformed into dormitories, in rooms with bunk beds shared by twelve to twenty-four people. The dormitories were not equipped with drinking water, running hot water, gas or heating. The conditions were unsanitary owing to the accumulation of garbage. The applicants were not provided with medical care. They had to comply with strict internal rules established by Serbaz. Notices about those rules, written in their native language, were posted on the walls and doors of the dormitories. While the applicants themselves did not provide a detailed account of all those rules, they noted that they had been taken to work and back by a bus and, at other times, had not been allowed to leave their accommodation without a special written permission issued by representatives of Serbaz. Violations of rules were punished by fines, beatings, detention in \u201ca specially designated place\u201d and physical threats.","8.The applicants worked in the construction of several buildings in Baku, including Buta Palace, the Baku Expo Centre and 28Mall. Some people brought by Serbaz worked in the construction of the Kur Olympics educational and training centre in Mingechevir, commissioned by the Ministry of Youth and Sports.","9.As from May 2009 the applicants were not paid any wages and could not meet the necessities of life. According to them, each worker was deprived of approximately 10,000 US Dollars (USD) in wages.","10.In support of their submissions made to the Court, the applicants submitted a copy of a report prepared by three NGOs from different countries named ASTRA (Serbia), La Strada (Bosnia and Herzegovina) and Cooperation for Social Development (Croatia), in cooperation with an Azerbaijani NGO named the Azerbaijan Migration Centre (Az\u0259rbaycan Miqrasiya M\u0259rk\u0259zi \u2013 \u201cAMC\u201d), published on 27 November 2009 (\u201cthe ASTRA Report\u201d). The contents of the ASTRA Report are summarised in paragraphs 101-117 below.","11.The applicants also submitted a copy of a letter by the Danish Refugee Council of 22 October 2010, addressed to AMC, which stated that in November 2009 the Danish Refugee Council had delivered humanitarian aid, including mostly groceries and other aid, the total value of which was 6,899 Azerbaijani manats (AZN), to migrants from Bosnia and Herzegovina, Serbia and North Macedonia. It specified that the aid had been funded by the International Organisation for Migration, whose representatives, along with the representatives of AMC, participated in the process of delivery of the aid to the migrants.","12.Without presenting their own version of the events, the Government challenged the veracity of the applicants\u2019 factual statements, noting that there was no evidence substantiating their allegations and proving \u201cthe existence\u201d of those facts.","13.Neither the applicants, nor the Government provided any account of the circumstances in which the applicants departed from Azerbaijan.","14.It appears from the material in the case file that in October 2009 several NGOs, including AMC and the three NGOs from the Balkans mentioned in paragraph 10 above, became aware of the applicants\u2019 alleged situation and their grievances concerning Serbaz.","15.It appears that on 22 October 2009 and at an unspecified later date AMC sent letters to the Ministry of Internal Affairs and the Prosecutor General\u2019s Office concerning the situation of Serbaz workers, but received no response (see paragraphs 36-39 below for more detail).","16.It further appears that in October and November 2009 Serbaz paid at least part of the accrued unpaid wages to the workers who were at that time in Azerbaijan, took them to the Baku international airport in groups, handed back their passports and arranged their return to their respective home countries by air. By the end of November 2009, all of the applicants had left Azerbaijan.","17.After the applicants\u2019 return to Bosnia and Herzegovina, MrM.Bakhishov was hired to act as their representative in Azerbaijan.","18.On 19 July 2010 Mr Bakhishov lodged, on behalf of the applicants, a civil claim against Serbaz with the Sabail District Court seeking payment to each applicant of USD 10,000 in unpaid wages and USD 5,000 in respect of non-pecuniary damage caused by alleged \u201cbreaches of their rights and freedoms\u201d. In their claim, they cited a number of provisions of the Constitution, the Labour Code and the Civil Code on, inter alia, protection of human rights and labour rights of foreigners, and prohibition of forced labour and compensation for damages. They also referred to Article 4 of the Convention.","19.The length of the applicants\u2019 factual submissions spanned around one page of typed text. In particular, they made essentially the same submissions as those subsequently made before the Court (see paragraphs 5\u20119 above). In addition, they mentioned one alleged incident involving one Serbaz worker which had occurred in December 2008, noting that this particular worker, M.V., had been fined USD 500 by a Serbaz employee Y.(identified by first name only), for having brought some (apparently unauthorised) food items to Baku, and that subsequently Serbaz officials, B.V. and R.L., had confined him for three days inside a building under construction. The applicants further noted that, because they had not been paid their wages since May 2009, they had to buy groceries on credit and had thus become indebted to nearby shops and that \u201cthose of them who [had] objected to this situation [had been] punished\u201d. Owing to this situation, they had been provided various humanitarian aid by the Danish Refugee Council, the OSCE Baku office, the Baku office of the International Organisation for Migration, ASTRA and AMC.","20.It appears from the copy of the applicants\u2019 civil claim available in the case file that the documentary evidence submitted together with the claim consisted only of copies of passports of twenty-nine of the applicants (all applicants except applicants nos. 7, 10, 13 and 31 in the Appendix). All of those copies showed the main pages of the passports with the bearers\u2019 names, photographs and dates of birth, dates of issue and expiry of the passports, passport numbers and so on, while fourteen of the copies also showed the page with the legible Azerbaijani visa (those fourteen copies concerned applicants nos. 1, 2, 3, 5, 6, 14, 15, 16, 18, 20, 21, 22, 24 and 33 in the Appendix). Of these, the visas issued to applicants nos. 14, 21 and 24, Muamer Kahric, Fehret Mustafica and Drago Peric, were single-entry visas valid for three months and issued in May 2009 or later. The visas issued to applicants nos. 15 and 16, Miodrag Kaurin and Predrag Kaurin, were multiple-entry visas valid for one year and issued in August 2009 and July 2009 respectively. All other visas were single-entry visas valid for one month. Out of these, the visa to applicant no. 18, Sabahudin Makic, was issued in October 2008, while all other visas were issued in May 2009 or later. In addition to the above fourteen copies, copies of two other passports also depicted what might have been an Azerbaijani visa, however these two copies were not fully legible. In so far as legible, a one-month visa to applicant no. 23, Elvedin Opardija, might have been issued in March 2009, while a one-month visa to applicant no. 32, Goran Vujatovic, might have been issued in June 2008. Out of the remaining thirteen copies of passports which did not include copies of visas, four included pages with Serbian or Croatian border exit and\/or entry stamps, corresponding to various months of 2009. The remaining nine copies of passports did not include either copies of pages with visas or border entry or exit stamps.","21.No other evidence or documents, such as any NGOs reports, was listed as evidence submitted in support of the claim. In respect of such other evidence submitted before the first-instance court, the applicants\u2019 representative noted, in his submissions before the Court as well in his subsequent appeal before the Baku Court of Appeal (see paragraph 29 below), that during the first-instance proceedings he had attempted to present to the court a copy of the ASTRA Report and that he had also formally requested the court to send inquiries to the above-mentioned NGOs and international organisations which had provided aid to Serbaz workers before their departure from Azerbaijan. However, according to the lawyer, the court refused to admit the ASTRA Report and rejected his other request (no copies of any interim decisions concerning those requests are available in the case file).","22.The defendant, Serbaz, was represented by a lawyer who submitted that, for the purposes of several large-scale and important construction projects in Azerbaijan, Serbaz had invited a number of foreign workers pursuant to a secondment agreement concluded on 14 May 2007 with its parent company, Acora Business Ltd (\u201cAcora\u201d), a company registered in Anguilla, British West Indies. Seconded workers had been employees of Acora, which had been responsible for payment of their wages and all other employment-related matters. Under the secondment agreement, Serbaz had been responsible only for providing them with accommodation and meals. The lawyer of Serbaz argued that the applicants\u2019 claims against Serbaz in respect of pecuniary and non-pecuniary damage were unsubstantiated.","23.In support of its submissions, Serbaz presented to the court uncertified photocopies of its charter and the secondment agreement between Acora and Serbaz (not available in the case file). It explained that it was no longer in possession of the originals of those documents, because those documents had been \u201ctaken away\u201d from Serbaz by the Acora management and had not been returned. In this connection, Serbaz also submitted a copy of the announcement it had placed in the Vergiler newspaper, published on 28 July 2010 (several days after the applicants had lodged their claim \u2013 see paragraph 18 above). The announcement stated that the originals of Serbaz\u2019s founding document (charter) and tax identification certificate had been lost and were therefore no longer valid.","24.On 21 October 2010 the Sabail District Court dismissed the applicants\u2019 claim.","25.The court noted that, according to the registration certificate issued by the Ministry of Justice, Serbaz had been registered in Azerbaijan on 16March 2007. According to the copy of its charter, it was a wholly-owned subsidiary of Acora, which had been registered in Anguilla on 30 June 2006. Following the loss of the original of the charter, on 11 August 2010 the Baku City Tax Department re-issued to Serbaz certified copies of its \u201cfounding documents\u201d. The court had further regard to the copy of the secondment agreement of 14 May 2007 between Acora and Serbaz, which stated that Acora undertook to second staff to Serbaz for maximum terms of three months. According to the secondment agreement, the seconded staff were considered to be employees of Acora, which was responsible for paying their wages.","26.The court further referred to letters by various authorities, in particular (as summarised in the court\u2019s judgment):","(i)a letter of 19 November 2009 of the Ministry of Taxes, addressed to AMC, where it was stated that Serbaz had submitted tax declarations in the years 2006 to 2009 in respect of the amounts paid for \u201chired labour\u201d. However, that form of declaration did not provide for a name-by-name breakdown of taxes paid in respect of each worker;","(ii)a letter of 17 December 2009 of the Department on Combating Trafficking in Human Beings of the Ministry of Internal Affairs (\u201cthe Anti\u2011Trafficking Department\u201d), where the latter stated that, at an unspecified time, it had reviewed a request by citizens of Bosnia and Herzegovina, Serbia and North Macedonia working at Serbaz, complaining that they had been subjected to human trafficking. However, because the last workers had left Azerbaijan by 26 November 2009, after having received from the company a final settlement of due wages, it had not been possible to investigate their complaints; and","(iii)a letter of 22 December 2009 by the Commissioner for Human Rights (Ombudsman), noting that Serbaz had carried out construction work at various development and construction projects of State significance, that according to information provided by Serbaz it had become necessary to lay off a number of workers owing to the company\u2019s difficult financial situation, and that those workers who had wished to return to their home countries had been paid accrued wages due to them and had been repatriated in a planned manner.","27.Based on the above, the court found that the applicants had been directly employed by Acora and could not be considered as employees of Serbaz, that their wages were to be paid by Acora, that they had been merely seconded to Serbaz, that there had been no employment contracts signed between the applicants and Serbaz, and that the applicants had not presented any evidence to the contrary. Therefore, Serbaz could not be liable for any alleged non-payment of wages or other employment-related complaints. As a limited liability company, neither was it liable for the obligations of its parent company before third persons. Accordingly, the applicants\u2019 claim against Serbaz had neither a statutory, nor a contractual basis, and the claim could be lodged only against Acora.","28.Lastly, the court held that the applicants\u2019 allegations concerning violations of their rights and freedoms were unsubstantiated. It noted that, as it had appeared from the above-mentioned letters of various State authorities, it had not been possible to establish that any rights or freedoms of foreign workers had been breached by Serbaz.","29.On 1 December 2010 (with an addendum on 24 January 2011) the applicants\u2019 lawyer lodged an appeal against the first-instance judgment, essentially reiterating the previous submissions. In addition, he made, inter alia, the following factual and legal submissions:","(i)before the applicants\u2019 departure from Azerbaijan, they had received aid (foodstuffs and medical and other aid) from various international organisations and NGOs mentioned above. He noted that he had lodged a request with the first-instance court to send inquiries to those organisations in order to confirm this fact and to obtain information about the aid provided, however the request had been rejected;","(ii)he had attempted to submit the ASTRA Report to the first-instance court as evidence, but the court had refused to admit it without any substantiation;","(iii)the fact that the applicants had stayed and worked in Azerbaijan on the basis of tourist visas and without work permits had been in breach of the domestic law, in particular the legislation on tourism, and indicated that they had been subjected to forced labour;","(iv)in fact, the applicants had been employees of Serbaz, and not of Acora, and Serbaz had unlawfully subjected them to forced labour without having signed employment contracts in accordance with the requirements of the Constitution, the Labour Code, the Law on labour migration, other Azerbaijani legislation, as well as the international treaties to which Azerbaijan was a party. In this respect, AMC had also inquired from the Ministry of Justice (the authority responsible for registration of legal entities) whether Acora \u201chad really existed\u201d as a company, but had received no reply; and","(v)the first-instance court\u2019s reliance on copies of documents submitted by Serbaz, including the uncertified copy of the secondment agreement, was in breach of the requirements of Article 89 of the Code of Civil Procedure (\u201cthe CCP\u201d) as those documents were inadmissible as evidence.","30.The defendant\u2019s representative reiterated his submissions made before the first-instance court.","31.During the appellate hearing, the court questioned as a witness a representative of AMC. She stated, in general terms, that she had been in the houses where the applicants stayed in Azerbaijan. Workers staying in those houses had complained to her NGO about their living conditions, wages, lack of medical insurance and insufficient food. On an unspecified date she had written, on behalf of 272 of those workers, to the Prosecutor General\u2019s Office about their complaints. Generally, as a result of involvement of AMC, the workers\u2019 situation had improved and they had been provided with better meals and with medical assistance. Eventually, they had been paid their wages, given their documents back and returned to their home countries.","32.On 8 February 2011 the Baku Court of Appeal upheld the first-instance judgment. Besides reiterating the findings of the first-instance court, it also held that the provisions of the Law on labour migration and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (\u201cthe ICRMW\u201d) were not applicable to the applicants, because they concerned lawful \u201cmigrant workers\u201d, whereas the applicants had not been \u201cindividuals who had migrated from one country to another on lawful grounds\u201d. Instead, the applicants had been \u201cforeign employees\u201d who had concluded employment contracts with a foreign company (Acora) abroad and had been temporarily seconded to Azerbaijan to work at the subsidiary of that company. According to Article6 of the Labour Code, the provisions of that Code did not apply to such foreign employees.","33.The appellate court found that the applicants\u2019 complaints concerning breaches of their rights by Serbaz were unsubstantiated. It did not address the applicants\u2019 lawyer\u2019s submissions concerning the first-instance court\u2019s alleged refusal to admit the ASTRA Report and rejection of his other requests.","34.The applicants lodged a cassation appeal, reiterating their arguments. They also noted that, despite the argument by Serbaz and the lower courts\u2019 finding that they had been seconded to Azerbaijan for periods not exceeding three months, they had in fact stayed and worked in Azerbaijan for periods of six months and longer, and that this was reflected in the copies of their passports enclosed with their claim. On 23 September 2011 the Supreme Court upheld the appellate court\u2019s judgment, briefly reiterating the lower court\u2019s findings and reasoning.","35.Copies of the following documents were submitted by the Government of Bosnia and Herzegovina.","36.A copy of an email from AMC to several recipients, including ASTRA, dated 28 December 2010, stated that the president of AMC was sending to the recipients \u201cthe translated version of [AMC\u2019s] letter to the Prosecutor General\u201d.","37.Moreover, an English translation of a letter, without a date, from the president of AMC to the Prosecutor General of Azerbaijan, which was apparently in attachment to the above email, provided essentially the same information about foreign workers of Serbaz as that given by the applicants to the domestic courts (see paragraphs 5-9 and 19 above). The letter further stated that, in AMC\u2019s view, Serbaz officials had committed criminal offences under various provisions of Article 144-1 (trafficking in human beings) of the Criminal Code. It further noted that, on 22 October 2009, AMC had sent a letter to the Ministry of Internal Affairs asking for an investigation of the mentioned circumstances, but that no measures had been taken. Lastly, the Prosecutor General was requested to supervise the matter and take measures.","38.Furthermore, the Government of Bosnia and Herzegovina also submitted an uncertified \u201cunofficial translation\u201d into English of a decision of the Supreme Court of Azerbaijan of 12 July 2010. According to the contents of this document, AMC had lodged a civil claim with the Sabail District Court against the Prosecutor General\u2019s Office and the Ministry of Foreign Affairs, asking the court to order the above authorities to \u201ctake a relevant procedural decision\u201d in connection with AMC\u2019s letter of 22October 2009. AMC was represented in the court proceedings by MrM.Bakhishov. The claim was declared inadmissible by the Sabail District Court on 28 December 2009, which held that such a request could not have been made in the form of a civil claim, but should have been lodged under the procedure of judicial supervision in criminal proceedings under Article 449 of the Code of Criminal Procedure (\u201cthe CCrP\u201d). This inadmissibility decision was upheld by the Baku Court of Appeal on 19January 2010. By decision of 12 July 2010 the Supreme Court quashed the Baku Court of Appeal\u2019s decision and remitted the case for a new examination, finding that there were no procedural decisions delivered in criminal proceedings which could be challenged under Article 449 of the CCrP and that, in such circumstances, the plaintiff could challenge the alleged inactivity of the authorities in civil proceedings.","39.No other information is available in the case file as to the outcome of the proceedings mentioned in the unofficial translation of the above-mentioned decision.","40.The Azerbaijani Government and the applicants did not expressly and specifically comment on the above-mentioned documents and translations submitted by the Government of Bosnia and Herzegovina.","41.The factual circumstances described below transpire from the documents submitted by the Government of Bosnia and Herzegovina, unless otherwise indicated.","42.In late 2009 the Prosecutor\u2019s Office of Bosnia and Herzegovina initiated a criminal investigation in connection with the allegations of forced labour and trafficking by Serbaz management and employees, under Article250(2) (organised crime), Article 185 (establishment of slavery and transport of slaves) and Article 186 (trafficking in human beings) of the Criminal Code of Bosnia and Herzegovina. Eventually, after completion of the investigation, on 7 July 2014 a total of thirteen nationals of Bosnia and Herzegovina were indicted in the framework of these proceedings. Eleven of them were charged with the criminal offences of organised crime in conjunction with trafficking in human beings, one with the organised crime in conjunction with trafficking in human beings and money laundering under Article 209(3) of the Criminal Code, and one with the organised crime in conjunction with money laundering.","(a) The first legal-assistance request","43.On 29 April 2010 the Prosecutor\u2019s Office of Bosnia and Herzegovina sent a legal-assistance request to the relevant authorities of the Republic of Azerbaijan under the European Convention on Mutual Legal Assistance in Criminal Matters (\u201cthe Mutual Assistance Convention\u201d). It informed the Azerbaijani authorities that, at the time the request was made, eleven Bosnia and Herzegovina nationals, including one unidentified, and one unidentified Azerbaijani national (known only by first name, S.) were suspected of having committed the above-mentioned criminal offences. In particular, the Prosecutor\u2019s Office of Bosnia and Herzegovina had received information from former workers of Serbaz that, while they had worked in Azerbaijan, the above-mentioned suspected persons had taken away their travel documents, that the workers had been accommodated in places with inhumane living conditions, that they had been subjected to various unjustified punishments, that their freedom of movement had been restricted, that they had been exposed to mental and sometimes even physical abuse, and that they had not been paid for their work.","44.The Prosecutor\u2019s Office of Bosnia and Herzegovina requested the Azerbaijani authorities to provide, inter alia, the following information:","(i)various information on the business activities of Serbaz in Azerbaijan;","(ii)whether workers from Bosnia and Herzegovina had been registered as foreigners with temporary residence in Azerbaijan and the list of those workers of Serbaz;","(iii)whether the Azerbaijani authorities had received any official reports of unlawful stay in Azerbaijan of any workers from Bosnia and Herzegovina or any complaints from Bosnia and Herzegovina nationals concerning any criminal or other offences or human rights violations and, if so, what action had been taken by the Azerbaijani authorities;","(iv)whether in late 2009 the Azerbaijani authorities had taken control of the construction sites where Serbaz had conducted its activities; and","(v)establishment of identity of the Azerbaijani national, S.","(b) The response to the first legal-assistance request","45.On 11 April 2011 the Embassy of Azerbaijan in Ankara transmitted the response of the Azerbaijani authorities to the Embassy of Bosnia and Herzegovina in Ankara. The response included the following documents:","(i)a letter of 21 October 2010 of the Baku City Prosecutor\u2019s Office forwarding the legal-assistance request, which it had received via the Ministry of Foreign Affairs, to the Baku City Main Police Office of the Ministry of Internal Affairs;","(ii)a letter of 10 November 2010 of the Baku City Main Police Office responding to the above-mentioned letter (informing that there was no information in the centralised database as to whether six of the mentioned Bosnia and Herzegovina nationals had crossed the Azerbaijani border and that one other, M.V., the \u201chead\u201d of Serbaz, had permanent residence in Moscow) and forwarding the request further to the Anti-Trafficking Department of the Ministry of Internal Affairs;","(iii)a letter of 11 November 2010 of the Baku City Prosecutor\u2019s Office addressed to the Operations and Statistical Information Department of the Ministry of Internal Affairs, requesting information on entry to and exit from the territory of Azerbaijan of the Bosnia and Herzegovina nationals mentioned in the legal-assistance request (no response to this letter is available in the case file); and","(iv)a letter of 18 November 2010 of the Anti-Trafficking Department responding to the letters mentioned in points (i) and (ii) above.","46.In the above-mentioned letter of 18 November 2010, the Anti\u2011Trafficking Department provided, inter alia, the information summarised in paragraphs 47-54 below.","47.The Anti-Trafficking Department had examined \u201cinformation and requests\u201d received by it concerning nationals of Bosnia and Herzegovina, Serbia and North Macedonia having been victims of forced labour. It had determined that Serbaz, which was a subsidiary of Acora, had been contracted by certain State authorities and private companies to construct various buildings in Baku and Mingechevir. During the period from 2007 to 2009 around 750 workers from Bosnia and Herzegovina, Serbia and North Macedonia had been taken by Serbaz to Azerbaijan under tourist visas. They had been accommodated in seventeen flats in Baku and ten flats in Mingechevir. In order to save their own money, some of the workers had voluntarily agreed to be accommodated, free of charge, in larger dormitories at Serbaz\u2019s expense.","48.The workers had been provided with return flight tickets, four daily meals, transportation to work sites and back, and medical assistance. On average, each worker had been paid USD 2,000 to USD 2,500 per month. Since there were no embassies of their respective countries in Azerbaijan (the closest embassies being in Ankara) and since any loss of their identity documents in Azerbaijan would have created problems in such a situation, their passports had been taken away by the Serbaz official and Bosnia and Herzegovina national, S.L., for necessary registrations and for safeguarding purposes. Where necessary, the passports had been given back to specific workers and then returned for safeguarding. Several workers had travelled back to their countries for family reasons and had come back to Azerbaijan.","49.After working for a period of six months in Azerbaijan, each worker had the right to one-month\u2019s leave and, at this point, most workers had chosen simply to return to their countries. Two named workers had told the Anti-Trafficking Department that they had returned to work in Azerbaijan for a second time because they were content with the working conditions and wages. Eight named workers had married Azerbaijani women and eventually settled in Azerbaijan.","50.In August and October 2009, two named workers had died from heart problems.","51.As to the examination of alleged violations of some workers\u2019 rights by Serbaz, it was determined that those (unnamed) workers had been reprimanded for violating internal disciplinary rules by consuming alcohol during working hours and avoiding work and had been sent back to their home countries. Moreover, according to statements by the \u201cmajority of workers\u201d, two individuals, including M.V. (the same name as the worker mentioned in the applicants\u2019 civil claim \u2013 see paragraph 19 above), had been sent back for regularly consuming alcohol and breaking the relevant disciplinary rules applicable in the construction industry.","52.During their stay in Azerbaijan, all workers had been in possession of personal mobile phones and could have contacted any country in the world. By the end of 2009, Serbaz had exceeded its construction targets but had found itself in a difficult financial situation as it had run out of available funds. Because of this, it had to lay off staff who had become redundant.","53.In October 2009 diplomats of Serbia and Bosnia and Herzegovina had visited Baku, met with Serbaz workers, inquired about their working and living conditions and had discussions with the Serbaz management concerning payment of due wages and other shortcomings. During those meetings, workers had given the diplomats a collectively signed statement that they had no grievances against the company. All workers who had expressed the wish to return to their countries had been paid their due wages accrued throughout the end of October 2009 and returned back to their countries in an organised manner.","54.Several unnamed \u201cquestioned workers\u201d had stated that they had not been beaten, insulted, exploited or forced to do any work by Serbaz. Accordingly, referring to all of the above, the Anti-Trafficking Department had concluded that the allegations of foreign workers having been subjected to forced labour on the territory of Azerbaijan had not been confirmed.","(c) The second legal-assistance request and the response","55.It appears that in September 2011 the Bosnia and Herzegovina authorities requested further information from the Azerbaijani authorities concerning, apparently, the business relations between Serbaz and the Ministry of Youth and Sports of Azerbaijan.","56.In response, they were provided with a copy of a letter of 18 January 2012 of the Ministry of Youth and Sports addressed to the Nasimi District Prosecutor\u2019s Office of Azerbaijan, providing detailed information, which can be summarised as follows.","57.In March 2007 the Ministry of Youth and Sports concluded its first contract with Serbaz concerning the planned construction of a sports and exhibition complex. Subsequently, it commissioned Serbaz in connection with two other renovation and construction projects and, during the period between 2007 and 2009 inclusively, concluded several contracts with Serbaz concerning those projects and made a number of payments to Serbaz under those contracts. In total, the Ministry paid 54,257,447 Azerbaijani manats (AZN) to Serbaz under those contracts.","(d) The third legal-assistance request and the response","58.In November 2012 the Prosecutor\u2019s Office of Bosnia and Herzegovina sent a third request to the Azerbaijani authorities, informing them that, in addition to and in parallel with the criminal investigation, it was conducting a financial investigation of Serbaz\u2019s activities. It requested information on all transactions linked to the Serbaz account at the International Bank of Azerbaijan in 2009 and 2010. It also inquired whether Serbaz had any other bank accounts in Azerbaijan and, if so, requested similar information on transactions linked to those accounts.","59.In January 2013 the Azerbaijani authorities provided the requested information in the form of printouts of bank statements.","60.According to copies of two judgments submitted by the Government of Bosnia and Herzegovina, on 28 February and 10 July 2017, respectively, the Court of Bosnia and Herzegovina convicted two of the thirteen accused persons (see paragraph 42 above), S.L. and N.T., based on plea bargain agreements. Those judgments have become final.","61.The Court of Bosnia and Herzegovina found that there was sufficient evidence on the basis of the guilty plea and evidence submitted by the prosecution to conclude that those two persons were guilty of the criminal offences of trafficking and organised crime under Articles 186(1) and 250(2) of the Criminal Code of Bosnia and Herzegovina. S.L. was sentenced to one year and nine months\u2019 imprisonment. N.T. received a conditional prison sentence. The facts established by the Court of Bosnia and Herzegovina in those two judgments were as follows.","62.Between August 2007 and November 2009, S.L. and N.T. were part of an organised crime group that exploited nationals of Bosnia and Herzegovina, Serbia and North Macedonia by forcing them to work on construction sites in Azerbaijan. The group carried out these acts under the guise of Serbaz, which was a branch of Acora, a company registered in a British oversees territory. Serbaz entered into contracts with the Ministry of Youth and Sports of Azerbaijan, providing that Serbaz would complete certain construction projects. Victims were told by employees of Serbaz that, if they moved to Azerbaijan for employment, they would receive good salaries, excellent accommodation, health insurance, and food expenses. In addition, their visas would be paid for and their stay in Azerbaijan would be regularised. Serbaz arranged the victims\u2019 flights to Azerbaijan. Once they arrived, the employees of Serbaz seized their travel documents, claiming that this was necessary in order to regularise their residence. The victims\u2019 travel documents were not returned to them, preventing them from leaving the country to return home. Serbaz placed victims in inadequate, overcrowded accommodation, and abused their alien status, their lack of knowledge of the local language and their dependence on Serbaz in order to exploit them for labour. The Serbaz management meted out both physical and psychological punishment on victims, for example, by forcing them to perform strenuous and prolonged physical labour and subjecting them to beatings. Victims were paid wages which were arbitrarily reduced and they were denied the employment benefits promised to them on the ground that they had committed \u201cdisciplinary violations\u201d. Victims were punished and fined for smoking cigarettes, for consuming alcohol outside working hours and for leaving the accommodation. Victims were deprived of their liberty as they were prevented from leaving the accommodation outside of working hours. They were deprived of adequate food, only receiving small portions of low-calorie meals. Many workers lost significant weight while working for Serbaz. Victims were expected to work shifts from twelve hours to as many as twenty-four or thirty-six hours continuously, six or seven days per week. Victims were also deprived of access to adequate healthcare and some developed untreatable illnesses. An atmosphere of fear and dependency was created within Serbaz by those implicated, with the intention of fraudulently depriving the victims of their wages through deductions, fines and denial of adequate accommodation, food and healthcare in order to misappropriate the money transferred to the account of Serbaz for construction projects. It was calculated that at least 5,895,040.67 Bosnia and Herzegovina convertible marks (approximately 3,000,000 euros) had been appropriated by the organised members within Serbaz.","63.The Government of Bosnia and Herzegovina also submitted a statement under oath given by applicant no. 1 in the Appendix, Mr Seudin Zoletic, to the Prosecutor of Bosnia and Herzegovina on 21 March 2012. His statement was essentially in line with the findings set out in the above\u2011mentioned judgments.","64.According to the information publicly available on the internet site of the Court of Bosnia and Herzegovina, on 28 March 2018 the court convicted two other persons, N.C. and S.K., accused in the framework of the above-mentioned criminal proceedings, after a hearing for the pronouncement of criminal sanction pursuant to plea bargain agreements. The court found both of them guilty of the criminal offenses of organised crime and trafficking in human beings. Both defendants were sentenced to one year\u2019s imprisonment, which sentences were replaced at the same hearing with community service for ninety working days. The full text of the judgment was not published. It appears that the convictions have become final.","65.According to the documents submitted by the Government of Bosnia and Herzegovina, by a judgment of 4 December 2019, following a trial, the Court of Bosnia and Herzegovina acquitted the remaining nine accused persons of all charges. Serbaz\u2019s workers who were heard as witnesses testified, for the most part, that promises given to them had mostly been kept, including those concerning the kind of labour they would be doing, their working hours and the salary they would receive. As concerns the salaries, the workers generally stated that they had received the promised payments. The only problematic period appeared to have been around 2009 when the company had encountered financial issues, as a result of which payments had been delayed during that period. The court found, however, that those payments had eventually been made, in some cases after the workers had returned home. The main source of workers\u2019 dissatisfaction had been the lack of increased salary for overtime work. While the court agreed that they had not received an increased compensation, such work had been neither forced nor unpaid. It was also established that several workers had been fined, mostly in relation to alcohol consumption. However, the court held that such fines had been justified given that sobriety was critically important in dangerous settings of construction labour.","66.The court also found that workers had lived in very good conditions in terms of their accommodation. The possibility remained that some workers had been accommodated differently, but there was no evidence that their conditions had been inadequate or that there had been any intent on part of the accused to abuse them. The court further held that workers\u2019 freedom of movement had not been restricted as evidenced by, inter alia, photographs showing them at dinners, barbecues and sporting events. Although the workers had handed over their passports once they had arrived in Azerbaijan, requests to have them back had been mostly allowed (for example, when they had wanted to send money to their families). Relying on copies of Azerbaijani \u201cID cards\u201d of three specifically named workers, none of whom are the applicants in the present case, the court noted that workers had been issued Azerbaijani \u201cID cards\u201d for moving around the country freely.","67.As to the allegations of inadequate food and health care, the court found them to be untrue, unproven or, at least, exaggerated. The majority of workers stated that they had not been subjected to violence or physical punishment. In rare examples where violence might have taken place, it remained undetermined whether it had been instigated by the accused or by workers themselves. The court found that, even if the accused were to be considered the instigators, there was no necessary mens rea for the crime of human trafficking.","68.On 29 January 2021 the Appeals Chamber of the Court of Bosnia and Herzegovina upheld the first-instance judgment and reiterated that, while the case could raise labour law issues, the elements of human trafficking had not been proven."],"241":["1. The applicant, Mr B. \u017b., is a Polish national who was born in 1969 and lives in B. He was represented before the Court by Mr J. Ludziak, a lawyer practising in Wa\u0142brzych.","2. The Polish Government (\u201cthe Government\u201d) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.","The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","Investigation","4. On 3 April 2013 a woman informed the police that the applicant had allegedly sexually abused her daughter, L. (born in 2002).","5. On 9 April 2013 the Zgorzelec District Prosecutor instituted an investigation concerning the sexual abuse of L. The investigation related to the period between 2010 and 2012, when the applicant had allegedly on several occasions sexually abused L., who was his wife\u2019s niece. The incidents had allegedly occurred when the girl had stayed overnight at the applicant\u2019s apartment.","6. On 26 April 2013 the child victim, the prosecutor and an expert in psychology appeared in court. The victim was interviewed in a so-called \u201cblue-room\u201d procedure in the presence of the psychologist. The expert concluded that the victim was emotionally stable and her ability to perceive, remember and reproduce information was intact. She had also demonstrated a strong emotional response indicating that the events had indeed taken place.","7. The applicant did not attend the interview. At that time, he was not formally charged and was not represented by a defence lawyer. He had no opportunity to question L. There was no video recording of the interview.","8. Subsequently, on 26 April 2013, the applicant was charged with rape and two counts of attempted rape of a minor. He did not plead guilty and he provided explanations.","9. On 27 April 2013 the Zgorzelec District Court ordered the applicant\u2019s pre \u2011 trial detention.","10. On 29 April 2013 the applicant appointed a lawyer, R.S., to represent him in the proceedings.","11. On 24 May 2013 an expert psychologist\u2019s opinion was prepared in order to assess the credibility of the victim\u2019s testimony. The expert relied on observations made during the interview of the child victim and tests carried out on 16 May 2013. It was concluded that the 11-year-old victim had been in a balanced mental state and that her manner of presenting the events had been appropriate for her age and corresponded to a child\u2019s ability to perceive and reproduce information.","12. On 20 June 2013, following a request by the prosecutor, four child witnesses were heard by the Zgorzelec District Court: the applicant\u2019s son and three friends of the victim. An expert psychologist was present during the interviews.","13. On 2 September 2013 the applicant appointed another defence lawyer.","The trial","14. On 13 September 2013 a bill of indictment was filed with the Jelenia G\u00f3ra Regional Court. The indictment included a request to read out the victim\u2019s testimony and the child witnesses\u2019 statements which had been given in the \u201cblue room\u201d before the court at the investigative stage of the proceedings.","15. The trial court relied on the testimony obtained from L.\u2019s three friends who were minors, who had confirmed to some extent that L. had told them in 2012 about some elements of the applicant\u2019s behaviour in 2010. The other witnesses refused to testify, as they were close relatives of the applicant and the victim. The court also relied on L.\u2019s diary. Its contents were described by a police officer who had seen it before it had been destroyed by the victim. In addition, the court referred to pornographic photographs that the applicant had kept on his computer, indicating that there was a reasonable suspicion that they might have involved minor children.","16. At a hearing held on 19 November 2013, the court heard evidence from the expert psychologists. The expert who had prepared the opinion of 24 May 2013 confirmed that the victim had been interviewed in the \u201cblue room\u201d and that, given her serious emotional state, psychological tests could not be carried out on the date of the interview, but had had to be carried out later, on 16 May 2013.","17. The court admitted as evidence the record of the victim\u2019s interview and the statements made by the other witnesses who were minors. The parties informed the court that they did not wish to make any further evidentiary submissions.","18. On 4 February 2014 the Jelenia G\u00f3ra Regional Court found the applicant guilty of sexual offences against a minor under 15 years of age comprising one count of rape, which had occurred in October 2010, and two counts of attempted rape, which had occurred between March and October 2012. It imposed a cumulative sentence of four years\u2019 imprisonment on the applicant. He was also prohibited from having any personal contact with the victim for five years.","19. The court summarised L.\u2019s statement, which described how the applicant had behaved when she had stayed at his apartment overnight. The court relied mostly on the first interview of the victim on 26 April 2013. L.\u2019s credibility was confirmed by an expert psychologist who had been present during the interview on 26 April 2013. The victim\u2019s testimony was corroborated by statements made by other witnesses","20. The applicant appealed against the judgment of the Jelenia G\u00f3ra Regional Court on the ground that he had not had an opportunity to question the victim, although there were new circumstances which would have justified this.","21. On 28 August 2014 the Wroc\u0142aw Court of Appeal ( S\u0105d Apelacyjny) upheld that judgment. The court held that the applicant had not submitted a request for a second interview of the victim under Article 185a \u00a7 1 of the Code of Criminal Procedure (\u201cthe CCP\u201d), although he had been entitled to do so. Moreover, his defence lawyer had not demonstrated that there were any new circumstances which would have justified a second interview. The court also noted that the relevant domestic provisions did not lay down a requirement for a video recording of an interview of a victim who was a minor.","22. The applicant lodged a cassation appeal.","23. On 16 April 2015 the Supreme Court (S\u0105d Najwy\u017cszy ) quashed that judgment and remitted the case to the Wroc\u0142aw Court of Appeal. It held that the appellate court should have interviewed the victim again, especially as the first interview had not been recorded despite the clear obligation to do so under Article 147 \u00a7 2 (2) of the CCP.","24. On 11 June 2015 the Wroc\u0142aw Court of Appeal again upheld the judgment given by the Jelenia G\u00f3ra Regional Court on 4 February 2014.","25. During the proceedings, the court commissioned a new expert opinion. In the opinion of 28 May 2015, an expert psychologist found that further questioning would be too traumatic for L. because of her emotional state, which had lasted throughout the three years since the offences had taken place. According to the expert, the victim\u2019s mental state showed an emotional disorder related to post-traumatic stress disorder. The events described by the victim had been traumatic and incriminating and could have long-term negative effects on her mental health and emotional development. The expert recommended that the victim not be interviewed a second time, as this would expose her to excessive trauma.","26. Therefore, the court denied the applicant\u2019s request for L. to be interviewed again. The court referred to the Supreme Court\u2019s judgment of 7 May 2013 (case no. III KK 380\/12), according to which a request by an accused person (under Article 185a of the CCP) for a further interview of a victim who was a minor did not make it necessary to question the victim a second time. Such a request should, in any event, be subject to the general criteria for the admissibility of evidence.","27. On 29 July 2016 the Supreme Court dismissed a further cassation appeal by the applicant. The court stressed that the applicant had not requested that the victim be interviewed again during the proceedings before the first-instance court. It also noted that the Jelenia G\u00f3ra Regional Court had provided other safeguards in order to preserve the applicant\u2019s right to a defence. In particular, L.\u2019s testimony had been read out during the court\u2019s hearing and the applicant had had an opportunity to comment on it. Furthermore, the credibility of L.\u2019s testimony had been confirmed by an expert psychologist. The applicant had had the opportunity to question those findings.","28. The Supreme Court also found that the applicant\u2019s right to examine the victim was not absolute and could be subject to reasonable limitations. The applicant\u2019s right to verify the evidence against him had been in direct conflict with the best interests of the child. The necessity to protect a victim of sexual offence had been further increased as the case involved a child victim, given that children were particularly sensitive and lacked fully formed defence mechanisms.","Relevant domestic law and practice","29. Article 185a of the Code of Criminal Procedure (\u201cthe CCP\u201d), as in force at the material time, provided:","\u201c\u00a7 1 In cases concerning offences described in Chapters XXV and XXVI of the Criminal Code [sexual offences and offences against morality], a victim who, at the time of the hearing, is less than 15 years old should be interviewed only once, unless there are new circumstances which need to be clarified in a separate interview or the accused was not represented by a lawyer during the first interview and so requests.","\u00a7 2 The interview shall be conducted at a court hearing with the participation of an expert psychologist. The prosecutor, defence lawyer and the victim\u2019s representative shall have the right to attend the interview.","\u00a7 3 The record of the interview shall be read out at the trial; if a video or audio recording was made, it shall be played back at the trial as well.\u201d","30. In accordance with Article 147 \u00a7 2 (2) of the CCP, unless there are technical obstacles, the interview of a victim as referred to in Article 185a should be recorded on video.","31. In its judgment of 24 November 2009 (case no. III KK 176\/09) the Supreme Court held:","\u201cIn cases in which victims of the crimes specified in Chapters XXV and XXVI of the Criminal Code are under 15 years old, attempts should be made to ensure that the suspect already has a defence lawyer during the first interview of the victim. The interview under Article 185a should be held after the charges have been brought against the suspect, that is, at the in personam investigation stage of the proceedings, and not at the in rem stage. At that stage it is possible to appoint legal aid counsel for the suspect, if he has not yet appointed his own lawyer. In such situations, in most cases, it will be possible to preserve the single interview of the child victim and the right of the accused to a defence will not be affected.\u201d"],"242":["2.The first applicant was born in 1984. The second applicant was born in 1958. The third applicant was born in 1991 and the fourth applicant was born in 1959. The applicants are relatives and they all live in Smolice. They were represented by Mr \u0141.Brydak, a lawyer practising in Warsaw.","3.The Government were represented by their Agent, MsJ.Chrzanowska, and subsequently by Mr J.Sobczak, of the Ministry of Foreign Affairs.","4.The facts of the case, as established by the domestic courts in the course of the civil proceedings described below and as submitted by the parties, may be summarised as follows.","5.Since an unspecified date the applicant family has lived in a detached house situated in Smolice at no. 11 Cegielniana Street, several metres from national road no. 14 (\u201cthe N14 road\u201d).","6.The N14 road runs parallel to the applicants\u2019 street through the middle of the neighbouring town of Stryk\u00f3w, which has approximately 3,500inhabitants. Where the N14 road runs through Stryk\u00f3w, it is known as Warszawska Street.","7.In the southern part of Stryk\u00f3w, approximately 1 km from the applicants\u2019 house, the A2 motorway crosses the N14 road. The intersection of the two roads is known as \u201cthe Stryk\u00f3w II junction\u201d.","8.The A2 motorway forms part of the Second European Transport Corridor, linking Hanover, Berlin, Frankfurt, Poznan, Warsaw, Brest, Minsk and Moscow. It runs through all of central Poland and is one of the most important roads in the country.","9.The Polish part of the motorway, which bears the name \u201cLibertyMotorway\u201d (Autostrada Wolno\u015bci), was built in sections over several years, with construction starting in 2001. It currently comprises eleven sections totalling 475 km. Tolls are payable on some sections of the motorway, and other sections are toll-free.","10.One of the motorway\u2019s sections runs between Konin and Stryk\u00f3w and is 103 km long. It currently has three lanes which are operational. It was free to use this section of the A2 motorway from 2006 until the middle of 2011. Currently, the toll costs approximately 2.50 euros (EUR).","11.When it was built in 2006, the section of the motorway in question ended at the Stryk\u00f3w II junction, and all the motorway traffic was temporarily diverted directly onto the N14 road.","12.Stryk\u00f3w is under the administration of the local authorities of \u0141\u00f3dzkie Province (Wojew\u00f3dztwo \u0142\u00f3dzkie).","13.The 1994 local master plan (plan zagospodarowania przestrzennego) for Stryk\u00f3w, and the later versions of that plan, feature amotorway project with a ring road around the city.","14.The first phase of the two-tier procedure concerning the construction of the A2 motorway started on 25 August 1995 when the Head of the Central Planning Office (Centralny Urz\u0105d Planowania) issued a decision indicating where the motorway would be located.","15.On 13 February 1996 the Minister for the Environment decided on the course of the relevant section of the motorway, between the towns of Wrze\u015bnia (near Konin) and Stryk\u00f3w.","16.The second phase of the procedure, namely administrative proceedings concerning the location of the relevant section of the A2motorway, were initiated on 18 April 1996.","17.On 26 April 1996 the mayor of Stryk\u00f3w (burmistrz miasta-gminy) raised a formal objection (sprzeciw) to a plan to locate the temporary end point of the A2 motorway (the future Stryk\u00f3w II junction) on the territory of the Stryk\u00f3w Municipality (gmina).","18.Among other things, the mayor suggested two alternative locations for the section\u2019s end point, namely \u0141owicz, belonging to \u0141\u00f3dzkie Province (Wojew\u00f3dztwo \u0141\u00f3dzkie) , and \u017byrard\u00f3w, belonging to Masovian Province (Wojew\u00f3dztwo Mazowieckie). The mayor argued that the traffic on national road no. 71 and regional road no. 712, both passing through Stryk\u00f3w, was already very heavy. Redirecting the motorway traffic through the town, without putting in place any alternative road connection, was likely to obstruct the local road traffic and create environmental risks.","19.On 23 July 1996 the Governor of \u0141\u00f3dzkie Province (wojewoda) decided that the relevant section of the A2 motorway would run through the southern part of the town of Stryk\u00f3w.","20.To that end, the governor set out various technical specifications relating to the A2 motorway project.","21.In particular, the following actions had to be undertaken during the planning phase. The so-called \u201czone of nuisance\u201d (strefa uci\u0105\u017cliwo\u015bci) was to be determined in the light of the results of an enhanced and extensive environmental impact assessment (nasilona i pog\u0142\u0119biona ocena oddzia\u0142ywania na \u015brodowisko). Extensive environmental studies were to be carried out in relation to the problematic areas. The construction project was to reflect the results of those studies. Residential areas along the motorway were to be protected from noise by means of anti-noise screens and other measures. Areas along the motorway were to be forested. At each phase of the project, the owners of properties affected by the motorway were to be protected from the burden of nuisance (noise, air and water pollution) if the latter was of an above-average degree (ponad przeci\u0119tn\u0105 miar\u0119).","22.The governor instructed the investor that the relevant application for a construction permit would have to be accompanied by an assessment of the results of local noise monitoring, as well as an extended environmental impact assessment (pog\u0142\u0119biona ocena oddzia\u0142ywania na \u015brodowisko).","23.The governor considered himself precluded from examining the objection raised by the mayor of Stryk\u00f3w because, as he explained, in the light of the relevant provisions of the Law on Paid Motorways, a decision on the location of a motorway could not go beyond the scope of the decision issued by the Head of the Central Planning Office on 25 August 1995, which only concerned the section of the motorway within the limits of \u0141\u00f3dzkie Province. The governor found that the development of the motorway did have to be organised section by section. Waiting for the section after Stryk\u00f3w to be planned before approving the location of the section up to Stryk\u00f3w would make the whole project unprofitable for the investor.","24.The above-mentioned decision of 23 July 1996 did not address the question of rerouting the motorway traffic via the N14 road.","25.It appears that in 2002 a number of environmental impact assessment reports were produced. These documents have not been submitted to the Court.","26.In the course of a public consultation on the motorway project, one association for the protection of the environment made a series of submissions and was ultimately admitted as a party to the administrative proceedings in question. In particular, the association asked that studies be carried out to measure the impact of the motorway on the health of the population concerned. To that end, they asked that the health of residents living within 1 km of the motorway be monitored. The association also asked that individual vulnerable residents be protected from the impact of the future motorway traffic.","27.On 12 February 2003, considering the results of an assessment of the auditory effects of the motorway on the health of the population concerned, the Governor of \u0141\u00f3dzkie Province issued an ordinance. The governor thus declared the part of the section of the motorway which was located directly before Stryk\u00f3w a reduced traffic zone (obszar ograniczonego u\u017cytkowania).","28.On 26 March 2003 the Governor of \u0141\u00f3dzkie Province approved the investor\u2019s construction project for the relevant section of the A2 motorway and issued the General Directorate of National Roads and Motorways (Generalna Dyrekcja Dr\u00f3g Krajowych i Autostrad, hereinafter \u201cthe roads and motorways authority\u201d) with a building permit. As to the environmental association\u2019s request to have the health of the population concerned monitored, the governor observed that no legal provisions existed to regulate such action. Overall, the governor considered that the project offered solutions ensuring the protection of the environment.","29.The above-mentioned decision did not address the question of rerouting the motorway traffic via the N14 road.","30.On 14 July 2003 the Chief Inspector of Construction Supervision (G\u0142\u00f3wny Inspektor Nadzoru Budowlanego) rejected as out of time an appeal lodged by the environmental association against the decision to issue the construction permit.","31.On 25 July 2006 the Inspector of Construction Supervision for \u0141\u00f3dzkie Province permitted the roads and motorways authority to use that section of the motorway. That decision did not address the question of rerouting the motorway traffic via the N14 road.","32.On 26 July 2006 the roads and motorways authority opened the new, two-lane, section of the A2 motorway running between the cities of Konin and Stryk\u00f3w (the Stryk\u00f3w II junction).","33.The motorway was then directly connected to the N14 road leading North, to Warsaw and \u0141\u00f3d\u017a.","34.Following the opening of the section of the A2 motorway in question, traffic in the centre of Stryk\u00f3w, especially that made up of trucks, seriously increased.","35.An impact assessment carried out in September 2006 by the Warsaw Institute for Environmental Protection (Instytut Ochrony \u015arodowiska) revealed that noise levels on the N14 road significantly exceeded the statutory norms.","36.Protests erupted and the residents of Stryk\u00f3w and the surrounding area called on the authorities to urgently limit the traffic on the N14 road, especially at night.","37.Between 2006 and 2017 the applicants did not lodge any complaints about the noise, vibrations or air pollution with the local authorities responsible for environmental protection. They also did not ask for any specific pollution or noise assessment to be carried out in respect of their property.","38.As a result of the protests and complaints lodged by other residents of Stryk\u00f3w, on 10 August 2006 the roads and motorways authority presented to the city council (Rada Miasta) a plan for the fast-track construction of a ring road to link the A2 motorway with the N14 road outside the city limits. In the alternative, a 1.7-km extension of the A2 motorway beyond the southern city limits was proposed, in order to connect it with the nearby A1motorway.","39.In September 2006 noise monitoring was carried out by privately commissioned experts of the Institute for Environmental Protection (InstytutOchrony \u015arodowiska). Their report was drawn up on 15January2007.","40.According to that report, the average number of vehicles passing through Stryk\u00f3w via the N14 road was 15,381 during the day and 2,818 at night, as measured in September 2006. The noise levels measured in Stryk\u00f3w at the same time significantly exceeded the national norms which at the relevant time were: 60 dB during the day and 50 dB at night (seeparagraph 108 below). In particular, the noise levels in residential areas exceeded the norms by between 9.9 dB (LAeq \u2013 the equivalent continuous sound level) and 12.7 dB (LAeq) during the day, and by between 18.5 dB (LAeq) and 21.3 dB (LAeq) at night.","41.The experts observed that the main cause of the noise was truck traffic, which constituted between 40 and 47% of all the traffic in Stryk\u00f3w.","They considered that such a large number of trucks was highly unusual for traffic within a city.","42.The experts concluded that the noise should not be tolerated in the long term, even assuming that the situation was temporary. They recommended that stringent measures be taken in order to move a large portion of the traffic beyond the city limits.","43.Also in 2006, air and water pollution monitoring was carried out by the Chief Inspectorate for Environmental Protection (G\u0142\u00f3wny Inspektorat Ochrony \u015arodowiska). This revealed, inter alia, that the annual average concentration of sulphur dioxide and nitrogen dioxide (pollutants which contribute to acid deposition and eutrophication respectively, which in turn can lead to changes in soil and water quality) on Warszawska Street was 8.9\u03bcg\/m3 and 33.1 \u03bcg\/m3 (micrograms per cubic metre) respectively. Onascale of I-V, the river waters in that area were rated IV, \u201cunsatisfactory\u201d. The water in the Stryk\u00f3w well was rated II, \u201cgoodquality\u201d.","44.In October 2006 the surface of Warszawska Street in Stryk\u00f3w was renovated.","45.In December 2006 the roads and motorways authority reorganised the A2 motorway in order to alleviate the nuisance posed by the increased traffic in Stryk\u00f3w. In particular, alternative roads to Warsaw were indicated to motorway users by means of traffic signs.","46.According to one of the experts appointed by the Warsaw Regional Court (S\u0105d Okr\u0119gowy), the above-described measure brought the traffic levels on the N14 road back down to those from before 2006, but did not eliminate the noise emitted by the trucks, especially at night (seealsoparagraph 78 below). Measurements taken by the expert in September2008 revealed that the N14 road was still affected by heavy and fluid traffic which included a significant number of trucks. In the Government\u2019s submission, that could be partly caused by the development of industrial zones and service areas in Stryk\u00f3w.","47.The court-appointed expert further observed that on 31 August 2006 the project concerning the ad hoc traffic restrictions and reorganisation (seeparagraph 45 above) had been approved (by the authority in charge of road and bridge management, Biuro Zarzadzania Drogami i Mostami), despite its various shortcomings. In particular, contrary to the applicable law, the project had not contained certain maps, a technical description (including the specifications of the road and the traffic), a timeline for its implementation, or the name of the project designer. On 15 September 2006 the project had been registered with the Office of Motorway Construction (Biuro Zarz\u0105dzania Budow\u0105 Autostrady) so that it could be implemented, with the implementation date set for 1 October 2006. In view of the great number of custom-made traffic signs which had had to be prepared, the reorganisation of traffic had taken place in December 2006.","48.The roads and motorways authority decided not to opt for anti-noise screens along the N14 road, because the space along Warszawska Street was insufficient and access to multiple individual plots along the street could not be blocked or visually obstructed.","49.The operation of the motorway resulted in the creation of various logistics centres and large warehouses in the Smolice and Stryk\u00f3w areas. Ageneral increase in traffic was thus recorded on the streets of these towns.","50.According to a report drawn up on 30 November 2010 by another expert appointed by the Warsaw Regional Court, the roads and motorways authority could not have predicted what level of traffic in Stryk\u00f3w would result from the operation of that section of the A2 motorway. Truck traffic was generated by not only the operation of the motorway, but also the operation of other national and regional roads in the vicinity of Stryk\u00f3w.","51.In January 2008 a post-construction environmental impact assessment report was issued in respect of the part of the A2 motorway between D\u0105bie and Stryk\u00f3w (57 km before Stryk\u00f3w).","52.The following relevant information pertaining to the area of the Stryk\u00f3w II junction featured in that document.","53.The measurements carried out in various directions on the motorway revealed the following traffic statistics.","54.On 21 August 2007 the number of light vehicles per hour ranged from 282 to 475 between 6 a.m. and 10 p.m., and from 114 to 206 between 10 p.m. and 6 a.m. The number of heavy vehicles (such as trucks or buses) per hour ranged from 191 to 296 between 6 a.m. and 10 p.m., and from 162 to 234 between 10 p.m. and 6 a.m. The percentage of heavy vehicles in the traffic peaked at 47.5% between 6 a.m. and 10 p.m., and at 64.4% between 10 p.m. and 6 a.m. The total number of vehicles counted in the twenty-four hours was 12,499.","55.On 23 August 2007 the number of light vehicles per hour ranged from 220 to 416 between 6 a.m. and 10 p.m., and from 94 to 190 from 10p.m. to 6 a.m. The number of heavy vehicles (such as trucks or buses) per hour ranged from 195 to 302 between 6 a.m. and 10 p.m., and from 175 to 230 between 10 p.m. and 6 a.m. The percentage of heavy vehicles in the traffic peaked at 48.8% between 6 a.m. and 10 p.m., and 66.9% between 10p.m. and 6 a.m. The total number of vehicles counted in the twenty-four hours was 11,587.","56.Overall, the average number of vehicles in the area of the Stryk\u00f3w II junction was 11,244 between 6 a.m. and 10 p.m., and 3,006 between 10p.m. and 6 a.m., with a total number of 14,250 vehicles every twenty\u2011four hours. Nearly 52% of that traffic consisted of heavy vehicles.","57.The measurements carried out specifically in respect of the junction between the A2 motorway and the N14 road revealed the following numbers of vehicles: 14,552 light vehicles every twenty-four hours; 5,934 heavy vehicles every twenty-four hours; 12,718 light vehicles between 6a.m. and 10 p.m.; 4,320 heavy vehicles between 6 a.m. and 10 p.m.; atotal of 17,038 vehicles between 6a.m. and 10p.m.; 1,834 light vehicles between 10 p.m. and 6 a.m.; 1,614 heavy vehicles between 10 p.m. and 6a.m.; and a total of 3,448 vehicles between 10p.m. and 6a.m.","58.The average speed was 105 km\/h for light vehicles and 75 km\/h for heavy vehicles.","59.The measurements of noise levels which were carried out mainly on sunny days in August 2007, at a distance of 25 to 800 metres from the edge of the road and at a height of 4 metres, revealed that the noise ranged from 49.3to 61.8 dB during the day, and from 47.7 to 59.6 dB at night. The statutory noise levels were exceeded during the day at three out of eighteen measuring stations (by up to 1.8 dB) and at night at fifteen out of eighteen stations (by up to 9.6 dB). During the monitoring, it was impossible to separate the noise coming from the A2 motorway from that produced by other sources, such as local activities or local roads.","60.Average annual levels of air pollutants for 2006 were as follows: 16\u201120 \u00b5g\/m3 of nitrogen dioxide (the statutory limit of 40 \u00b5g\/m3 was not exceeded); 9-15 \u00b5g\/m3 of sulphur dioxide (the statutory limit of 20 \u00b5g\/m3 was not exceeded); 16-18 \u00b5g\/m3 of PM10 (the statutory limit of 40 \u00b5g\/m3 was not exceeded); 1.5-2.5 \u00b5g\/m3 of benzo(a)pyrene (the statutory limit of 5\u00b5g\/m3 was not exceeded); and 0.05 \u00b5g\/m3 of lead (the statutory limit of 0.5 \u00b5g\/m3 was not exceeded).","61.The 2008environmental impact assessment report also stated that thirty-four anti-noise screens, the height of which varied from 2.5 to 4.5metres, and five two-metre-high anti-noise ramparts had been put in place along the section of the A2 motorway between Konin and Stryk\u00f3w.","62.The section of the motorway in question was equipped with watertight ditches and devices which partly cleaned road sludge before it was drained away.","63.To reduce the nitrogen dioxide pollution which was expected to be emitted by the motorway traffic, trees and bushes had been planted along the motorway. The report\u2019s authors concluded that because that greenery had been planted only recently, it was not yet fulfilling its filtering function.","64.As the section of the motorway between Konin and the Stryk\u00f3w II junction was being developed, the authorities were developing the project concerning the 1.7-km extension of the motorway through the southern outskirts of Stryk\u00f3w, between the Stryk\u00f3w II and Stryk\u00f3w I junctions.","65.The environmental impact assessment for that part of the A2motorway was completed in September 2003. Following the issuance of a number of permits, works began in late 2006. They were to be completed in the autumn of 2008. The works then slowed down because of either alack of government funding or, in the applicants\u2019 submission, the roads and motorways authority\u2019s persistent failure to make use of the State and European Union funds allocated to the project.","66.On 22 December 2008 the above-mentioned extension to the A2 motorway was opened for use.","67.The extension proved to effectively reduce the traffic made up of heavy vehicles on the N14 road, especially in the area where the applicants\u2019 house was located. The applicants confirmed that the traffic had dropped to an acceptable level.","68.A privately commissioned report drawn up by psychologists on 15September 2008 stated that the life of people living on Warszawska Street and on nearby streets had been very badly affected by the increased traffic on the N14 road.","69.Firstly, Warszawska Street was very difficult to cross.","70.Secondly, vehicles emitted a great deal of noise and exhaust fumes and caused vibrations and other disturbance. That nuisance persisted practically twenty-four hours a day. As a result, the residents could not open windows, and damage was caused to their houses. The residents lived with serious stress caused by the audible noise and (even more harmful) infrasound coming from trucks and other vehicles with large engines. Thiswas compounded by the high concentration of exhaust fumes and vibrations.","71.The experts considered that severe and persistent noise could constitute a biological stress factor causing physiological changes in humans. Such biological stress would initially cause an alert reaction of the human body and, in the event of a strong stimulus (noise over 60 dB), could lead to death. Longer exposure to the stimulus caused insomnia, irreversible exhaustion, and also led to death. It was widely accepted among scientists that, because of the particularly strong neural pathways between the hearing apparatus and the brain, persistent audible noise caused not only hearing loss but also mental discomfort, and nervous breakdowns and disorders in internal organs and brain functions, such as cardiological ailments, strokes, breathlessness, dizziness, high blood pressure and the risk of ulcers. Exposing children to noise could cause attention deficit disorders and hyperactivity, learning difficulties, aggression, withdrawal, apathy, insomnia, bed-wetting and night-time fears. Children living in a noisy environment were also very susceptible to drops in their overall immunity, allergies, arthrosis, skin disease, ulcers, nausea, panic attacks, constipation or diarrhoea. The symptoms among adults included problems with blood circulation and digestion, back pain, asthma, allergies, hair loss, depression, tobacco and alcohol addiction, aggression, depression and infertility.","72.Ultrasound, which mostly affected women and young people, caused, among other things, earache, hearing and speech impairments, stomach and heart pain, and breathing and hormone production disorders.","73.Vibrations could lead to the development of a so-called \u201cvibrationssyndrome\u201d, which seriously affected various bodily functions.","74.The experts concluded that life for the residents of Warszawska Street in Stryk\u00f3w was dreadful, and they risked severe psychophysiological ailments, illnesses and perhaps even a decrease in their life expectancy. All residents complained of interrupted sleep because of unbearable noise, infrasound and vibrations. Some of them had developed autoimmune diseases linked to stress.","75.On 1 April 2009 the applicants brought a civil action against the State Treasury and the national roads and motorways authority, seeking compensation for damage to their physical and mental health and the infringement of their right to a peaceful and undisturbed private and family life, home and feeling of security (case no. XXV C 408\/09). They sought 15,000Polish zlotys (PLN \u2013 approximately EUR 3,750) per person in compensation.","76.On 7 April 2009 the Warsaw Regional Court joined the applicants\u2019 case to an action which had been lodged one year earlier by a certain B.W., whose house was located in the vicinity of the applicants\u2019 plot, along the N14 road. That claimant sought compensation in the amount of PLN60,000 (approximately EUR 15,000). B.W also applied for the respondent to be ordered to reorganise the traffic by barring 25-tonne vehicles from entering the town of Stryk\u00f3w He withdrew that claim on 20 February 2009.","77.On 22 November 2011 the Warsaw Regional Court dismissed the claimants\u2019 action for compensation. In view of the unprecedented nature of the action, the applicants were not ordered to bear any costs of the proceedings.","78.The regional court based its rulings on the following pieces of evidence: various reports from experts in traffic engineering and acoustics, including the report of 30 November 2010 (described in paragraphs79-87 below) and submissions made by the claimants and by specialists employed at the relevant time by the roads and motorways authority. The court rejected the report prepared by the Chief Inspectorate for Environmental Protection based on the results of the monitoring of air pollution in the area (see paragraph 43 above). The court considered that, even though it was common knowledge that increased traffic led to increased emissions of exhaust fumes, the exact cause of the air pollution in the area in question was unknown. The court also considered it unnecessary to examine the results of the noise monitoring report commissioned by the claimants (seeparagraph 39 above), or to obtain expert evidence on the effects of the noise on the applicants\u2019 mental health.","79.The report drawn up on 30 November 2010 by the court-appointed expert in road traffic engineering was produced to answer the question of whether the roads and motorways authority had taken adequate and sufficient measures in the way that they had organised traffic in Stryk\u00f3w. The report contained the following observations and conclusions, in so far as relevant.","80.The A2 motorway and the N14 road were, at the material time, apreferred route for drivers. That section of the roads was toll-free and the technical specifications of these roads were better than those on the alternative roads, the N2 and N72.","81.Intensified traffic on the N14 road was likely to persist until: (i) the opening of the next part of the road, between the Stryk\u00f3w II and Stryk\u00f3w I junctions (the part which was to link the A2 motorway with the A1motorway passing from the South to the North, just east of Stryk\u00f3w); (ii) the putting in place of ad hoc traffic restrictions; or (iii) the charging of tolls for use of the section of the A2 motorway between Konin and Stryk\u00f3w.","82.The traffic on the N14 road, after the A2 motorway had been connected to it, was estimated to have increased by 35% in comparison with 2005. Truck traffic on the N14 road had peaked in 2006 at 23% of the total traffic that year. That represented a 13% increase compared with previous years.","83.In line with the local master plan, the expansion of buildings with acommercial function (namely warehouses) had been noted in and around Stryk\u00f3w. That had, in all likelihood, generated the increased traffic made up of trucks and other delivery vehicles on the N14 road.","84.The extension to the motorway that had opened on 22 December 2008 was a temporary construction which did not meet the technical specifications of a motorway. It was also not equivalent to the ring road which had initially been planned to take the traffic out of the centre of Stryk\u00f3w. The court-appointed expert concluded that there was a high probability that, despite the operation of that extension, Warszawska Street had remained the main transit route for traffic diverging from the A2 motorway, including trucks. That road was the shortest connection from the South to the North, and also the only road leading to the warehouses and large commercial buildings in Stryk\u00f3w. Moreover, the 2008 extension had had a tendency to become congested. Overall, however, the operation of that temporary extension had contributed to the decrease in traffic on Warszawska Street after December 2008.","85.Because of intensified traffic between 2006 and December 2008, Stryk\u00f3w residents had been likely to experience difficulties in crossing Warszawska Street on foot and driving onto that street from their individual plots. When traffic on that road congested, the local population had been exposed to high levels of noise and emissions from the exhaust fumes of vehicles immobilised in traffic jams. Local traffic had been greatly disturbed on such occasions, and aggression among road users had frequently been recorded.","86.The expert\u2019s overall conclusion was as follows.","The intensity of the traffic which had driven down Warszawska Street in Stryk\u00f3w after 26 July 2006 could not have been fully predicted prior to the opening of the section of the A2 motorway from Konin.","With the exception of the shortcomings in the 2006 project concerning adhoc traffic restrictions (see paragraph 44 above), the roads and motorways authority had been diligent in responding to the problem of the increase in traffic. In particular, the authority had engaged in (i) regular traffic monitoring; (ii) the ad hoc reorganisation of traffic in December 2006, with the idea for that measure being presented two weeks after the section of the motorway had begun to operate; and (iii) the planning and construction of the motorway\u2019s extension through the Stryk\u00f3w I junction in December 2008.","87.The shortage of funds had made it impossible for the roads and motorways authority to construct a ring road around Stryk\u00f3w, as featured in the local master plan. In the light of that fact, the expert concluded that extending the motorway through the Stryk\u00f3w I junction offered an effective solution to the problem in the shortest possible time.","88.The regional court considered that the applicants\u2019 right to health and the peaceful enjoyment of their home had been infringed because the noise in their places of residence caused by traffic had gone above the statutory norms. The court held, however, that the authorities had been quick to acknowledge the problem brought to their attention by the area\u2019s residents and to implement an ad hoc measure whereby a portion of the traffic had been diverted to the capital via other roads. The authorities had also been swift to prepare and start implementing the plan for a long-term solution, namely the construction of a road extension outside of Stryk\u00f3w. As of December 2008 those measures had significantly reduced the traffic in the town. In view of these considerations, the court concluded that the authorities had acted in accordance with the law, namely section 20 of the Act of 21 March 1985 on public roads (see below), and thus could not be held liable for the infringement of the applicants\u2019 personal rights. That element distinguished the case from the judgment of the Supreme Court (S\u0105d Najwy\u017cszy) of 23 February 2001 (II CKN 394\/00, see below), in which it had been held that a local government\u2019s tolerance of noise levels which exceeded the national norms was unlawful and could constitute an infringement of personal rights. Lastly, the court observed that compensation could not be awarded under Article 417 of the Civil Code, because the applicants had not proved that the harm resulting from the increased traffic between 2006 and December 2008 had made them unfit for work.","89.On 19 December 2012 the Warsaw Court of Appeal (S\u0105dApelacyjny) dismissed an appeal by the applicants without charging them any court fees.","90.The appellate court employed the following reasoning.","91.The construction of the A2 motorway had pursued a legitimate general interest of society and had received media attention. Because of that, it was understandable that the motorway could not simply have been cut off before reaching Stryk\u00f3w, and that traffic had had to be directed through the town. The increased traffic had indeed caused nuisance to the residents of the area, but it had been the only available solution which had been technically sound. The N14 road had been in operation prior to the motorway, and \u201cnobody had promised ... that [the motorway\u2019s] construction [would] eliminate or reduce traffic on that road\u201d. The fact that traffic, especially truck traffic, had increased had been as a result of matters beyond the power of the roads and motorways authority. In particular, that authority had not been responsible for drivers\u2019 choices and could not predict which type of vehicles would use the N14 road instead of the alternative roads indicated from the city of Konin. It had also been impossible to predict the cars\u2019 impact on air pollution, namely how many cars driving down Warszawska Street would not be equipped with a catalytic converter or would have non-functioning exhaust pipes, and what their speed would be and how often they would use their brakes. The roads and motorways authority had acted in compliance with the law, in that it had taken firstly adhoc and then long-term measures to alleviate the nuisance caused by the traffic.","92.The appellate judgment was served on the applicants on 24May2013. No cassation appeal was available to the applicants because the value of their claim was lower than the statutory threshold of PLN50,000 (see paragraph 105 below). It appears that a cassation appeal lodged by B.W., with whom they had been joint claimants, was rejected on procedural grounds."],"243":["2.Details about the applicants are indicated in the appended table. They live in Kyiv. Ms Terekhova, who was granted legal aid, was represented by Ms V. P. Lebid and Mr M. O. Tarakhkalo, lawyers from the Ukrainian Helsinki Human Rights Union, Kyiv. The other three applicants were represented by Mr S.A. Zayets, a lawyer from the Regional Centre for Human Rights, Kyiv, and Mr. J. Evans and Mr K. Levine, lawyers from the European Human Rights Advocacy Centre, London.","3.The Government were represented by their Agent, Mr I. Lishchyna, from the Ministry of Justice.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicants had lived respectively in Crimea and Donetsk and had had their registered places of residence there. After Crimea came under de facto Russian jurisdiction and the conflict in Eastern Ukraine started (hereinafter - events of 2014), all four applicants moved to Kyiv and registered there as IDPs on various dates in 2014 and 2015 (see the appended table for individual details) and were issued with IDP certificates. All of them maintained that their respective registered places of residence continued to be located in Crimea and Donetsk, as was indicated in their \u201cinternal passports\u201d (identity documents for use in Ukraine \u2013 hereafter \u201cpassports\u201d), while their IDP certificates indicated that the place of their actual residence was in fact Kyiv.","6.They all lodged applications to be included in the lists of voters who would participate in local elections in Kyiv scheduled to take place in October-November 2015, but their applications were dismissed on the grounds that their respective registered places of residence were not in Kyiv but elsewhere.","7.On 25 October 2015 one of the applicants, Ms Terekhova, lodged a complaint with the Central Electoral Commission. She alleged, inter alia, that her right to vote had been violated, given the fact that, because she was an IDP, she had not been allowed to participate in local elections.","8.The Central Electoral Commission replied that under section 3 of the Local Election Act, a person\u2019s place of residence for the purposes of voting in local elections was to be determined according to the registered place of residence, as indicated in the person\u2019s passport. It furthermore noted that elections on the territories that were outside the Government\u2019s control could be conducted only after the regaining of such control and the restoration of constitutional order on those territories; as soon as Parliament decided to conduct elections there, Ms Terekhova would be able to realise her right to vote in local elections.","9.All four applicants lodged administrative claims with their respective local courts in Kyiv seeking to oblige the respective electoral commissions to include them in the voters\u2019 lists for the local elections. On various dates the first-instance courts dismissed the applicants\u2019 claims, and those decisions were upheld on appeal by the Kyiv City Court of Appeal (for all relevant dates and names of the relevant institutions see the appended table).","10.All the applicants in their administrative claims submitted that they had been forced to move to Kyiv from their respective registered places of residence because of the events of 2014. In Kyiv they were registered as IDPs, and on their IDP certificates their places of actual residence were indicated as being located in Kyiv. The applicants noted that they had a right to vote in the upcoming elections as they met all the criteria set forth in Article70 of the Constitution. They also considered that since they resided in Kyiv (as confirmed by their IDP certificates) they \u201cbelonged\u201d to the respective territorial communities there. They pointed to the provisions of the Ensuring the Rights and Freedoms of Internally Displaced Persons Act, which guaranteed them the right to participate in free elections \u2013 including local elections (see paragraph 24 below).","11.The first-instance courts, with reference to the domestic legislation described below, reiterated that the right to vote in local elections in Ukraine was conferred on citizens of Ukraine who \u201cbelonged\u201d to their respective local communities and who resided within their respective voting constituencies. A person\u2019s residence within his local constituency and \u201cbelonging\u201d (\u043d\u0430\u043b\u0435\u0436\u043d\u0456\u0441\u0442\u044c) to his respective community was confirmed by his registered place of residence, as indicated in his passport. The courts noted that everyone enjoyed the right to freedom of movement and of choice of residence but was required by law to register at any new place of residence, with that new information to be recorded in one\u2019s passport. As to IDPs, their temporary place of residence was indicated in their respective IDP certificates, but without that residence having to be registered in their passports. Under the Local Elections Act (see relevant provisions in paragraphs14 and 15 below), persons who were not in the constituency of their electoral address on the day of elections could not participate in local elections. The applicants had their registered places of residence as being, respectively, in Crimea and Donetsk and had their electoral addresses there. Therefore, they could not participate in local elections in Kyiv. Their administrative claims were accordingly dismissed.","12.The appellate court reiterated the reasoning of the first-instance courts and noted that whether or not a citizen \u201cbelonged\u201d to a particular territorial community (\u0442\u0435\u0440\u0438\u0442\u043e\u0440\u0456\u0430\u043b\u044c\u043d\u0430 \u0433\u0440\u043e\u043c\u0430\u0434\u0430) and whether his residence was within that community was determined by his registered place of residence. The appellate court furthermore noted that a person\u2019s place of residence, as indicated in his passport, had a key legal meaning for the purposes of deciding disputes regarding whether a person could be included in a list of voters, since a voter\u2019s registered place of residence defined that person\u2019s election address. The court concluded that the applicants did not \u201cbelong\u201d to their respective territorial communities in Kyiv as they did not have their registered places of residence there, and that they were therefore not entitled to vote in those communities\u2019 local elections. Decisions of the court of appeal were final and not subject to any further appeal."],"244":["1. A list of the applicants is set out in the appendix.","2. The Russian Government (\u201cthe Government\u201d) were represented initially by Mr G. Matyushkin, then by Mr M. Galperin, the Representatives of the Russian Federation to the European Court of Human Rights, and lately by their successor in that office, Mr. M. Vinogradov.","The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. Each of the applicants was a claimant or defendant in civil proceedings. Besides the parties, prosecutors participated in those proceedings with the aim of defending public interests or interests of vulnerable persons.","Relevant domestic law and practiceCode of Civil Procedure","Code of Civil Procedure","Code of Civil Procedure","5. The Code of Civil Procedure of the Russian Federation (\u201cthe CCvP\u201d) reads as follows:","Article 45. Participation of a prosecutor in the proceedings","\u201c1. A prosecutor shall be entitled to lodge an application with the court for the protection of rights, freedoms and lawful interests of citizens, of an indefinite group of persons or of the interests of the Russian Federation, subjects of the Russian Federation and municipal entities ...","2. A prosecutor, who has lodged an application, shall enjoy all the procedural rights and bear all the procedural obligations of the plaintiff, except for the right to conclude a friendly settlement agreement and the obligation to pay the court fees ...","3. A prosecutor shall join the proceedings and give an opinion in cases concerning eviction, reinstatement at work, [or] compensation for harm caused to life or health, and in other cases provided for by the present Code and other federal laws, for the purpose of exercising his [or her] powers. Non-appearance of a prosecutor [who has been] notified of the time and place of the hearing shall not constitute an impediment to the hearing of [such a] case.\u201d","Article 131. Form and content of a statement of claim","\u201c3. In the statement of claim lodged by a prosecutor for the protection of the interests of the Russian Federation, subjects of the Russian Federation and municipal entities or for the protection of the rights, freedoms and lawful interests of an indefinite group of persons, there should be indicated what exactly their interests are, which right has been violated, and there should also be a reference to the law or other legal instrument, providing for [such] means of protection of these interests. In case of a prosecutor\u2019s application for the protection of the lawful interests of a citizen, the statement of claim shall contain either the grounds of impossibility for the citizen to bring an action on his [or her] own or indication that the citizen has applied to the prosecutor.\u201d","6. Article 189 of the CCvP provides that once the prosecutor has given an opinion, the parties shall be afforded an opportunity to submit additional explanations.","The Prosecutor\u2019s Offices Act (Federal Law no. 2202-1 of 17 January 1992)","7. The relevant provisions of the Prosecutor\u2019s Offices Act were previously reproduced in the case Batsanina v. Russia, no. 3932\/02, \u00a7 12, 26 May 2009.","Clarifications by the Constitutional Court","8. The Ruling of the Constitutional Court of the Russian Federation no. 831-O-O of 18 December 2007 (point 2.1) clarifies that the prosecutor\u2019s opinion cannot predetermine the position of the court on a particular case which shall be determined on the basis of all the circumstances of the case, as well as impartial, comprehensive and complete examination of the arguments and evidence submitted by the parties. In civil cases the prosecutor acts in the public interest for the protection of socially vulnerable people. The prosecutor\u2019s participation in such cases does not prevent the parties from fully exercising their rights; it does not upset the balance between the parties, nor does it infringe the principle of adversarial procedure.","Relevant Council of Europe documents","9. The provisions of the relevant Council of Europe documents were previously reproduced in the case Batsanina, cited above, \u00a7\u00a7 15-17."],"245":["2.The applicant was born in 1979 and lives in Vilnius. She was represented by Mr L. Biek\u0161a, a lawyer practising in Vilnius.","3.The Government were represented by their Agent, MsK.Bubnyt\u0117\u2011\u0160irmen\u0117.","4.The applicant is a single mother of a daughter born in 2012. In 2016 she applied for a housing subsidy available to \u201cyoung families\u201d of low income when buying their first home (see paragraph 24 below). The municipal authorities refused to grant her the subsidy on the grounds that the Law on Assistance for Home Acquisition or Rent (hereinafter \u201cthe Housing Assistance Act\u201d) defined \u201cyoung families\u201d as those in which both spouses, or the single parent, were not older than thirty-five years (see paragraph25 below), whereas the applicant, at the time of the lodging of her application for the subsidy, had been thirty-seven years old.","5.The applicant and her daughter lodged a complaint with the administrative courts. They argued that the refusal to grant the applicant the housing subsidy had been based solely on the grounds of her age and had therefore amounted to direct discrimination. They submitted that discrimination on the grounds of age was prohibited by the Constitution and the Charter of Fundamental Rights of the European Union, and thus the municipal authorities should not have applied the domestic legal provision, which was contrary to legal instruments of higher rank. They argued that the burden of proof was on the State authorities to justify the difference in treatment of persons on the grounds of their age.","6.During the hearing before the Vilnius Regional Administrative Court the applicant also asked it to refer the matter to the Constitutional Court, in order to determine whether the relevant provision of the Housing Assistance Act was in compliance with the Constitution.","7.On 26 April 2017 the Vilnius Regional Administrative Court dismissed the complaint lodged by the applicant and her daughter. It held that the legislature had the discretion to decide which categories of persons or families were entitled to which kinds of welfare benefits. That discretion included the right to define which families were considered \u201cyoung\u201d for the purpose of obtaining housing subsidies. In the court\u2019s view, the claimants\u2019 arguments concerning discrimination had been based on assumptions and speculation. In accordance with the principle of non-discrimination, similar situations had to be treated similarly and different situations had to be treated differently. On those grounds, the court considered that the State had the right to determine the age of persons who could constitute \u201cyoung families\u201d, and the impugned decision had been lawful and justified.","8.The applicant and her daughter lodged an appeal against that decision. They submitted that the lower court had not addressed their arguments concerning the alleged conflict between the Housing Assistance Act and the Constitution and EU law (see paragraph 5 above). They also submitted that the impugned provisions of the Housing Assistance Act were contrary to Articles 8 and 14 of the Convention. Lastly, they argued that the court had not shifted the burden onto the State to prove that the above-mentioned different treatment on the basis of age was justified and that it had not addressed their request to refer the matter to the Constitutional Court (see paragraph 6 above).","9.On 6 December 2018 the Supreme Administrative Court dismissed the appeal lodged by the applicant and her daughter. It referred to the case-law of the Constitutional Court concerning the principle of non\u2011discrimination (see paragraphs 32-34 below) and the duty of the State to provide protection and support for families, taking account of their needs and of the available resources (see paragraphs 36-38 below). It held that the legislature had wide discretion in the area of social security and welfare and could determine the categories of persons who were entitled to receive particular welfare benefits, as well as the grounds and conditions for receiving them; the legislature also had an obligation to have due regard to the needs of the most vulnerable groups in society (see paragraph38 below). When deciding on those matters, the State had the right to take into account various social, demographic and economic factors, as well as its financial capabilities.","10.The Supreme Administrative Court furthermore observed that the Housing Assistance Act provided for the affording of assistance to various categories of families, and their eligibility for such assistance was not always linked to their age (see paragraph 23 above). Moreover, the Act also provided for the affording of assistance to various other categories of persons, such as persons who lived without parental care (lik\u0119 be t\u0117v\u0173 globos asmenys) until they reached the age of thirty-five, families with three or more children, disabled individuals or families that included disabled individuals, and families in which one of the parents was deceased (see paragraph 24 below). This demonstrated that the legislature had chosen to support certain vulnerable groups by providing them with housing assistance.","11.The court also noted that several other relevant legal instruments also defined \u201cyoung families\u201d as those in which both spouses or parents, or the single parent, were not older than thirty-five. It observed that, according to the available statistical data, in 2016 the average age of Lithuanian nationals who got married was thirty-four years for men and thirty-one years for women, and that between 2012 and 2016 the number of women who had given birth at the age of thirty-five had grown significantly.","12.The Supreme Administrative Court concluded that all the aforementioned circumstances demonstrated that the refusal to provide the applicant with the housing subsidy available to young families had been justified. It also stated that the applicant and her daughter had not provided any arguments that the child\u2019s interests could be protected only by them obtaining that specific type of social assistance.","13.Lastly, the Supreme Administrative Court stated that it was not bound by the claimants\u2019 request to refer the matter to the Constitutional Court and that such a referral would be made only if the court itself had doubts that the relevant legal provisions may be in conflict with the Constitution (see paragraph 18 below). In the present case, it considered that there were no grounds to doubt that Article2\u00a76 of the Housing Assistance Act (see paragraph 25 below) complied with the Constitution. The court held that the claimants had not provided any legal arguments to demonstrate that the legislature, when defining the notion of \u201cyoung families\u201d and determining a specific age limit, had failed to respect the provisions of the Constitution."],"246":["2.The first applicant, Mr Toplak, was born in 1937 and lived in Maribor. The second applicant, Mr Mrak, was born in 1983 and lives in Ljubljana. They were represented by Mr S. Vesenjak, a lawyer practising in Maribor.","3.The Government were represented by their Agent, Mrs B. Jovin Hrastnik.","4.On 19 July 2019 the first applicant died. His daughters, Nata\u0161a Toplak and Renata Toplak, informed the Court that they wished to continue the proceedings before the Court in his stead.","5.The facts of the case, as submitted by the parties, may be summarised as follows.","6.The applicants were, together with a number of other voters with disabilities, involved in numerous sets of proceedings aimed at improving the access of people with disabilities to the voting process. The sets of proceedings detailed below constitute only a minor part of this larger endeavour, in which the claimants were mainly unsuccessful before the Slovenian courts, except for petitions for constitutional review leading to the Constitutional Court\u2019s decision of 2014, which is summarised below (see paragraphs 43-45 below).","7.Both applicants had muscular dystrophy and used electric wheelchairs for mobility. The first applicant\u2019s condition deteriorated in 2018, which meant that he was no longer able to hold a pen.","8.In 2014 the Constitutional Court ruled that the legislature should, within two years, adopt legal provisions ensuring the accessibility of all polling stations to people with disabilities (see paragraphs 43-45 below). In 2015 almost 50% of polling stations in Slovenia were physically accessible to people with disabilities.","9.Further to the decision by the National Assembly of 4 November 2015, the National Election Commission (\u201cthe National Commission\u201d) announced that a referendum concerning amendments to the Marriage and Family Relations Act would be held on 20 December 2015 (\u201cthe 2015 Referendum\u201d). The announcement provided, inter alia, that voters with disabilities who considered that the polling station of their local electoral area was not accessible to them should inform their district election commission (\u201cthe district commission\u201d) in advance of their intention to vote at a polling station that was accessible to people with disabilities or at a polling station with an available voting machine.","10.On 16 November 2015 the National Commission received a letter from the first applicant in which he requested that the polling station for his local electoral area be accessible for people with disabilities. He specified the required width of the path and ramp, the angle of the ramp, and its bearing capacity, and requested access to the voting booth, voting table and ballot box. The National Commission forwarded his letter to the district commission in Maribor, asking it to verify whether the polling station indicated in the first applicant\u2019s request could be accessed without obstacles by people with disabilities and, if not, whether it would be possible to install a ramp in accordance with the technical requirements specified by the first applicant.","11.On 21 November 2015 the first applicant, together with another person, \u0160., brought an action in the Administrative Court against the National Commission seeking (i) the provision of access for people with disabilities at their local polling station and (ii) the ordering of an interim measure in order to ensure the accessibility of that polling station during the upcoming referendum. The first applicant and \u0160. argued that all voters, including those with a disability, had the right to vote at the polling station for their local electoral area and requested that the Administrative Court order the State to ensure on the day of the referendum (20 December 2015), and for all subsequent referendums and elections, that their respective polling stations would be wheelchair-accessible; this would entail the making of all necessary adjustments to voting booths and ballot boxes. They set out specific details concerning wheelchair accessibility. On 3 December 2015, the claimants specified that the action had been brought under section 4 of the Administrative Disputes Act (see paragraph 48 below) in respect of an alleged violation of human rights.","12.In the meantime, on 23 November 2015 the National Commission asked a private company to provide it with a price quote for installing a ramp for the entrance to the first applicant\u2019s local polling station. The following day the director of the National Commission informed the first applicant that his polling station would be equipped with a ramp. On the same day, his nephew replied on behalf of the first applicant, asking for confirmation that other conditions set out in his request would also be complied with.","13.On 4 December 2015 the Administrative Court issued a judgment and decision dismissing the action and rejecting a motion for an interim measure. It pointed out that the two-year deadline for remedying the incompatibility of the National Assembly Elections Act (\u201cthe Elections Act\u201d) with the Constitution imposed on the legislature by the Constitutional Court\u2019s decision had not yet expired (see paragraphs 43-45 below). It was furthermore noted that the claimants\u2019 access to their local polling station had been ensured and that their assumptions regarding the inaccessibility of voting booths and ballot boxes were based only on certain past experiences. Certain ad hoc adaptations could be made in practice (regardless of the existing regulatory framework), and it was up to the electoral bodies to do what was necessary to secure the rights of voters. The court referred to the correspondence between the first applicant, the National Commission and the district commission and found that the first applicant had failed to prove an interference with his right to vote.","14.On 10 December 2015 \u2013 that is to say prior to the 2015 Referendum \u2013 the first applicant and \u0160. lodged an appeal. They also requested the Supreme Court to issue an interim decision ordering the necessary adjustments to be made before the 2015 Referendum. The request for the interim decision was dismissed on 16 December 2015 by the Supreme Court, which found, inter alia, that the defendant had undertaken to secure the conditions necessary for the appellants to exercise their right to vote, in line with the Constitution and the relevant legislation. On 5 July 2016 the Supreme Court rejected the appeal lodged by the first applicant and \u0160., explaining that, under section 4 of the Administrative Disputes Act, the judicial protection of human rights was possible only if a different form of judicial protection had not already been available. In the instant case, however, protection had already been offered under the Referendums and Popular Initiatives Act (\u201cthe Referendums Act\u201d) (see paragraph 46 below). Furthermore, the judicial protection provided under section 4 of the Administrative Disputes Act was not intended to protect against future actions that could potentially interfere with a person\u2019s legal position, but rather only related to acts that had already occurred.","15.On 12 September 2016 the first applicant and \u0160. lodged a constitutional complaint (no. Up 771\/16). They alleged, inter alia, that the Administrative Court had violated their right to non-discrimination in the exercise of their right to participate in the management of public affairs (as protected, respectively, by Articles 14 and 44 of the Constitution) and that the Supreme Court had denied them the only effective remedy. At the same time the first applicant lodged a petition for a review of the constitutionality of several statutes that allegedly failed to provide for the speedy resolution of election-related disputes.","16.On 5 December 2018 the Constitutional Court decided not to accept the constitutional complaint for consideration. It specified that the petition for constitutional review would be dealt with separately (see paragraph 32 below). The decision was served on the first applicant on 31 December 2018.","17.On 16 November 2015 the National Commission received a letter from the second applicant requesting that the polling station for his local electoral area be made accessible to people with disabilities. In his letter, the second applicant set out the changes that would be necessary in order to render the polling station accessible to people with disabilities; those specifications were similar to those set out by the first applicant (see paragraph 10 above). The director of the National Commission contacted the second applicant\u2019s district commission, which replied that the second applicant\u2019s local polling station, which was a school, would be accessible to wheelchair users. After being informed of this the second applicant pointed out that the school was surrounded by a fence and that the ballot boxes were normally on a higher floor, which could be accessed only by stairs. In further correspondence, the district commission affirmed that the polling station was accessible and submitted photos in this regard. The second applicant noticed that the photos showed a side entry, which previously he had not been able to use, and proposed that a visit of the school be carried out in order to verify the accessibility of the premises.","18.On 17 December 2015 an official note was made by the district commission, which indicated that the second applicant had made a visit and that it had been established that access to the polling station had been arranged directly from the parking area through the side entry to the school, which was equipped with a ramp. There was also a ramp leading to the floor on which the polling rooms were situated. It was also noted that the school had in the past had a pupil with a disability who had used the ramp and that all other voters would be entering the building this way in order to prevent any kind of discrimination. This polling station was subsequently also formally declared accessible to people with disabilities.","19.In the light of the lack of proper access for people with disabilities to their local polling station (in contravention of both section 9 of the Equality of Opportunities for People with Disabilities Act and the Constitution), on 17December 2015 the second applicant, together with another person, A., brought an action in the Administrative Court seeking the provision of access to their local polling station for people with disabilities, and lodged with the Administrative Court an application for the ordering of an interim measure against the National Commission and the district commissions concerned. The second applicant and A. submitted arguments similar to those submitted by the first applicant and \u0160. (see paragraph 11 above).","20.On 18 December, the Administrative Court dismissed both the action (after examining it under section 4 of the Administrative Disputes Act) and the request for an interim measure. Referring to the above-mentioned correspondence between the second applicant and the electoral bodies, the visit that had been carried out, and the submissions made by the National Commission during the proceedings, the court found that the defendants had ensured that the second applicant\u2019s local polling station would be accessible to people with disabilities. It also noted that upon receiving a request from a voter with disabilities, the relevant authorities were under an obligation to do everything within their power to ensure necessary and appropriate changes and adaptations, provided that they did not impose a disproportionate or unnecessary burden. This was so regardless of whether such an obligation was set out also by the relevant legislation.","21.On 4 January 2016, the second applicant and A. lodged an appeal. They described the situation at the polling station on the day of the 2015 Referendum. The second applicant indicated that he had been able to access the polling station with his wheelchair, mark and deposit his ballot paper, and leave. However, he alleged that the ramp by the entrance had been steep and thus not in compliance with accessibility standards. In his submissions, he stated that he had been afraid when using the ramp, and that when he had been using the ramp he had needed assistance from a passer-by. He asserted that he had suffered discrimination because he had not been able to make his way along the ramp without the assistance of others.","22.On 5 July 2016 the Supreme Court rejected the appeal on the same grounds as those cited as justification for the rejection of the appeal lodged by the first applicant and \u0160. (see paragraph 14 above).","23.On 12 September 2016 the second applicant and A. lodged a constitutional complaint (no. Up-770\/16) containing similar arguments to those submitted by the first applicant and \u0160. in their own constitutional complaint (see paragraph 15 above). They alleged, inter alia, that on the day of the 2015 Referendum their polling stations had been inaccessible.","24.On 28 January 2019, the Constitutional Court decided not to accept for consideration the constitutional complaint of the second applicant and A. The decision was served on the second applicant on 5 February 2019.","25.Both applicants voted in the 2015 Referendum. In his application form, the first applicant did not submit any details concerning his voting. In his observations he acknowledged that he had voted. He furthermore explained that he had been accompanied by several people, including his daughter and nephew, who had recorded a video and published it on Facebook on the same day. According to the first applicant, owing to the positioning of the furniture he had only been able to cast his vote in the middle of the room on the table with several people around him, which had compromised the secrecy of his vote. The election committee had allegedly not permitted the voting booths to be moved. Photos published on Facebook by the first applicant\u2019s nephew, Mr Jurij Toplak, and subsequently submitted by the first applicant\u2019s representative show the first applicant proceeding independently up the ramp leading to the polling station. They also show him inside the polling station at a table divided by a partition. The table appears to be of a height that would have allowed the first applicant to access the material left on it. One person is standing next to him. It is unclear whether that person was helping the first applicant or was marking his own ballot paper. One more person can be seen on the other side of the table (possibly behind the partition). The photos on Facebook were accompanied by text that read: \u201cMy uncle, Franc Toplak, voted in an accessible polling station today. One polling station adjusted, 3000 to go.\u201d","26.The second applicant submitted that he had had to wait outside the polling situation until he had asked a passer-by to push him up the ramp, which was situated at the back entrance. He seemed, moreover, to imply that the voting booth and ballot box that he had used had not been adjusted to the needs of people with disabilities.","27.Under the Elections Act, as amended by the 2017 Amendment (see paragraph 42 below), all polling stations were required to be accessible to people with disabilities as of 1 February 2018. It is unclear what, other than entry to the polling station, the required level of accessibility involved. The Government submitted that, in general, the furniture inside polling stations (tables and chairs) was of standard dimensions, partitions designed to secure the secrecy of the voting procedure were positioned on the floor and the ballot boxes were placed on tables.","28.On 9 April 2019 the National Commission announced that elections to choose Slovenian members of the European Parliament (\u201cthe 2019 EP Elections\u201d) would be held on 26 May 2019. The announcement included the information that voters with disabilities should inform their local district commission if they wished to vote by post. It also provided that those who could not vote at the polling station owing to illness should inform the relevant district commission by 22May 2019 of their intention to vote from home. Requests to be permitted to vote by mail or from home could also be made via a dedicated Internet site.","29.The first applicant submitted in his application form that a ramp had been installed but that in all other aspects the polling station had not been rendered accessible. The second applicant submitted that his polling station \u201c[had not been] made accessible in any way\u201d. They both submitted that they had been unable to \u201center a little polling room with a wheelchair [owing] to a narrow door entry [and that] the ballot box and the desk [had been] too high and inaccessible, and no accessible voting methods or equipment [had been] available\u201d. It can be seen from the submissions lodged by the first applicant, in reply to those of the Government, that he did not participate in the 2019 EP Election owing to a deterioration in his condition. According to him, he had no longer been able to use a pen and had not wished to be assisted by another person.","30.The Government submitted copies of the voting directory from the second applicant\u2019s local polling station; the directory contained the name and signature of the second applicant, who had apparently voted in the election. The records of the election committee responsible for the second applicant\u2019s local polling station do not contain any complaint made by participants.","31.On 28 September 2018 a number of petitioners, including the second applicant, requested to be allowed to join the proceedings in respect of the petition for constitutional review lodged by the first applicant (see paragraphs 15 and 16 above). Together with the first applicant, they submitted additional arguments concerning, inter alia, sections 79 and 79a of the Elections Act (see paragraphs 40 and 42 below). They submitted that the Constitutional Court\u2019s 2014 decision, which required all polling stations to be accessible to people with disabilities (see paragraphs 43-45 below), had been implemented by the amendments to the Elections Act as far as the physical accessibility of polling stations was concerned (see paragraph 42 below), but not with respect to voting machines. They emphasised that proceedings that concerned elections and were initiated in a timely manner should be completed before the election day in question. They also submitted that polling stations could be properly adjusted before local elections that were to take place in two months\u2019 time.","32.On 21 February 2019 the Constitutional Court rejected as manifestly ill-founded the petition for constitutional review in so far as it concerned the issue of a speedy resolution of election-related disputes. As regards sections 79 and 79a of the Elections Act (see paragraphs 38-42 below) and the issue of the non-implementation of the Constitutional Court\u2019s 2014 decision, it noted that the conditions for suspending the effect of the above-mentioned provisions had not been met but that consideration of the petition would be given absolute priority.","33.On 22 October 2020 the Constitutional Court delivered a decision in which it examined the implementation of its 2014 decision (see paragraphs 43-45 below). It found that the Elections Act, as amended by the 2017 Amendment (see paragraph 42 below), was not incompatible with the Constitution. It noted that section 79a, which had been inserted into the Elections Act by the 2017 Amendment, explicitly provided that polling stations must be accessible to people with disabilities and that the petitioners themselves had considered that as regards this aspect the Constitutional Court\u2019s 2014 decision had been properly implemented. As regards the availability of voting machines, it noted that the use of voting machines had been ended by the 2017 Amendment and that a new assessment of the compatibility of the election legislation with the Constitution was required in that respect. The Constitutional Court noted that the petitioners\u2019 main argument was that the legislature should have adopted measures that would allow every person with a disability to vote autonomously, under conditions of secrecy, and at the nearest polling station to his or her residence without having to give advance notice of his or her attendance.","34.The Constitutional Court cited: the United Nations Convention on the Rights of People with Disabilities (\u201cthe CRPD\u201d) \u2013 especially Article 29 thereof; the Venice Commission\u2019s Revised Interpretative Declaration to the Code of Good Practice in Electoral Matters on the Participation of People with Disabilities in Elections; and the Parliamentary Assembly of the Council of Europe\u2019s resolution entitled \u201cThe political rights of people with disabilities: a democratic issue\u201d (see paragraphs 54, 58, 59 and 60-62 below).","35.The Constitutional Court took account of the arguments submitted by the Government and the National Assembly \u2013 specifically, that only a very small number (in 2015 only 0.2% of people with disabilities) had used voting machines, that such machines could not facilitate voting by people suffering from all types of disability, that their use was very expensive and that a new mode of voting for people with disabilities (namely, voting by post) had been introduced by the 2017 Amendment. The Constitutional Court also noted that the Elections Act also provided for assisted voting and that that mode of voting was also envisaged in the above-mentioned international instruments. Referring to the relevant provisions of the Elections Act and the Penal Code, the Constitutional Court stated that the law should be interpreted as imposing on the person assisting the person with a disability the obligation to respect the secrecy of the ballot. It also noted that election committees (see paragraphs 38 and 40 below) had little scope to exercise discretion in taking decisions. When confronted by a person with a disability an election committee had merely \u2013 as regards the voting assistants \u2013 to ascertain his or her identity and to note his or her name in its records. The Constitutional Court furthermore examined the regulation governing voting at home, which it considered to be applicable also to people with disabilities. The Constitutional Court, referring to a \u201creasonable accommodation\u201d (primerna prilagoditev), noted that the legislature was under the obligation to ensure that people with disabilities could as much as possible exercise their right to vote in person, autonomously, in conditions of secrecy and at a polling station, but that the legislature was not under an obligation to adopt measures that would impose a disproportionate or unnecessary burden.","36.The Constitutional Court went on to note that a 2018 decision of the United Nations Committee on the Rights of People with Disabilities (\u201cthe CRPD Committee\u201d) concerning a case brought by Fiona Given against Australia (see paragraph 57 below), on which the petitioners had relied, could not be understood as having done away with the concept of a \u201cdisproportionate burden\u201d. It furthermore noted that only three European countries (Belgium, France and Bulgaria) continued to use voting machines to a different extent, and that voting with the assistance of another person was a method of voting permitted in almost all European countries. The Constitutional Court concluded that assisted voting, as regulated in Slovenia, was in line with the principle of reasonable accommodation."],"247":["2.The applicant was born in 1960 and is currently detained in Regensdorf Prison. He was represented by Mr L.Erni, a lawyer practising in Zurich.","3.The Government were represented by their Agent, Mr A. Chablais, of the Federal Office of Justice.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.By a judgment of 6\/12 May 1993, as amended on 4 July 1995 following a remittal, the Zurich Jury Court (Geschworenengericht) convicted the applicant, inter alia, of murder and of intentional manslaughter and sentenced him to twenty years\u2019 imprisonment. The court found that the applicant had murdered a man in a particularly violent manner in 1983. Owing to his personality disorder and his alcohol intoxication, as diagnosed by psychiatric expert G., his capacity to appreciate the wrongfulness of the act had been substantially diminished. Furthermore, in 1990, the applicant, acting again with substantially diminished criminal responsibility, had induced his then partner to strangle an acquaintance in their flat; no reason for the offence could be established. He had subsequently dismembered the woman\u2019s corpse.","6.The court further decided not to order the applicant\u2019s preventive detention under Article 43 \u00a7 1, sub-paragraph 2, of the Criminal Code (see paragraph 20 below). Having regard to the fact that preventive detention in practice rarely lasted more than five years, it considered that the aim of protecting society from the applicant, who was very dangerous as a result of his abnormal mental state which the expert had considered difficult to treat, could be better attained by the execution of a long term of imprisonment.","7.The applicant served his sentence until 8 October 2010. Thereafter, he was placed in detention on remand pending a decision on the Public Prosecution Office\u2019s application lodged in 2009 for the applicant\u2019s subsequent preventive detention under Article 65 \u00a7 2 of the Criminal Code, which had entered into force in 2007 (see paragraph 23 below).","8.On 2 March 2012 the Federal Court, contrary to the lower courts, found that there were new facts permitting a reopening of the proceedings to the detriment of the applicant under Article 65 \u00a72 of the Criminal Code. A new report issued in May 2009 by psychiatric expert P., using new analytic methods which had not yet existed in the 1990s, had concluded that the applicant had not been addicted to alcohol at the time of his offences, but had suffered from a dissocial personality disorder and from psychopathy, which could not be treated and led to a very high risk that the applicant would commit further violent offences. These new facts had not, and could not have been, known to the Jury Court when convicting the applicant. The proceedings were subsequently reopened.","9.In the reopened proceedings, on 15 August 2013 the Zurich District Court ordered the applicant\u2019s subsequent preventive detention under Article65 \u00a7 2 read in conjunction with Article 64 \u00a7 1 (b) of the Criminal Code and section 2 \u00a7 1 (a) of the transitional provisions of the 13December 2002 amendment to the Criminal Code read in conjunction with 43 \u00a7 1, sub-paragraph 2, of the previous version of the Criminal Code (see paragraphs20-21 and 23-24 below).","10.Having regard to a new report drawn up by psychiatric expert R. in June 2013, as well as the report drawn up by expert P. in 2009 (see paragraph 8 above), it found that the requirements for the preventive detention of the applicant had been met at the time of the applicant\u2019s conviction in 1993 and were also currently met. The applicant, who had committed two capital offences, had suffered and was still suffering from a serious mental disorder, notably a serious dissocial personality disorder and psychopathy. There was a very high risk that the applicant would commit further serious violent offences owing to that disorder if released. A psychiatric treatment under Article 59 of the Criminal Code (see paragraphs19 and 21 below) had little, if any, prospects of success.","11.After the Zurich Court of Appeal had dismissed the applicant\u2019s appeal on 16 July 2014, the Federal Court, on 16 December 2015, equally dismissed the applicant\u2019s further appeal.","12.As for the compliance of the retrospective application of measures such as the order for a person\u2019s subsequent preventive detention under Article65 \u00a7 2 of the Criminal Code with Article 7 \u00a7 1 of the Convention the Federal Court found that the prohibition on retrospective punishment applied to orders for preventive detention under Articles 64-65 of the Criminal Code. It argued that the order of preventive detention and the imposition of a penalty were similar both in their punishing effect and in their execution. Accordingly, the principle of \u201cnulla poena sine lege\u201d laid down in Article 1 of the Criminal Code (see paragraph 19 below) expressly covered both penalties and measures.","13.Consequently, the retrospective application of preventive detention measures to perpetrators who committed an offence, or were sentenced, prior to the entry into force of the new provisions of the Criminal Code in 2007 was only permitted if the new law was not stricter than the law applicable at the time of the offence. However, Article 65 \u00a7 2 read in conjunction with Article 64 \u00a7 1 and 64a \u00a7 1 of the Criminal Code did not lay down a heavier sanction as regards the order for, and the release from, preventive detention than the law applicable at the time of the offence.","14.Furthermore, Article 65 \u00a7 2 of the Criminal Code permitted a reopening of the proceedings to the convicted person\u2019s detriment. Likewise, Article 443 \u00a7 2 of the Canton of Zurich\u2019s Code of Criminal Procedure (see paragraph 26 below) which had been applicable at the time of the applicant\u2019s conviction, interpreted correctly (and other than the Court of Appeal had done), had permitted a reopening of the proceedings to the convicted person\u2019s detriment if there were new facts or evidence. It was irrelevant that the Zurich Supreme Court (see paragraph 27 below), as well as the doctrine, had interpreted Article 443 \u00a7 2 of that Code as not applying to convicted persons, but only to acquitted ones. It had thus been possible already under the old law to quash a final judgment to the convicted person\u2019s detriment owing to new considerable facts and evidence and to amend the judgment by the order of subsequent preventive detention. It was uncontested that both at the time of the applicant\u2019s conviction and at present, the conditions for the applicant\u2019s preventive detention (Article43 \u00a71, sub-paragraph 2, of the previous version of the Criminal Code and Article 64 of its current version) were met. Therefore, the subsequent order of preventive detention did not constitute a heavier penalty than the one applicable at the time of the offence.","15.For the same reasons, Article 4 of Protocol No. 7, enshrining the nebis in idem principle, had not been breached. The requirements for a reopening of the case under Article 4 \u00a7 2 of Protocol No. 7 had been met. There were new facts which the sentencing court had not known and could not have known at the time and which showed that the requirements for preventive detention under Article 43 \u00a7 1 of the old version of the Criminal Code and Article 64 of its new version had been met already at the time of the conviction. There was no double punishment for the same offences as the initial judgment of the sentencing court had been quashed following the reopening of the proceedings.","16.The order for the applicant\u2019s preventive detention further had not violated Article 5 \u00a7 1 of the Convention. It had been justified under sub\u2011paragraph(a) of that provision as detention \u201cafter conviction\u201d. The reopening of the proceedings owing to new facts with the aim to impose a heavier sanction led to the finality of the initial judgment being set aside. By applying the rules on reopening proceedings (Article 410 of the Swiss Code of Criminal Procedure, see paragraph 25 below), the imposition of subsequent preventive detention became part of the initial judgment and thus had a sufficient causal connection with the criminal conviction contained therein.","17.It could therefore remain open whether the applicant\u2019s preventive detention could also be based on sub-paragraph (e) of Article 5 \u00a7 1 as detention of a person \u201cof unsound mind\u201d. In any event, medical expertise had confirmed that the applicant suffered from a serious mental disorder as a result of which he posed a very high risk to the life and limb of others. In view of the seriousness of the applicant\u2019s illness and the risk he posed his detention was necessary.","18.As regards the conditions of the applicant\u2019s detention, the applicant kept being detained in P\u00f6schwies Prison in Regensdorf after having served his term of imprisonment. He had neither completed any therapy while he served his prison sentence as he had continuously refused any therapeutic measures nor does he appear to have undergone therapy afterwards."],"248":["2.The applicant was born in 1959 and lives in Bucharest. He was represented by Mr C. Cojocariu, a lawyer practising in Orpington (United Kingdom).","3.The Government were represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.From 30 June 2006 until 29 May 2018 (see paragraph 21 below) the applicant was resident in the S\u0103poca Psychiatric Hospital (\u201cthe hospital\u201d), situated within the administrative area of the Unguriu village local authorities, in Buz\u0103u county. The background to the case is described in the case of N. v. Romania (no.59152\/08, 28November 2017) which was brought by the same applicant and concerned the lawfulness of his placement in psychiatric hospitals (Article 5 \u00a7\u00a7 1 (e) and 4 of the Convention).","6.On 28 November 2017 the Court gave judgment in the case of N.v.Romania (cited above). It found that, at least since 2007, the applicant\u2019s detention had been devoid of any basis in law and had not been warranted under Article 5 \u00a7 1 (e) of the Convention (ibid., \u00a7161). Moreover, his continued detention after the adoption of the decision of the Buz\u0103u County Court of 29 August 2016 upholding the maintenance of the detention measure, had been arbitrary (ibid., \u00a7\u00a7 62 and 167). The Court further considered that the intervals at which the courts had decided on the necessity of maintaining the applicant\u2019s detention had not met the \u201cspeediness\u201d requirement set out in Article 5 \u00a7 4 of the Convention (ibid., \u00a7195) and that the applicant had not benefited from adequate legal assistance in the proceedings concerning the periodic judicial review of the necessity of his detention (ibid., \u00a7 198).","7.It thus found a violation of Articles 5 \u00a7\u00a7 1 (e) and 4 of the Convention (ibid., \u00a7\u00a7 168 and 199).","8.In addition, the Court indicated several individual and general measures with a view to helping the respondent State fulfil its obligations under Article46 of the Convention (ibid., \u00a7\u00a7 216-19).","9.That judgment became final on 28 February 2018 and the Committee of Ministers of the Council of Europe (\u201cthe Committee of Ministers\u201d) started the supervision of its execution. At its meeting no. 1331(CM-DH) which took place from 4 to 6December 2018, the Committee of Ministers adopted the following decision:","\u201cThe Deputies","1. recalling that this case concerns the applicant\u2019s unlawful prolonged psychiatric confinement as a security measure and the authorities\u2019 failure to secure his immediate release in conditions meeting his needs, as well as shortcomings in the judicial review of the applicant\u2019s continued deprivation of liberty;","As regards urgent individual measures","2. noted that in May 2018 the applicant was placed in a recovery centre, as a transitional step until suitable community-based accommodation could be found, and that the authorities have since found him accommodation which he will be able to move to once the necessary staffing arrangements have been made; considered that the applicant\u2019s situation no longer calls for the taking of urgent individual measures;","3. encouraged the authorities to continue closely to monitor the situation to ensure that the applicant can move into the sheltered housing procured for his accommodation as soon as qualified staff have been assigned;","As regards individual measures","4. deeply regretted that the deficiencies in the current system of legal protection for adults left the domestic courts with no option but to place the applicant under guardianship and thus deprive him of the exercise of his civil and political rights;","5. recalled in this respect that the Committee is supervising the adoption by Romania of legislation establishing a new system of independent and effective legal protection, tailored to the specific needs of adults with mental disabilities, in the case of Centre for Legal Resources on behalf of Valentin C\u00e2mpeanu [v. Romania [GC], no.47848\/08, ECHR 2014];","6. pending the adoption of this legislation or until such time as the domestic courts terminate the applicant\u2019s guardianship, invited the authorities to take steps to ensure that the appointed guardian involves the applicant and takes his preferences into account in the decisions concerning him, if consistent with his best interests; also invited them to inform the Committee of the legal safeguards or any arrangements made or envisaged to ensure that the sum awarded as just satisfaction is used in the applicant\u2019s best interests;","7. invited the authorities to inform the Committee of relevant developments in the applicant\u2019s situation and the concrete general measures envisaged in response to the judgment by the end of February 2019 at the latest.\u201d","10.On 3 July 2014 the Government Agent before the Court asked the local authorities of Unguriu village to start the procedure for appointing a representative to represent the applicant in the proceedings before the Court in the case of N. v.Romania (cited above).","11.On 27 June 2014 the hospital lodged an action with the P\u0103t\u00e2rlagele District Court seeking to divest the applicant of his legal capacity and to appoint a legal guardian for him. The hospital requested that a temporary guardian (curator special) be appointed to represent the applicant\u2019s interests in those proceedings as well as in the proceedings before the Court. In the application, the hospital explained that the applicant suffered from paranoid schizophrenia and that the illness did not allow him to properly exercise his rights and comply with his obligations. On 7 July 2014, with the applicant\u2019s consent, the court appointed a temporary guardian, a lawyer from the P\u0103t\u00e2rlagele legal aid service of the Buz\u0103u Bar Association.","12.On 29 October 2015, at the court\u2019s request, the applicant was examined by a psychiatric commission of the Buz\u0103u County Forensic Medical Service. In its report of 2 December 2015 that service confirmed the diagnosis of paranoid schizophrenia and declared the applicant \u201cpsychologically incapable of managing himself and of taking decisions in an informed and predictable manner concerning his civil obligations and rights and his own interests\u201d. The report was added to the file.","13.The applicant was present at the hearings before the District Court, and was accompanied by a nurse from the hospital and by his guardian adlitem. Before the court he asked that the action concerning him lodged by the hospital be dismissed. He also submitted a series of written documents.","14.On 30 August 2016, in the light of the diagnosis and of the findings of the psychiatric report, and taking into account the applicant\u2019s written submissions which \u201cconfirmed his mental situation\u201d, the P\u0103t\u00e2rlagele District Court divested the applicant of his legal capacity and placed him under legal guardianship. Having postponed the hearing on several occasions in order to allow social services to find a family member or acquaintance willing to take on the role of guardian, and having failed to identify such a suitable person, the court, by the same decision, designated as his legal guardian the social welfare department of Unguriu village (\u201cthe Unguriu social welfare authority\u201d) owing to its proximity to the hospital. Ms T.E.C., an employee of the Unguriu social welfare authority, was appointed as the applicant\u2019s legal guardian.","15.The applicant appealed against that decision. He was assisted by the same lawyer who represented him in the present proceedings (see paragraph2 above). He argued that the measure ordered by the court was not justified and had been taken in disregard of his procedural rights. He also urged the court to take into account the precarious situation of people with mental disabilities in the respondent State, who were marginalised, segregated and subjected to institutionalised abuse. He relied on Article164\u00a71 of the Civil Code (\u201cthe CC\u201d, see paragraph 26 below), on the Articles of the Constitution concerning equality, the right to private and family life and protection of people with disabilities, and on Articles 8 and 14 of the Convention. He also requested that the court refer the case to the Court of Justice of the European Union (\u201cthe CJEU\u201d) for a preliminary ruling, arguing that the decision contravened the requirements of the European Union (\u201cEU\u201d) legislation concerning the right to vote and the right to work of people with disabilities. He also raised an objection to the constitutionality of Article164 \u00a7 1 of theCC concerning the guardianship procedure, which in his view discriminated against people with mental disabilities and deprived them of the exercise of their rights. On 5December 2016 the County Court appointed a temporary guardian from the list of lawyers of the Buz\u0103u Bar Association.","16.On 9 January 2017 the County Court refused to refer the preliminary question to the CJEU, as it considered that the issues raised by the applicant in his request did not concern the interpretation or validity of EU law in the proceedings before it.","17.On 6 February 2017 the Buz\u0103u County Court referred the objection to the constitutionality of Article164 \u00a7 1 of the CC to the Constitutional Court, which rendered its decision on 16 July 2020 (see paragraph31 below). At the same time, the County Court decided not to await the outcome of the constitutional proceedings and thus continued its examination of the appeal.","18.On 10 March 2017 the Mina Minovici Institute for Forensic Medicine confirmed the report of 2 December 2015 (see paragraph12 above). In June 2017 a commission from that institute examined the applicant and on 19December 2017 issued a new psychiatric report reaching the same conclusion as the Buz\u0103u County commission. It recommended that the applicant, who was \u201cmentally incapable of caring for himself, of deciding on his best interests, and of acting in an informed manner in compliance with his civil rights and obligations\u201d be divested of his legal capacity. The report also stated that even with appropriate medical treatment the applicant was unable to manage his personal and proprietary interests.","19.On 27 February 2018 the Buz\u0103u County Court upheld the decision rendered by the District Court on 30 August 2016 (see paragraph 14 above). It relied on the definition of insanity by Law no. 71\/2011 (see paragraph27 below) and also pointed out that the measure in question was not aimed at punishing the individuals concerned, but rather at protecting them and also third parties. The court noted that the legislation did not allow for a more nuanced response in the case of people with mental problems. The court further stated that in the absence of any suitable family member or acquaintance, appointing the local authority as guardian was the only sensible and legal solution.","20.The applicant, through counsel, appealed on points of law, but in a final decision of 25 September 2018 the Ploie\u015fti Court of Appeal dismissed the appeal on the grounds that the law did not provide for that means of appeal.","21.On 29 May 2018 the applicant was transferred from the hospital to the U. Centre for Neuropsychiatric Recuperation and Rehabilitation, a closed care home situated in Bucharest (\u201cthe U. Centre\u201d).","22.On 4 June 2019 the Bucharest Directorate General for Social Welfare and Child Protection (\u201cthe Bucharest social welfare authority\u201d) lodged an application with the Bucharest District Court seeking to replace MsT.E.C. in her role as the applicant\u2019s legal guardian (see paragraph14 above) with a new legal guardian, MrB.V.G., a psychologist who worked in the U. Centre and who, at that time, was also the applicant\u2019s therapist and the person in charge of his case (case manager). It argued that this change would reflect the residence arrangements concerning the applicant and would optimise the decision-making process in his regard. Both MsT.E.C. and Mr B.V.G. gave their consent to the proposed change. The applicant was not party to these proceedings, which took place between the Bucharest social welfare authority, Ms T.E.C. and Mr B.V.G.; the Unguriu social welfare authority was also notified of the proceedings.","23.In an interlocutory decision of 22 August 2019 the Bucharest District Court, relying on Article 173 of the CC (see paragraph 26 below), allowed the application and designated Mr B.V.G. as the applicant\u2019s new legal guardian, on the grounds that the applicant had been transferred to a place which was too far away from his present legal guardian and that the two guardians and the Unguriu social welfare authority had given their consent.","24.The Government added to their submissions in the present case a handwritten statement dated 11February 2019 in which the applicant agreed that Ms T.E.C. be replaced as his legal guardian by Mr B.V.G. That statement was not mentioned in the application of 4 June 2019 (see paragraph 22 above) or in the interlocutory decision of 22 August 2019 (see paragraph 23 above).","25.The applicant alleged that he had learned of that decision on 17October 2019, in the proceedings before the Constitutional Court, when it had been added to the file by the representative of the U. Centre."],"249":["2.The applicant was born in 1955 and lives in Baku. She was represented before the Court by Mr F. Agayev, a lawyer based in Azerbaijan.","3.The Government were represented by their Agent, Mr \u00c7. \u018fsg\u0259rov.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.On 21 July 2007 the applicant purchased a recently built house in the Sabail District in Baku from a person who had allegedly lived there before. After the purchase, she renovated the house and lived there with her daughter. The sale and purchase contract was not approved by a notary and there was no entry in the State register. A document called \u201cinformation about the tenant\u201d (m\u0259nzil kiray\u0259\u00e7isi haqq\u0131nda m\u0259lumat) was issued in the applicant\u2019s name by housing maintenance authority no. 19 of the housing utilities service under the Social Development Department of the State Oil Company of the Azerbaijan Republic (\u201cSOCAR\u201d) and she received and paid electricity, gas and telephone bills. According to a certificate (aray\u0131\u015f) issued by the same authority on 26 September 2007, the applicant lived in the house without the proper registration.","6.On 28 September 2010 the Azneft Production Union (\u201cAzneft\u201d), a subsidiary of SOCAR, brought a court action against the applicant, seeking her eviction and the eviction of her family members from the house and its demolition at the applicant\u2019s expense on the ground that it was an unauthorised construction built unlawfully on State-owned industrial land assigned to it for petroleum operations. In support of its claim, Azneft relied on a 1962 decision by the Executive Committee of the Baku City Council of Workers\u2019 Deputies (predecessor of the Baku City Executive Authority (\u201cthe BCEA\u201d)) assigning the land to Azneft for petroleum operations, and a map of the land in question, approved on 17 December 2008 by the Main Department of Architecture and Town Planning of the BCEA. It argued that, under domestic law, land designated for industrial operations could not be used for the construction of residential buildings and that the applicant did not have any construction permits or ownership documents relating to the land or the house.","7.On 16 December 2010 the Sabail District Court upheld the claim and ordered the eviction of the applicant and her family members and the demolition of the house at her expense. Relying on, inter alia, Article 180 of the Civil Code and Article 111 of the Land Code (see paragraphs 14-16 below), it found that the house was an unauthorised construction built on a State-owned plot of land which had been designated for permanent use by Azneft and that therefore the squatted land was to be returned to Azneft without any compensation being paid to the applicant. It also added that the contract of 21 July 2007 and the document issued by the housing maintenance authority were not relevant legal documents for establishing the applicant\u2019s rights over the house and that under Articles 139.1 and 144.1 of the Civil Code (see paragraphs 12-13 below), contracts in respect of immovable property had to be approved by a notary and all rights over such property had to be entered in the State register.","8.The applicant appealed, noting that (i) she had purchased the house from another person and had been living there for several years without any challenge by the authorities; (ii) there were other residential buildings in the area and new residential buildings were under construction; (iii) she had been issued with the relevant document by the housing maintenance authority and had been paying all utility bills on the basis of the utility meters installed by the relevant utility companies; and (iv) the part of the land assigned to Azneft where her house was located had been taken back from it pursuant to an order issued by the BCEA on 29 July 1999 (from the copy of the order available in the case file, it is impossible to identify the plot of land in question). She also submitted that the house in question was her only home, that she did not have any means to buy a new house and that she and her daughter would end up on the street if it were to be demolished.","9.On 30 March 2011 the Baku Court of Appeal upheld the first-instance court\u2019s judgment, reiterating its reasoning. In addition to the decision of 1962 and the map of 17 December 2008 referred to by the first-instance court, it also relied on an opinion by the State Land and Cartography Committee of 30 March 2011 and on a statement given by a specialist from that committee at the court hearing confirming that the plot of land on which the house in question had been built was State-owned land allocated for permanent use by Azneft and did not form the part of the land taken back from Azneft in accordance with the BCEA\u2019s order of 29 July 1999. The court did not address the last of the applicant\u2019s above-mentioned arguments.","10.On 25 August 2011 the Supreme Court dismissed a cassation appeal by the applicant.","11.By the time of the last communication with the parties in 2015, the applicant\u2019s house had not yet been demolished and she continued to live there, and to date the applicant has not informed the Court of any steps taken to enforce the demolition or eviction order."],"250":["2.The applicant was born in 1978. Before the Court she was represented by Ms A. Skjelbred, a lawyer practising in T\u00f8nsberg.","3.The Norwegian Government (\u201cthe Government\u201d) were represented by their Agent, Mr M. Emberland of the Attorney General\u2019s Office (Civil Matters), assisted by Mr T. Midttun Tobiassen, associate at the same office.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant is a Norwegian national. Together with an ex-partner, B, she has a girl, X, who was born in December 2016, and a boy born in December 2017. With another ex-partner, C, the applicant has two older children: Y, who was born in February 2006, and Z, who was born in May 2007.","6.In March 2013 the child welfare services instigated a review of the applicant\u2019s care skills in regard to the children Y and Z. At the time, the applicant had ended her relationship with C, and had the daily custody for Y and Z. The review was instigated due to the child welfare services\u2019 reception of several notices of concern relating to the personal hygiene of the children and their failing to arrive at school on time. Against this background, the municipal child welfare services implemented several assistance measures in order to increase the applicant\u2019s ability to care for the children, such as helping her to establish good everyday routines to ensure that the children came to school on time and brought their packed lunch.","7.In February 2016 the applicant moved to another municipality, and the above assistance measures offered by the municipality from which she moved, therefore ended. In the light of notices of concern from the children\u2019s school, the child welfare services in the municipality to which the applicant had moved, instigated a review of the applicant\u2019s ability to provide her children with care. They were particularly concerned about the children\u2019s absence from school.","8.In August 2016 the applicant moved with her children to yet another municipality. There she lived together with B, with whom she had established a relationship. The child welfare services in that municipality implemented several assistance measures for the applicant to improve her ability to provide Y and Z with care.","9.In October 2016 the applicant and the children were passengers in a car driven by B, which was stopped by the police. B was suspected of driving under the influence of substances, and the police in addition found illegal drugs during the subsequent search of the apartment in which they lived. The police considered the apartment to be \u201cchaotic and unhygienic\u201d, and advised the applicant to seek accommodation in a family care shelter.","10.The applicant was at this time pregnant and in November 2016 the child welfare services raised concerns about the yet unborn child, referring to the assistance measures implemented in respect of the applicant\u2019s two older children and to B\u2019s criminal record and substance abuse.","11.The applicant gave birth to X early in December 2016. Three days after her birth, the child welfare services instigated a review of the applicant\u2019s care skills. Furthermore, the child welfare services received a notice of concern from the midwife at the hospital, referring to B lacking interest in the wellbeing of both X and the applicant, and the applicant\u2019s lack of adequate hygiene and her indifference in regards to both the needs of the new-born child and the careless attitude of B.","12.In the time after the birth of X, the child welfare services conducted several visits to the applicant\u2019s and B\u2019s home. They also received another notification of concern, which indicated that B used illegal drugs. Further reviews of the applicant\u2019s caring skills were carried out and further assistance measures implemented.","13.The relationship between the applicant and B ended in the late winter or early spring 2017. The applicant and the three children then moved in with the applicant\u2019s mother. During the time when they lived there, the child welfare services conducted further visits and implemented further assistance measures.","14.On 29 May 2017 the child welfare services applied to the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker) for a care order in respect of X. It reads in the application that the child welfare services deemed that it was a matter of a placement of X until she had grown up and that they would in time assess the possibilities of the foster parents\u2019 adopting X. For that reason the child welfare services submitted that the purpose of contact rights would be to ensure that X had knowledge of her parents and that contact should be limited in order to make X feel secure about where she would live and to whom she was to become attached.","15.Following the application for a care order, the applicant and B made an agreement that the applicant would have custody for X until the proceedings regarding the care order were completed. The applicant and C made an agreement that C would have custody for Y and Z. The child welfare services continued to implement several support measures with the aim to increase the applicant\u2019s ability to provide X with care.","16.On 11 and 12 September 2017 the County Social Welfare Board, which was composed of one jurist qualified to act as a professional judge, one psychologist and one lay person, conducted a hearing. The applicant attended with legal-aid counsel and gave evidence. Fifteen witnesses were heard.","17.The Board gave its decision on 14 December 2014. It identified serious shortcomings in the care with which the applicant had provided X. In particular, it found that the applicant failed to see X\u2019s needs. In addition, it took note of Y\u2019s and Z\u2019s absence from school, which it coined as a \u201cgross educational neglect\u201d. The Board also placed emphasis on the applicant\u2019s blaming others for the shortcomings in her care for the children and considered that there were strong indications of her failing to set boundaries for them. Furthermore, the Board considered whether the flaws in the applicant\u2019s caring skills were situational, but found that external factors, though they had had an impact, could not explain the shortcomings in the care that she had provided. In the light of the assistance measures that had been offered to the applicant in the past, the Board considered that further assistance measures would not serve to improve her caring skills.","18.As to contact rights for the applicant, the Board considered that the placement of X in a foster home would likely be long-term, as the applicant\u2019s challenges relating to her caregiving skills were linked to her personality and the Board considered her unable to go through the necessary changes in approximately two years. The Board also considered that X should not be unnecessarily disturbed by too extensive contact rights in the period in which she should establish herself in the foster home. Contact rights for the applicant in respect of X were ultimately set at two hours, three times per year, under supervision. Contact rights for B in respect of X were also set in the decision.","19.By an application of 25 September 2017, the applicant brought the Board\u2019s decision before the District Court (tingrett) for review. She requested that the Board\u2019s decision not be implemented while the review proceedings were pending. The District Court, after having held a meeting on that matter, dismissed the request and the applicant\u2019s further attempts to have that decision changed were fruitless. The District Court appointed a psychologist as an expert to assist it and he gave a report on 11January 2018. In the meantime, in December 2017, the applicant and B had had another child.","20.The District Court held a hearing on 5, 6 and 7 February 2017. Its bench was composed of one professional judge, one expert and one lay person. The applicant attended, with legal-aid counsel, and gave evidence. Eleven witnesses were heard. The court-appointed expert also participated in the meeting and elaborated on his report.","21.In its judgment of 15 February 2018 the District Court upheld the care order.","22.At the outset the District Court stressed the principle of the best interests of the child. Furthermore, as a main rule, children should grow up under the care of their parents; the situation had to be reasonably clearly untenable for a care order to be issued.","23.The District Court went on to assess whether the applicant had been able to provide X with sufficient emotional care. Crucial to this issue would be the applicant\u2019s capacity to \u201cmentalise\u201d in a manner that enabled her to \u201csee\u201d X\u2019s care needs and her capacity to provide a level of care that corresponded to those needs. In that context, the District Court examined the applicant\u2019s mental health and the level of care she had provided for children. It found the applicant to suffer from a damaged ability to form relations and that this affected her emotional caring skills.","24.In the view of the District Court, the above was also substantiated by the level of care she had provided to her two elder sons. In this respect, the District Court in particular relied upon the assessments done in other proceedings involving the applicant, such as the proceedings against C, the father of her two oldest children, regarding the custody for them. From these, the District Court referred, inter alia, to the assessments of the interplay between the applicant and her children, which an expert had held to be problematic. In particular, the expert held that the applicant lacked the ability to read the children\u2019s signals and behaviour, and could \u201cmentally disappear\u201d from the relation with her children. This caused lack of acknowledgement of the children\u2019s emotions and wrongful stimulation of the children. In the view of the District Court, this had led to the children suffering from mental health problems, and was held to constitute serious neglect of the applicant\u2019s two eldest children.","25.Regarding the assessment of the level of care she provided to X, the District Court in particular relied on the reports from the child welfare services during the first period after the birth of X, and the assessments done by the court appointed expert. The reports from child welfare services showed, in the District Court\u2019s view, that the child welfare services had had concerns about the emotional care that the applicant had supplied to X. The child welfare services had referred in particular to instances where X as an infant child had turned away from the applicant when lifted from the cradle and lack of eye contact between the applicant and X, both which the child welfare services interpreted to indicate lack of emotional attachment. The child welfare services had furthermore had concerns about what they perceived as the applicant\u2019s lack of structure in her care for X, inter alia failing to establish routines to ensure proper feeding and sleep for X, failing to notice when X needed to have her diaper changed, and that X to a too great extend sat in chairs over a long period of time.","26.The reports from the court appointed expert indicated that X, who at the time was under the care of the foster parents, was a well-functioning child. However, he held her to have an inherent vulnerability, which could manifest itself if the conditions for care changed. The expert held this to originate from the initial phase of her life which had been marked by instability. In the light of talks with the applicant and B, the expert concluded that the lack of stability of sufficient care in the early part of X\u2019s life constituted neglect. Furthermore, the expert held that X recognised the applicant during the contact sessions, but that X turned away from the applicant and showed a stronger attachment to the foster parents than to the applicant.","27.Against the above background, the District Court found that X had been subjected to emotional neglect when under the applicant\u2019s care.","28.As to whether the applicant\u2019s care skills could be improved through assistance measures, the District Court considered this to depend on whether she would be willing to start a therapeutic process. Even if successful, a treatment of the applicant would to the District Court\u2019s assessment likely take several years. It found against this background that assistance measures could not in the near future create an adequate care situation for X and that X did not have time to await improvements in the applicant\u2019s care skills. It was therefore considered to be in X\u2019s best interests that the care order be upheld.","29.With regard to contact rights, the District Court emphasised in particular that X\u2019s settling in in her foster home would be a key factor, as X was considered to be in a critical phase for developing attachment to her foster parents. Furthermore, the District Court found that the care order would most likely entail a placement for X\u2019s entire childhood, since the assessment of the court appointed expert indicated that the applicant would need long-term treatment as her problems were linked to her personality. In addition, the District Court took into account the effect that the total strain of the contact rights would have on X. In view of this, the District Court set the contact rights for the applicant at two hours, three times per year, under supervision.","30.On 16 May 2018 the High Court (lagmannsrett) refused the applicant leave to appeal against the District Court\u2019s judgment. The High Court considered that the District Court had had a sufficient basis for deciding the case and had thoroughly examined the relevant factors. Furthermore, the High Court found that the arguments adduced in the appeal did not render the District Court\u2019s conclusions questionable. Nor did the High Court found that there had been any substantial weaknesses with regard to the procedures before the District Court.","31.On 23 July 2018 the Supreme Court (H\u00f8yesterett) dismissed the applicant\u2019s appeal against the High Court\u2019s decision.","32.In the meantime, on 20 June 2018 the applicant had applied to the County Governor (at the relevant time fylkesmannen; since 1 January 2021 statsforvalteren) for a review of the child welfare services\u2019 actions in her case. The review resulted in two reports in which several shortcomings in the child welfare services\u2019 dealing with her case were identified. The County Governor closed the case on 17 October 2019.","33.On 8 February 2019, after the application had been lodged with the Court, the applicant applied to the County Social Welfare Board for the care order in respect of X to be lifted. The Board dismissed her application on 3January 2020. The applicant brought the Board\u2019s decision before the District Court for review, and on 22 June 2020 the District Court decided to lift the care order. The District Court\u2019s judgment became final as it was not appealed against and X was returned to the applicant on 13 July 2020."],"251":["2.The applicant was born in 1994 and lives in Norway. Before the Court, he was represented by Mr A. Nylund, a lawyer practising in Bergen.","3.The Norwegian Government (\u201cthe Government\u201d) were represented by Mr. M. Emberland of the Attorney General\u2019s Office (Civil Matters) as their Agent, assisted by Mr G. \u00d8. Tengs, associate attorney at the same office.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant is the father of X, a boy born in June 2015. B, a former partner of the applicant, is X\u2019s mother. The applicant and B were no longer in a relationship when X was born.","6.Upon a notification of concern from a midwife during B\u2019s pregnancy, about both parents\u2019 caregiving abilities, B consented to assistance measures both before and after the birth of X, including going to a parent-child centre. After the birth a social worker at the clinic where X was born also expressed serious concern about the child\u2019s care situation. In conversations between the child welfare services and B, B withdrew her consent to the planned stay at the parent-child centre, but consented to stay at the clinic for a few more days.","7.On 15 June 2015 an emergency placement decision was made and X was placed in an emergency foster home. B was given the right to meet X three times each week. The County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker) authorised the decision on the following day.","8.B contested the emergency care order through proceedings to which the applicant was not party. On 26 June 2015, after having held a meeting, the Board upheld it. The Board found that B had extraordinary needs, requiring more or less continuous assistance. B was considered to lack understanding of issues concerning the child\u2019s safety, inter alia related to feeding and the physical handling of the child. The Board found that assistance in the home would not compensate for B\u2019s deficiencies, as the child\u2019s safety would not be sufficiently safeguarded during the remainder of the time when such assistants could not be present. The Board emphasised, however, that the decision was taken at an early stage and that B could improve her parenting capabilities in the future.","9.On 21 July 2015 the child welfare services submitted a request to the Board for a care order. During the time leading up to the Board\u2019s meeting about the case, the applicant had a total of five visits with X, under supervision. The applicant was party to those proceedings.","10.On 21 October 2015 the Board issued a care order in respect of X. In its decision, the Board emphasised that B was diagnosed with a mild mental retardation and an expressive language disorder. Further, she was considered as having a generally low level of functioning and a lack of ability to self-reflect, and as being unable to meet the child\u2019s care needs. The Board further found that B lacked fundamental caregiving abilities, and that the boy would be at risk of experiencing serious neglect if he stayed with her. The Board also found that assistance measures would not adequately remedy the risk of neglect.","11.With regard to contact rights, the Board found that X needed time to bond with his foster parents, and that the foster placement would likely be long-term. The purpose of contact would therefore be for X to maintain his knowledge of where he came from, and his knowledge about his biological parents. The Board further found that both parents had challenges in meeting the child\u2019s needs during contact sessions, and were in need of guidance in connection with those sessions. The applicant and B were therefore granted the right to have contact with X \u2013 under the supervision of the child welfare services \u2013 for two hours, four times a year.","12.On 3 November 2015 B brought the Board\u2019s decision before the City Court (tingrett). The applicant supported the care order, but applied for more extensive contact rights.","13.On 22 December 2015 the City Court appointed a psychologist as an expert to assess B\u2019s caregiving abilities, the child\u2019s care needs, as well as both parents\u2019 capacity to carry out contact sessions with the child. In her report of 22 March 2016 the expert found that X had extraordinary care needs. He suffered from epilepsy, severe atopic eczema and had significant far-sightedness in both eyes. He was in need of regular visits to several health specialists, and would require caregivers equipped to meet his needs. The expert further found that B was incapable of meeting X\u2019s special needs, in addition to being unable to meet the child\u2019s ordinary needs. According to the report, B was immature, had weak cognitive skills and self-insight, deficiencies in the ability to reflect and mentalise, a passive attitude, and low stamina. She was considered to have a limited understanding for what it meant to have a child, and it would be very challenging for her to act as a caregiver.In conclusion, X was considered to be at risk of emotional and physical neglect if he stayed with B, and assistance measures were considered inadequate to compensate for B\u2019s caregiving deficiencies.","14.The report also assessed the applicant\u2019s abilities in relation to contact sessions. He was found to have clear limitations in cognitive skills, as well as in the ability to reflect and \u201cmentalise\u201d. The applicant however recognised these limitations and was supportive of a public care order. He was further described as having a weak ability to interact with X, including a low tolerance for stress and frustration, causing him to become loud and hot-tempered towards X. The applicant was nevertheless described as having a positive attitude towards the child, and more able than B to receive and utilise help and guidance during contact sessions, and he was considered to have potential for improvement. The expert assessment concluded that it would be in X\u2019s best interests to remain in the foster home, but have knowledge of his natural parents, and that contact rights should be limited to three two-hour sessions with X for each biological parent yearly, under supervision.","15.On 7 April 2016 B withdrew her case before the City Court, and the decision from the County Social Welfare Board of 22 October 2015 (see paragraphs 10-11 above) accordingly became final.","16.On 15 November 2017 the child welfare services lodged an application with the County Social Welfare Board for a decision to withdraw the applicant\u2019s and B\u2019s parental responsibilities in respect of X and authorise X\u2019s adoption by his foster parents. X was at the time two and a half years old, and had lived with his foster parents since three weeks after the initial emergency care order had been implemented shortly after his birth (see paragraph 7 above). The applicant and B opposed the application.","17.The Board, composed of one jurist qualified to act as a professional judge, one psychologist and one lay person, conducted a meeting on 3 and 5January 2018. The applicant and B were both present together with their legal-aid counsel and gave evidence.","18.On 11 January 2018 the Board decided to withdraw the applicant\u2019s and B\u2019s parental responsibilities in respect of X and to authorise that X be adopted by his foster parents. The Board found, on the basis of the attachment which X had formed with his foster parents and the biological parents\u2019 lack of caring skills and their cognitive disabilities, that a reunion of X and his biological parents was unrealistic both in a short and a long\u2011term perspective. The applicant and B agreed with the Board on that point. Furthermore, the Board considered that such a reunion would highly likely cause serious problems for X, an assessment with which the applicant and B also agreed. Against this background, the Board found that X would grow up in the foster home, and also that the foster parents were proven fit to raise X as their own child.","19.The main issue before the Board was therefore whether adoption would be in X\u2019s best interests. In examining that issue, it found that X\u2019s lack of attachment to his natural parents, his close attachment to his foster home, his vulnerabilities and need for a stable environment, and the contact sessions\u2019 having been challenging for him, made his interests in adoption considerable. Moreover, the Board found that future contact with his natural parents could lead to insecurity for X, and also promote further judicial procedures regarding contact rights. X was regarded as having special care needs and a particular need for a stable environment, and the Board considered that adoption would eliminate the risk that X would live in uncertainty and insecurity. Weighed against the interests that the Board deemed the applicant and B to hold, notably in the light of contact sessions having been difficult for X, the Board found that the biological parents\u2019 interests had to yield.","20.The applicant and B brought the Board\u2019s decision before the City Court for review. In that connection they argued that the City Court should appoint an expert to assess whether adoption would be in X\u2019s best interests, but did not lodge a formal request to that effect. The City Court did not deem it necessary to appoint an expert in order for it to have a sound basis for its decision (see also paragraph 24 below.)","21.The City Court, whose bench comprised one professional judge, one psychologist and one lay person, held a hearing on 25 and 26 June 2018. The applicant and B were present together with their legal-aid counsel. The applicant gave evidence, while B was, at her own request, allowed to refrain from making an oral statement. Seven witnesses and numerous pieces of documentary evidence were also presented to the court.","22.In its judgment of 5 July 2018 the City Court upheld the Board\u2019s decision. In its reasoning it first noted that the parties agreed that the applicant and B would be permanently unable to provide their son with appropriate care, and that the adoptive parents were proven fit to raise the child as their own.","23.The City Court went on to assess the best interests of the child. In that context it noted that although adoption against the will of the parents was a far-reaching measure, it was very important for a child to grow up under conditions characterised as little as possible by uncertainty regarding the future. It further pointed to research showing that adoption for some children could provide a safer and more predictable upbringing than long\u2011term fostering. Although general research alone could not justify adoption, the City Court noted that such research could be a crucial part of the assessment of the child\u2019s best interests.","24.In the concrete assessment, the City Court found that X, were he not adopted, would remain in the foster home for the rest of his childhood, that he had a close connection to the foster home, and that it could cause serious problems for him to be relocated. As to whether alternative solutions to adoption existed, the City Court stated that it would base its decision on general research and knowledge rather than an expert assessment, as such an assessment would not shed more light on what was best for X or how his health challenges and development would be in the future (see, also, paragraph 20 above). It found that X was an exceptionally vulnerable child, requiring special care and a stable care situation, and there was still uncertainty regarding his development, even if he had showed a development better than expected, as was reflected, inter alia, in a report from the child welfare services\u2019 superviser. Moreover, the City Court pointed out that X had a close connection to his foster parents and that he had no attachment to his biological parents. Furthermore, it emphasised the importance for X\u2019s development to experience a safe and positive relationship with his \u201cpsychological parents\u201d (the foster parents), and adoption would in the City Court\u2019s view give him the safety he needed in the years to come.","25.Moreover, although the applicant had accepted that he would not be able to care for X in the future, the City Court found that there was a risk that there would be future proceedings instituted by the natural parents seeking extended contact rights unless adoption were at that time authorised. While the biological principle should be given considerable weight, the attachment between the applicant and his son was nevertheless very limited, according to the City Court. As the foster parents had not consented to post-adoption contact visits (under an \u201copen adoption\u201d arrangement), that issue could not be decided. The City Court presumed, however, that the foster parents would facilitate contact between the applicant and X, should X at a later point in time so wish.","26.One of the judges in the City Court, a lay person, dissented. He stated, among other things, that he felt that the application for adoption had been based on general research and that this was insufficient to justify adoption. Furthermore, he stated that if adoption was authorised in the case before the City Court, applying the majority\u2019s reasoning would have adoption as the end result in all cases where children had been placed at an early age without having established affiliation with his or her biological parents. In the dissenting judge\u2019s view, such a drastic measure could never have been the intention of the legislator. After having also examined the individual circumstances of the case, he concluded in summary that it was not sufficiently certain that the benefits of adoption were so strong that the need to maintain the biological ties between X and his parents had to cease.","27.On 22 November 2018 the High Court (lagmannsrett), in a reasoned decision, refused the applicant and B leave to appeal against the City Court\u2019s judgment, finding in particular that the case did not raise issues of principal importance that would be resolved by further consideration of the case, that there were no significant weaknesses in the City Court\u2019s case processing, and that the City Court\u2019s application of the law, including its balancing of the best interests of the child, had been correct.","28.On 28 January 2019 the Supreme Court (H\u00f8yesterett) dismissed the applicant\u2019s and B\u2019s appeals against the High Court\u2019s decision."],"252":["2.The applicants were born in 1948 and 1976 respectively and live in the village of Alapars. They were granted legal aid and were represented before the Court by Mr A. Zalyan, a lawyer practising in Vanadzor, and MsJ.Evans, MsJ.Gavron, Mr P. Leach and Ms K. Levine, lawyers from the European Human Rights Advocacy Centre in London.","3.The Government were represented by their Agent, Mr G.Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia before the European Court of Human Rights.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.At the material time Derenik G., aged 10, was a fourth-grade pupil at School No.5 in Charentsavan (\u201cthe school\u201d). According to the applicants, he was in good health.","6.At 9.30 a.m. on 5 June 2010 the second applicant took Derenik G. to school, where a mathematics examination was scheduled to take place at 11a.m. Before that time the children were to prepare for the examination.","7.The form teacher, S.K., seated the pupils in the classroom and wrote down the assignments on the blackboard. She then left the classroom to have a conversation with A.A., another teacher, who was the mother of one of the pupils. According to the Government, the form teacher left the classroom for only a few minutes. The applicants disagreed that this had been the case.","8.While the form teacher was away, the pupils had a fight, as a result of which Derenik G. was beaten up by two of his classmates, I.H. and V.H., who were brothers. During the fighting, Derenik G. and other pupils screamed loudly.","9.Having heard the noise, the janitor entered the classroom. Thereafter, the form teacher and other teachers came in. They found Derenik G. lying unconscious on the floor. Trying to revive him, they slapped his face, performed artificial respiration, sprinkled water on his face and tried to draw out his tongue. Since Derenik G. did not regain consciousness, they took him into the corridor, where another janitor joined them in their attempts to revive him. As their attempts were unsuccessful, the janitors took DerenikG. out of the school building. After further unsuccessful attempts to bring him back to consciousness, he was taken to hospital.","10.Derenik G. was already dead when he was admitted to hospital.","11.On the same day the police ordered a forensic medical examination to determine the cause of Derenik G.\u2019s death, the existence of any injuries on his body, their location and type, the time and method of their infliction and their gravity. The expert was also asked to determine whether DerenikG. had suffered from any illness while alive and, if so, in what way he had been affected by such illness, and what possible link it might have had with his death.","12.On 12 June 2010 the police took written statements (\u0562\u0561\u0581\u0561\u057f\u0580\u0578\u0582\u0569\u0575\u0578\u0582\u0576) from A.A. (see paragraph 7 above) and S.A., a military instructor working at the school.","In her statement, A.A. mentioned that she had asked S.K. to come out of the classroom into the corridor to talk about her daughter, who was in the same class as Derenik G. While they spoke, she and S.K. had walked to the toilets on the same floor about twenty metres from the classroom. From there, she had gone to the staff room, while S.K. had returned to the classroom.","S.A. stated that at around 9.30 a.m. on 5 June 2010, he had been outside the school with A.Av., the sports teacher. Suddenly, they had heard noises coming from the window and ran towards the school entrance. S.A. had then seen A.Av., who had reached the entrance first, carrying Derenik G. out of the school building, together with the janitors. They had laid him down and A.Av. had performed artificial respiration and cardiac massage while S.A. had started rubbing the boy\u2019s feet to try to improve his blood circulation. Seeing that Derenik G. was not regaining consciousness, they had taken him to the school gates to put him in an ambulance. However, because the ambulance had been slow to arrive and in order not to waste time, they had taken Derenik G. to hospital using a van parked nearby.","13.On 6 July 2010 the forensic medical examination was completed. The expert mentioned in his report that since early childhood Derenik G. had received medical assistance on several occasions, mainly for infectious diseases. In June 2009 Derenik G. had been examined by a paediatrician. The parents had informed the paediatrician that the child had lost consciousness for no reason two weeks previously, during a sports class. They had also said that, two years earlier, he had fallen and hit his head at school, as a result of which he had lost consciousness. The paediatrician had referred Derenik G. to a children\u2019s hospital in Yerevan for further examination, where he was eventually diagnosed with syncope (fainting) and active supervision had been recommended. Thereafter the parents had not complained of the child having fainted. The expert concluded that the cause of Derenik G.\u2019s death was acute respiratory failure and acute oxygen deprivation, which were the consequence of a number of changes in his internal organs discovered during the forensic examination and confirmed by the forensic analysis of his tissues. The report stated that he had suffered from severe muscular dystrophy and fatty degeneration of the heart, conditions which were linked to the cause of his death. Furthermore, syncope (fainting) could have been a factor contributing to his death. A haemorrhage in the area of the left temple and cheek was also discovered. It was concluded that this had been caused by a blunt, hard object while he was still alive and was not directly linked to the cause of the death.","14.On 15 July 2010 the first applicant enquired of the Prosecutor General whether criminal proceedings had been instituted in respect of his grandson\u2019s death and asked to be provided with a copy of the relevant decision. He also asked to be involved in the proceedings as his grandson\u2019s legal heir.","15.On 21 July 2010 criminal proceedings were instituted under Article118 of the Criminal Code in respect of the beating of Derenik G.","16.On 26 July 2010 the first applicant was joined in the proceedings as the victim\u2019s legal heir.","17.On 20 August 2010 the second applicant was questioned by the investigator and stated, inter alia, that her son had been healthy. To the investigator\u2019s question of whether there had been prior incidents of DerenikG. fainting, the second applicant mentioned two such episodes in the past. In reply to the investigator\u2019s question as to whether she had requested Derenik G.\u2019s teachers to be attentive towards him, the second applicant stated that she had never made such a request.","18.In September 2010 the first applicant lodged a complaint with the Prosecutor General, requesting that criminal proceedings be instituted in respect of Derenik G.\u2019s death and not merely in relation to the beating prior to his death. He also complained that the police had not instituted criminal proceedings promptly and had not carried out the necessary investigative measures, such as questioning the witnesses or examining the scene of the incident.","19.On 15 September 2010 the first applicant requested that an additional forensic medical examination be conducted, on the grounds that the expert had not given conclusive answers to the questions asked. In particular, the exact time of the death and of the infliction of injuries and their gravity had not been determined and the connection between DerenikG.\u2019s medical conditions and the cause of death had not been clearly established. In addition, the first applicant had not been provided with the decision to order a forensic medical examination and had not had an opportunity to put questions to the expert. That request was rejected.","20.During the investigation Derenik G.\u2019s parents questioned two of his classmates in connection with the events of 5 June 2010 and recorded their answers. The two pupils questioned mainly confirmed that they had witnessed their classmates, brothers I.H. and V.H., beating up Derenik G. The recordings were submitted to the police.","21.On 8 October 2010 the investigator examined the recordings.","22.On 3 November 2010 the investigator sent a letter to the Chief of the State Education Inspectorate. Referring to the need to ensure a full and objective investigation of the case, he asked the State Education Inspectorate to examine the incident of 5June 2010 in so far as the actions of the school\u2019s administration and the teaching staff were concerned.","23.By a letter of 15 November 2010, the Chief of the State Education Inspectorate stated that Derenik G.\u2019s death was not attributable to any inaction or omission on the part of the school\u2019s administration or the teaching staff. The letter stated in particular that A.A., not finding it appropriate to have a conversation with S.K. in front of the entire class, had asked the latter to have a word outside the classroom. During S.K.\u2019s absence several pupils, including Derenik G., had had a fight and hit each other. As to the observance of the requirement to ensure the safety of the pupils, point1(9) of part 3 of the model contract for the provision of free schooling services between a State school and the parent of a pupil, as established by the Order of 26 December 2009 of the Minister of Education and Science (see paragraph 42 below), had been included in the internal rules of conduct of the school and the relevant contract had been signed with the parents of all pupils, including Derenik G.\u2019s parents. The school had been renovated and the necessary conditions for ensuring the safety of the pupils were in place.","24.On 18 November 2010 the criminal proceedings were terminated. According to the police, Derenik G. had been beaten by I.H. and V.H. during a fight while S.K. was away from the classroom. After the fight Derenik G. had approached the blackboard to see more clearly what was written there. Upon returning to his desk, he had suddenly fallen to the floor and lost consciousness. The decision then referred to S.K.\u2019s statement that she had been outside the classroom for only five minutes. It went on to say that I.H. and V.H. could not be prosecuted under Article 118 of the Criminal Code for beating Derenik G., since they had not attained the age of criminal responsibility.","25.On 27 November 2010 the first applicant lodged a complaint with the Prosecutor General against the investigator\u2019s decision to terminate the criminal proceedings. His complaint was rejected.","26.On 7 December 2010 the first applicant lodged a complaint with the Kotayk Regional Court (\u201cthe Regional Court\u201d) disputing the decision to terminate the criminal proceedings. He argued, in particular, that Derenik G. had died as a result of a fight among the children while they had been left alone in the classroom without a teacher\u2019s supervision. The administration had not taken any measures to prevent the fight. Also, the police had not instituted separate criminal proceedings in respect of Derenik G.\u2019s death. Although it had been established that Derenik G. had been beaten, the causal link between the beating and his death had not been properly examined.","27.On 18 March 2011 the Regional Court allowed the first applicant\u2019s complaint and set aside the decision of 18 November 2010, finding that the police had failed to investigate a number of issues properly, such as the exact length of time the form teacher had been away from the classroom, the exact time when Derenik G. had been beaten, whether or not a physician had been available at the school at the time of the events, and whether it would have been possible to save his life had he received timely first aid. Also, no expert panel had carried out a forensic examination to find out the reason for the changes to Derenik G.\u2019s internal organs and whether such changes were connected with the blows sustained by him or to determine the period of time between those changes and the time of his death, the type of intervention that would have been necessary to save his life, whether his death could have occurred in other circumstances, how his diseases might have progressed had he lived, and after how long they might have caused his death.","28.On 7 June 2011 the Criminal Court of Appeal, upon an appeal by the prosecutor, fully upheld the Regional Court\u2019s decision. In addition to the findings of the Regional Court, it found that the cause of Derenik G.\u2019s death had not been established in the course of the investigation and that it was still to be determined whether the blows sustained to different parts of his body during the fight were linked to his death or not. Furthermore, the investigator had referred the matter to the State Education Inspectorate instead of making his own legal assessment of the actions of the school\u2019s administration.","29.On 7 July 2011 the criminal proceedings were resumed.","30.On 22 July 2011 an additional forensic medical examination by an expert panel was ordered to determine the cause of Derenik G.\u2019s death and the injuries discovered on his body, as well as the types of diseases he had suffered from and whether those diseases were linked to his death. The expert panel was further requested to determine whether Derenik G.\u2019s injuries, if they had resulted from him having been beaten, were directly linked to his death and whether those injuries in any way aggravated, or could have aggravated, the diseases that were directly linked to his death.","31.On 16 November 2011 the additional forensic medical examination was completed. The relevant parts of the report issued by the expert panel read as follows:","\u201c... according to the results of the [initial] forensic medical examination of the body, a haemorrhage in the area of the left temple and cheek was discovered which had been caused while [Derenik G.] was still alive by a blunt, hard object, possibly as a result of one or more than one action ...","While he was still alive, Derenik G. had suffered from tubular atrophy, mild ... infection of the liver and atrophic changes of the heart muscle which could possibly have progressed during [his] epileptic seizure of 5 June 2010 and its aftermath. The other pathological changes in his internal organs mentioned in [the expert report of 6July 2010] ... could have developed during the epileptic seizure and upon his death.","The medical evidence submitted and the material in the criminal case file [statements of the sport teacher and school janitors] also lead to the conclusion that in 2009 [Derenik G.] had had (two) seizures accompanied by a loss of consciousness, which, however, had not been diagnosed as epileptic seizures ..., having been recorded as syncope (fainting).","...","As regards the link between the blows sustained by [Derenik G.], the sudden worsening of his state of health, his loss of consciousness accompanied by a seizure and his death, it should be noted that in view of the above-mentioned pathological changes in his internal organs which occurred while he was alive, the blows coupled with [Derenik G.\u2019s] psychological and emotional state at the given moment could have contributed to the epileptic seizure and to the development of acute respiratory failure and cardiac function disorder connected with [the seizure], which caused [his] death.\u201d","32.On 7 December 2011 the investigator decided to terminate the criminal proceedings. The decision stated, inter alia, that, although the conclusion of the panel of experts had established a causal link between Derenik G.\u2019s death and his beating by I.H. and V.H., his assailants could not be prosecuted for homicide since the element of intention on their part was absent. In any event, I.H. and V.H. had not attained the age of criminal responsibility for any type of crime. The decision further stated that S.K. and the school principal had been unaware of Derenik G.\u2019s epileptic seizures. In those circumstances they had not realised, and could not have realised, the danger inherent in their actions (or inaction).","33.The first applicant disputed the investigator\u2019s decision before the prosecutor, who rejected the complaint.","34.On 9 January 2012 the first applicant lodged a complaint with the Regional Court against the investigator\u2019s decision of 7 December 2011. He argued, in particular, that Derenik G. had died as a result of the failure on the part of the school\u2019s administration to properly implement its duty to protect its pupils. He also complained that no separate criminal proceedings had been instituted in respect of Derenik G.\u2019s death, notwithstanding the fact that the causal link between the beating and his death had been established.","35.On 22 February 2012 the Regional Court granted the first applicant\u2019s complaint and set aside the decision to terminate the criminal proceedings. It referred to its previous decision of 18 March 2011 (see paragraph 27 above) and considered that, following the reopening of the proceedings, the police had still failed to find out whether or not a physician had been available at the school at the time of the incident and whether it would have been possible to save Derenik G.\u2019s life had he received timely first aid.","36.On 1 March 2012 the prosecutor lodged an appeal, stating, in particular, that it had been revealed during the investigation that, in accordance with the relevant order by the director of the Charentsavan Medical Centre, one physician had been put in charge of the school in question and one other State school in Charentsavan. On the day of the events, in accordance with the schedule, the physician had been on duty at the other school.","37.On 3 April 2012 the Criminal Court of Appeal granted the prosecutor\u2019s appeal and quashed the Regional Court\u2019s decision of 22February 2012. It found, inter alia, that the police had not addressed the question of whether it would have been possible to save Derenik G.\u2019s life had he received timely first aid from a physician for objective reasons, given the fact that on 5 June 2010 the latter had been on duty at the other school.","38.On 3 May 2012 the first applicant lodged an appeal on points of law. He argued in detail that an effective investigation had not been carried out, mainly because the police had failed to take the necessary steps to find those responsible for Derenik G.\u2019s death. He reiterated his previous arguments in relation to the fact that no separate criminal proceedings had been instituted in respect of Derenik G.\u2019s death, although it had been established that the cause of the latter\u2019s death was the beating by his classmates.","39.On 8 June 2012 the Court of Cassation declared the first applicant\u2019s appeal inadmissible for lack of merit."],"253":["1. A list of the applicants is set out in the appendix.","2. The Russian Government (\u201cthe Government\u201d) were represented by Mr. M. Galperin, the then Representative of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, his successor in that office.","The circumstances of the case","3. The facts of the case, as submitted by the parties, may be summarised as follows.","4. The applicants were arrested on suspicion of various crimes and were placed under house arrest. Some of them were remanded in custody and then the preventive measure was changed to house arrest. On numerous occasions the domestic courts extended the applicants\u2019 pre-trial detention and house arrest. The particular circumstances of the cases are presented in the appended table."],"254":["1. The applicant, Mr Rainer Speer, is a German national, who was born in 1959 and lives in Potsdam. He was represented before the Court by Mr J. Eisenberg, a lawyer practising in Berlin.","The circumstances of the case","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","Background to the case","3. The applicant was a politician in the Land of Brandenburg. From 2004 to 2009 he was Minister of Finance and, from 2009 until his resignation on 23 September 2010, Minister of the Interior of Brandenburg. He has been married since 1992.","4. In 1997 the applicant had an affair with Ms G. and their child E. was born the following year. Before the competent social authorities, G. stated that she did not know who the father was and, as a result, received alimony payments ( Unterhaltsvorschuss ) from the state.","5. On 30 October 2009 the applicant\u2019s laptop was stolen. The laptop contained extensive private data, including email correspondence between the applicant and G. The stolen data was acquired from a Berlin businessman by journalists working for the newspaper Bild, a tabloid owned by Axel Springer AG (since 2016: Axel Springer SE).","6. During an interview on 30 August 2010 the journalists confronted the applicant with their findings. Furthermore, on 9 September 2010 the journalists submitted emails obtained from the laptop to the applicant with a request for comment.","7. On 20 September 2010 an article was published on Bild\u2019s website with the headline: \u201cBrandenburg\u2019s Minister of the Interior under Pressure. Social Fraud? Speer contests the allegations.\u201d On 22 September 2010 several other news outlets carried the story.","8. On 23 September 2010 the B.Z., another tabloid owned by Axel Springer AG, published an article with the headline: \u201c Just wanted to remind you of your debt, Mr Minister of Finance; 2100 EUR.\u201d, a quote from an email G. had written to the applicant. The article quoted several more emails between G. and the applicant.","9. On the afternoon of 23 September 2010 the applicant resigned from his post as Minister of the Interior.","Proceedings at issue","10. On 9 September 2010, reacting to the journalists\u2019 request for comment (see paragraph 6 above), the applicant filed a lawsuit before the Berlin Regional Court against Axel Springer AG. He demanded that it cease any further publication regarding the applicant\u2019s fatherhood, his relationship with G. and the question whether G.\u2019s actions had constituted social fraud.","11. Following his resignation, the applicant amended the lawsuit. He now primarily demanded that Axel Springer AG and her subsidiary company publishing the B.Z. cease publication of the email correspondence. His demand concerned, inter alia, the following emails:","\u201cI\u2019m not available for the role of father\u201d, dated 28 October 1997, sent by the applicant.","\u201cI am horrified what\u2019s going to happen next year, that thing with the alimony fraud is going to be over (not the criminal relevance for me). On the one hand I\u2019m glad, on the other hand I won\u2019t have anything left to make excuses to E. in good conscience. In any case, this constant begging is an untenable situation (the 100 EUR, starting in Oct. next year 150 EUR are peanuts for you, I do really need this money by now, symbolically and also materially.\u201d, dated 29 November 2002, sent by G.","\u201cYou have forgotten the anniversary again...You owe us 1150 Euro... It\u2019s a small fraction of what she would be entitled to, please don\u2019t deny her that and don\u2019t make me have to beg, please\u201d, dated 22 October 2003, sent by G.","\u201cI haven\u2019t seen a penny from you in all of 2003, you know that I haven\u2019t been getting any state benefits for her for quite some time.\u201d, dated 25 November 2003, sent by G. On 2 December 2003 the applicant replied: \u201cI\u2019ll come over with a couple of Euros!\u201d","\u201cHello Rainer, please tell me when I\u2019ll get the agreed alimony for E. As of April you owe me 1850 EUR, you Minister of Finance.\u201d, dated 21 April 2004, sent by G.\u201d","12. Regarding the original demand to cease all publications concerning his affair with G., the applicant did not further pursue his claim, essentially conceding that the public had a right to be informed about the reasons for his resignation from office.","13. On 28 June 2011 the Berlin Regional Court granted the applicant\u2019s request in part and notably ordered Axel Springer AG to cease the publication of the emails. On 5 November 2011 the Berlin Court of Appeal largely confirmed the Regional Court\u2019s judgment, relying notably on the fact that the emails had been obtained from the applicant by criminal means.","14. On 30 September 2014 the Federal Court of Justice reversed the lower courts\u2019 decisions and lifted the interdiction to publish the emails. It found that, given the applicant\u2019s position as Minister of the Interior of a Land, his relationship to G. and the question whether G.\u2019s actions had constituted social fraud were of exceedingly high interest to the public. Regarding the origin of the information, the court pointed out that a distinction had to be made if the journalists themselves had obtained the information by criminal means or, as in the present case, had only benefited from the actions of a third party. The use of the email correspondence between the applicant and G. in verbatim served to corroborate the allegations and was, thus, of significant importance for the public opinion.","15. On 15 January 2015 a panel of three judges of the Federal Constitutional Court refused to examine the applicant\u2019s complaint without providing reasons (1 BvR 3209\/14).","Relevant domestic law and practice","16. A full description of the relevant domestic law at the material time can be found in Axel Springer v. Germany [GC] (no. 39954\/08, \u00a7 47, 7 February 2012)."],"255":["2.The details concerning each applicant are listed in the appended table. The applicants were represented by Mr V. Gribincea and Mr I. Chirtoac\u0103, lawyers practising in Chi\u0219in\u0103u.","3.The Government were represented by their Agent, Mr O. Rotari.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The first two applicants are the grandparents of the third applicant (N.). Their daughter had a relationship with A.C., resulting in the birth of N. in July 2015. Twelve days later she died; A.C. attended her funeral.","6.N. was born through emergency surgery, at 27 weeks of pregnancy. He weighed 930 grams at birth, was 39 cm long and spent 46 days in intensive care before being discharged to his grandparents\u2019 home.","7.N. was born with a number of health problems: severe respiratory distress syndrome, congenital pneumonia and bronchopulmonary dysplasia, allergy and anaemia. He was subsequently diagnosed with tetraparesis and locomotion retard and underwent treatment at the Republican Centre for rehabilitation of children with severe locomotion disability. He was also treated by a psychologist and a neuro-paediatrician and further treatment by a neurologist and a speech therapist was recommended. According to the applicants, the second applicant was often allowed to attend the hospital with N. in order to ensure constant care for him.","8.On 22 October 2018 N.\u2019s family doctor described a positive dynamic in his state of health, notably owing to the treatment already received and the care given by the grandparents. She mentioned the persistence of health problems such as low immunity and frequent respiratory infections, anaemia and allergic reactions, all of which prevented N. from being amongst other children for longer periods or using public transport. He was also sensitive to vaccines, which led to his first vaccination being administered only in November 2017 and resulting in complications.","9.In a certificate issued on 30 August 2020 a doctor from the regional public health centre noted that N. was frequently ill with chronic severe bronchitis and nasopharyngitis, hyperexcitation and nervous tics and had a deviated nasal septum. He was to avoid groups of people. He frequently suffered fever with convulsions at night and was prescribed anti-viral and anti-convulsive treatment.","10.The hospital where N. was born issued a document confirming the birth and indicating only his mother\u2019s name. That document served as a basis for the competent authority to issue his birth certificate, again mentioning only the mother\u2019s name. According to the applicants, this document was given to A.C., who gave it to the second applicant.","11.According to the Government, shortly after the funeral of N.\u2019s mother A.C. went to Russia in order to earn money needed for his son\u2019s treatment. As A.C. subsequently explained in court, he regularly inquired about his son\u2019s health and handed money to the first two applicants personally or through his mother. The applicants disputed this.","12.On 25 September 2015 the guardianship authority (the General Directorate of Social Assistance and Family Protection of Cahul City, or \u201cGDSAFP\u201d) entrusted N.\u2019s custody to his grandmother, the second applicant. On 4 December 2015 the GDSAFP attributed to N. the status of a child left without parental protection. During the period from September to November 2015 A.C.\u2019s mother visited the applicants\u2019 home and helped take care of N. She allegedly told the first two applicants that A.C. had told her to leave N. at the hospital or in an orphanage, after which the first two applicants began to despise A.C.","13.A.C. visited N. a total of seven times: in November 2015, February 2016, July 2017, January 2019 and twice in March 2019. On 3January and 13March 2019 the GDSAFP fixed a schedule for twice-weekly visits of A.C. with his son. He visited N. on 24 March 2019. A.C. subsequently declared in court that he had had very good contact with his son during that meeting. According to the first two applicants, during that meeting N. had suddenly fled from his father\u2019s hands and gone directly to the second applicant, refusing to return to his father despite encouragement to do so. No complaints on the part of A.C. were registered with the GDSAFP or with any other authority about not being given contact rights with his son. On 13 June 2019 the last schedule for A.C.\u2019s visits with N. expired. He did not ask for an extension.","14.On 26 January 2016 A.C. filed a court action aimed at confirming his paternity of N. After a conclusive DNA test on 21 June 2017, on 17 July 2017 a court confirmed A.C.\u2019s paternity of N. Those proceedings ended with the final decision of the Supreme Court of Justice of 14 November 2018, confirming the decision.","15.On 17 July 2017 A.C. asked the GDSAFP to establish his custody of N. The first two applicants opposed this request.","16.Between 12 and 18 July 2018 a psychologist examined N. In her conclusion she did not mention the year of the examination. She found that the child hardly spoke, had underdeveloped fine movements, had a low level of logical thinking, did not have the usual learning abilities for his age and avoided communication with strangers. She strongly recommended leaving him with his grandparents, with whom he had very close emotional ties. Separation from the grandparents could lead to severe effects on his psychological condition, taking into account his special development needs, his state of health and that he really knew no one other than his grandparents.","17.In July 2018 the first two applicants lodged a court action to deprive A.C. of parental rights owing to his failure to take care of his son. They also asked the court to establish N.\u2019s domicile with them. They argued that A.C. had been absent from the child\u2019s life since birth, was not familiar with his medical needs and had not contributed to his upbringing. Subsequently they dropped the claim for deprivation of parental rights, purportedly realising that they had been badly advised by their lawyer.","18.In the family doctor\u2019s conclusion of 22 October 2018 (see paragraph 8 above) it was recommended that, owing to the particularities related to taking care of N.\u2019s various health problems, he should remain with his grandparents.","19.At the court\u2019s request, on 25 January 2019 the GDSAFP issued an opinion, recommending that N. remain in the care of the first two applicants. It noted the child\u2019s very close ties with his grandparents, who \u201cbecame his true parents\u201d and offered him love, good care and education, the second applicant being a former schoolteacher. N. loved all the members of the grandparents\u2019 family and avoided contact with others. It also noted the good living conditions in their home. It noted that the local authorities had not recorded any request from A.C. to contribute to the material support of his son or to transfer any money for that purpose. Certificates issued by commercial banks confirmed the absence of any money transfers by A.C. intended for his son\u2019s upbringing.Having examined A.C.\u2019s living conditions on 12 March 2019, the same authority found that the house which he rented had a free bedroom, not yet repaired or furnished, reserved for the child. He did not have a stable job and had declared that he was in intermittent employment, earning 5,000 Moldovan lei (EUR 260) a month.","The GDSAFP finally recommended that A.C. continue to enjoy the right to visit his son.","20.On 1 April 2019 the Cahul District Court decided that N. was to remain in the first two applicants\u2019 care. In reaching that decision the court relied on the child\u2019s young age, poor health and continuing need for treatment, close emotional ties with the grandparents and their ability to provide him with the necessary material comfort and psycho-emotional balance. It found that the child needed the daily presence of his grandparents in his life and that it was in the best interests of the child to leave him in their care. It added that the father did not have a stable income and that the house he rented did not offer appropriate conditions for bringing up a child. Having examined the psychologist\u2019s opinion (see paragraph 16 above), the judge added that the child\u2019s immediate transfer to his father, even if the latter were to secure appropriate material conditions, would expose the child to physical and mental danger and could place him in an intolerable position. The judge also found that the biological father continued to enjoy the right to visit his son.","21.A.C.\u2019s lawyer appealed, noting the important role of the father figure in the emotional and social development of the child. She also argued that the first two applicants had prevented A.C. from visiting his son, which explained the low number of visits made. The father expressed his firm desire to reunite and strengthen his family and that he was fully capable of providing care to his son and also ensuring his material needs.","22.After hearing A.C. and his lawyer, the first applicant and his lawyer and a representative of the GDSAFP, on 29 October 2019 the Cahul Court of Appeal quashed the lower court\u2019s judgment and adopted a new one, rejecting the applicants\u2019 request to establish N.\u2019s domicile with them. It noted that, according to Article 31 of the Civil Code as it read at the relevant time (see paragraph 28 below), a minor\u2019s domicile could be established with persons other than the parents only in exceptional cases. The court referred to the principle stemming from the domestic law according to which each child has the right to live with his family and to know his parents. Separation from a parent or both parents is admissible only when the best interests of the child require so. It referred to the Court\u2019s case-law confirming this principle. The criteria to be examined in determining the best interests of the child in any specific case included the child\u2019s age, the possibilities of the parent to ensure the child\u2019s physical, intellectual and moral development, emotional ties between the parent and the child, the care which the parent has provided to the child, and so on. The court found that, although the evidence in the file confirmed N.\u2019s health problems, this did not prove the existence of an exceptional situation which would justify establishing his domicile with his grandparents. In particular, the grandparents had not submitted evidence that A.C. presented any danger to his son or could not be trusted to ensure appropriate medical care for him. As for the recommendation of the psychologist (see paragraph 16 above), the court found that it was based solely on information provided by the grandparents, without trying to observe what the child\u2019s reaction would have been to contact with his father. Moreover, the dates of the psychological evaluation had been mentioned, but not the year. Similarly, the family doctor\u2019s conclusion (see paragraph 8 above) was not initially dated, and the subsequent clarification of the date contradicted the materials in the file. Therefore, neither document could be taken into account.","23.The fact that A.C. had visited his son on only a few occasions was due, as he explained, to obstacles created by the first two applicants. Moreover, he had tried to help them financially, but they had always refused his help. It was also established that A.C. had asked for confirmation of his paternity on 26January 2016, six months after the child\u2019s birth, and that those proceedings had lasted until 14 November 2018. It was thus clear that he had not abandoned his child but had had to confirm his paternity. Another aspect was that, again in the words of A.C., during a visit to his son on the basis of the schedule of visits fixed by the GDSAFP, he had established contact with his son, who had not rejected him and with whom he had very good contact. Moreover, the court found that, while the first two applicants argued that A.C. had never helped them with the upbringing of his son, they had not proved that they had ever unsuccessfully requested such help. Finally, the court found that the absence of a furnished room for the child was not decisive, since the child had never lived with A.C., who still had time to prepare the room. The lower court\u2019s finding that A.C. was unprepared for taking care of his son was not based on any specific evidence. In the absence of any evidence in the file of the existence of an exceptional situation requiring the separation of A.C. from his son, the court rejected the first two applicants\u2019 claim.","24.In their appeal, the first two applicants clarified the dates of various documents in respect of which the Court of Appeal had had doubts by submitting additional documents from the same authorities. They also noted that the court had accepted \u2013 without any evidence \u2013 the simple statements made by A.C. and his lawyer concerning, inter alia, the obstacles created by the grandparents to his visits to his son or his attempts to send them money, as well as about his employment and ability to earn money to support the child. For instance, there was evidence of only two money transfers in March 2019 and there was not a single complaint by A.C. about such obstacles to any authority. More generally he had not come into any kind of contact with the local administration of the village where his child had spent five years, as confirmed in the statement of the village mayor that they attached. Moreover, it was strange for the court to invoke the absence of the grandparents\u2019 plea for help, since a father who truly cared for his son\u2019s health would not wait for such a plea and would at least inquire about any need, especially knowing that the child had serious and persistent health problems. The first two applicants insisted that this case should not be examined from the point of view of general measures of care to an ordinary child: this child needed very special attention and care owing to his fragile physical and psychological state. They added that the court had totally ignored the GDSAFP\u2019s recommendation to leave the child with his grandparents.","25.On 8 May 2020 the Supreme Court of Justice found the appeal inadmissible since it did not correspond to any ground for quashing the judgment of the lower court, but essentially expressed the first two applicants\u2019 disagreement with the outcome of the proceedings.","26.At A.C.\u2019s request, on 3 June 2020 the GDSAFP annulled the second applicant\u2019s custody of the child. According to the Government, from that date his son should have lived with A.C. However, the decision of 3 June 2020 has not yet been enforced. On 18 June 2020 A.C. asked the same authority to accompany him to the applicants\u2019 home in order to take his son to his home. This was temporarily refused, owing to the COVID-19-related lockdown, but the grandparents were warned to prepare for the transfer at any moment. The first two applicants challenged in court the decision of 3June 2020; the proceedings were pending at the date of the parties\u2019 latest submissions.","27.Also on 18 June 2020 the psychologist who had examined N. in 2018 reiterated her previous findings."],"256":["2.The applicant was born in 1964 and lives in municipality B. The applicant, who had been granted legal aid, was represented by MsI.Niku\u013cceva, a lawyer practising in Riga.","3.The Government were represented by their Agent, Ms K. L\u012bce.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant\u2019s son X was born in 2000. In 2003 the applicant and the child\u2019s father went through an acrimonious divorce, which was finalised in2006. Until the events described below, X was living with the applicant. In2009 the child\u2019s father instituted civil proceedings seeking sole parental authority (aizg\u0101d\u012bbas ties\u012bbas) and limitation of the applicant\u2019s contact rights (saskarsmes ties\u012bbas). In 2014 his claim was granted. In2016, following an appeal by the applicant, the sole parental authority was granted to her as the child\u2019s father had withdrawn his claim in 2015.","6.Following reports of X\u2019s behaviour in school, on 21November 2008 the director of the guardianship institution established by municipalityC. (b\u0101ri\u0146tiesa \u2013 a guardianship and curatorship institution established by a local municipality) (hereinafter \u201cthe C. Guardianship Institution\u201d) removed Xfrom the physical custody (at\u0146\u0113ma apr\u016bpes ties\u012bbas) of the applicant. The director of the C. Guardianship Institution noted that X\u2019s behaviour in school had worsened. He had attempted to harm himself and he had hurt other children (references were made to incidents of poking in the eye, hurting with scissors and biting). He was placed in the psychiatric unit of a children\u2019s hospital for inpatient treatment for the same reasons. X was diagnosed with adjustment disorder with mixed disturbance of emotions and conduct. He was discharged on 3December 2008.","7.On 5December 2008 the C. Guardianship Institution upheld the decision removing X from the applicant\u2019s physical custody. It relied, inter alia, on the following grounds. The applicant had \u201cmade serious parenting mistakes\u201d, \u201callowed and encouraged the child\u2019s unlawful behaviour\u201d, \u201cignored the advice of teachers and specialists\u201d and \u201cinsufficiently involved X\u2019s father in the parenting\u201d. Thus, X continued to suffer emotional abuse in different life situations. As a result of \u201cwrong parenting\u201d by his mother, X\u2019s life and health was considered to be in danger. The Guardianship Institution decided that at that point in time it was impossible to grant physical custody over X to his father as they had not established a true father-child relationship. The father had not opposed to X being temporarily placed in a family support centre. X was placed in a family support centre and afterwards started living with his father. After a couple of months X returned to live with the applicant and on 30October 2009 her physical custody was restored.","8.In January 2010 a hearing was scheduled before the guardianship institution established by municipality V. (hereinafter \u201cthe V. Guardianship Institution\u201d) concerning the potential removal of X from the applicant\u2019s physical custody in view of conflicts between X, now aged 9, and his schoolmates, following reports of X\u2019s behaviour in school (references were made to schoolmates\u2019 refusal to attend school while X was present and endangered them). The case was not examined because the applicant changed her registered address and the V. Guardianship Institution no longer had jurisdiction to examine the case.","9.In civil proceedings relating to parental authority (see paragraph 5 above), on 29March 2011 a first-instance court ordered the applicant, X and X\u2019s father to undergo a forensic psychological and psychiatric assessment. The Court has not been provided with this decision or the reasoning, and it appears that neither of the parties complied with it.","10.On 10 May 2012 X intentionally caused a fire in their apartment and broke a neighbour\u2019s window. Two neighbours sought medical aid \u2013 for poisoning by combustion and for atrial fibrillation attack. In view of this incident, the V. Guardianship Institution scheduled a hearing concerning his potential removal from the applicant\u2019s physical custody. The applicant again changed her registered address and the case was not examined, though she denied having received the summons. From 2009 to 2012 the applicant had changed her registered address twelve times.","11.Following the incident of 10 May 2012, proceedings concerning correctional measures for minors were instituted. In those proceedings, on 8August 2012 a district court ruled that X had to undergo a forensic psychological and psychiatric assessment. On 3 December 2012 a police officer took a further decision ordering X to undertake that assessment. On 17December 2012 the police apprehended him to carry out that assessment, but he showed resistance. He and his mother both cursed and shouted at the police officers. X spat at them. On 18February 2013 a prosecutor concluded that the decision of 3 December 2012 had been unlawful as it had contained references to the Criminal Procedure Law (Krimin\u0101lprocesa likums), whereas X had been a minor and had not reached the age of criminal responsibility. Moreover, the Internal Security Bureau of the State Police (Valsts policijas Iek\u0161\u0113j\u0101s dro\u0161\u012bbas birojs) carried out an inquiry and, on 25April 2013, made similar conclusions. Disciplinary penalties were imposed on the police officers concerned.","12.In February 2013 X had a fight with other children, which resulted in him being taken to hospital with a broken nose and concussion.","13.On the night of 25 February 2013, the applicant and X had a fight after which X ran out of the home in his pyjamas and slippers. He was picked up by the police on the street and taken to a police station in city B. He was seen by a paramedic, who referred him to a children\u2019s hospital in another city; two police officers accompanied him there. No danger to his state of health was detected; he was found fit to be taken to a police unit dealing with minors. X requested to be taken home and on receiving a negative response attempted to throw a cup of tea in the police officer\u2019s face. Following that, he was taken to the psychiatric unit of that hospital in another location. X\u2019s initial account of the events to a police officer stated that the applicant had physically fought him for having refused to take some medication. In particular, she had kicked him, pinned his arms behind his back and bitten his knee. He later changed his version of events and explained to the police and guardianship institutions that he himself had become aggravated and had kicked his mother, who had been trying to calm him down. He had bitten his own knee after the fight. The applicant stated that she had tried to calm X down by holding him but denied having been physically violent. In view of these events, criminal proceedings were instituted against the applicant (see paragraph 38 below).","14.On 26 February2013 the applicant together with her mother and her brother arrived at the hospital and demanded that X be discharged; the applicant was very agitated \u2013 she shouted and threatened the staff. On 5March 2013 X run away from the hospital. He was found by the police on the street and taken back to the hospital, where he behaved demonstratively: claimed that he would run away again, tried to break some lamps, attempted to strangle himself with a scarf and refused to change his wet clothes. Letters and text messages from the applicant were later found encouraging X to resist the staff and emphasise his somatic complaints. On 6March 2013 X was moved to the children\u2019s unit in a closed psychiatric hospital to prevent any contact with the applicant. He was diagnosed with adjustment disorder with mixed disturbance of emotions and conduct.","15.On 26February2013 the director of the guardianship institution established by municipality B. (hereinafter \u201cthe B. Guardianship Institution\u201d) suspended the applicant\u2019s parental authority on the grounds that she had subjected X to emotional and physical abuse. On 12March2013, having heard the applicant and her lawyer, the V.Guardianship Institution decided not to restore the applicant\u2019s parental authority. On the same day it also took a decision depriving the applicant of her contact rights and ordering that X be placed, first, in a family crisis centre for one month, and, subsequently, in a long-term social care institution (children\u2019s home). It referred to the prolonged and complicated situation in the family and the indications of possible physical and emotional abuse against the child. It observed that the applicant\u2019s attitude towards parenting and the childcare authorities had not changed. She had not recognised her parenting mistakes, was evading expert assessments of herself and X and was trying to prevent the guardianship institutions from taking decisions in X\u2019s interests.","16.While X was in the hospital, on 5March 2013, social services inspected the applicant\u2019s place of residence and gave positive assessment. They asked the applicant to cooperate and, after several unsuccessful attempts, on 10April 2013, together with the applicant, they prepared a social rehabilitation plan (soci\u0101l\u0101s rehabilit\u0101cijas pl\u0101ns \u2013 a set of measures aimed at the renewal or improvement of the social functioning abilities). It was aimed at restoration of the applicant\u2019s parental authority. It was agreed, among other things, that the applicant would see a psychiatrist. On 14April 2013 that plan was marked as completed.","17.On 6 March 2013 the guardianship institution established by municipality R. (hereinafter \u201cthe R. Guardianship Institution\u201d) suspended X\u2019s father\u2019s parental authority after he had indicated that he had no possibility of providing for the child. On 19March 2013 this decision was upheld. On 10April 2013 the V. Guardianship Institution decided to deprive the applicant\u2019s mother and brother of their contact rights with X as they had been actively involved in preventing the child from cooperating with the specialists (reference was made to the episode of 26February 2013, see paragraph14 above). Following the restoration of the applicant\u2019s parental authority, their contact rights were also restored on 11November 2014.","18.On 12 March 2013 X was discharged from the children\u2019s unit of the psychiatric hospital and placed in a family crisis centre. On 26April 2013 he was moved to a children\u2019s home. On 11 May 2013 he was placed in a psychiatric hospital for two days as he had been aggressive towards other children. The applicant and X had contact via a social network. X also called and informed her that he had been treated violently by the director of the children\u2019s home. On 15May 2013 the applicant visited the school, took X to the police station and subsequently, together with the police, to a hospital. X was initially diagnosed with a fractured radius of the right arm and bruising to the upper arm and chest. The fracture diagnosis was not subsequently confirmed.","19.On 22 April 2013 social services, in cooperation with the State Inspectorate for the Protection of Children\u2019s Rights (Valsts b\u0113rnu ties\u012bbu aizsardz\u012bbas inspekcija), issued another referral for the applicant to see a psychologist. The authorities explained to the applicant that she could consult either a psychologist advised by the social services (see paragraph16 above), or the one referred to by the Inspectorate or a psychologist of her own choosing. The applicant chose the latter option. She did not further cooperate with social services and refused to take any calls from them. The applicant consulted a psychologist on two occasions (in April and May2013), but it was insufficient for a comprehensive assessment to be made.","20.On 16 May 2013, while still in hospital, X had a conversation with his specially assigned representative in the presence of his mother. He claimed that he had suffered physical, emotional and sexual abuse from other children and the staff and that he wanted to return home to his mother. According to the applicant, he was subsequently informed that he would be taken to another children\u2019s home about 200km away from home (see paragraph39 below).","21.On the evening of 16 May 2013, the applicant and X left the hospital. The applicant informed the authorities that X was safe but refused to disclose his whereabouts. On 23 July 2013 the applicant declined a proposal by social services to organise a meeting, stating that she wished to protect the child from emotional trauma and stress.","22.On 1 August 2013 the V. Guardianship Institution decided not to restore the applicant\u2019s parental authority. According to that decision, the applicant had intentionally worsened her son\u2019s living conditions and was treating him cruelly by hiding him for a prolonged period of time. Despite X\u2019s written submissions asking to be allowed to live with his mother, he had to be heard in person in order for his opinion and living conditions to be verified. The applicant was not cooperating with social services and the other authorities, and had not eliminated the reasons for the suspension of her parental rights.","23.On 17 May 2013 the police commenced their search for X. On 24September2013 he was found in the applicant\u2019s usual place of residence. As he behaved erratically upon his apprehension (he tried to injure himself \u2013 he bit his arm and tried to strangle himself with a scarf), he was placed in the psychiatric unit of the children\u2019s hospital. On 1October 2013 he was taken to a social rehabilitation centre. On 4 October 2013 the applicant took X some personal belongings but was not allowed to see him. On the same day he ran away from the centre.","24.On 7 October 2013 the State Inspectorate for the Protection of Children\u2019s Rights organised a meeting with the applicant and various specialists. The applicant was asked not to hide the child and to undergo social rehabilitation together with him. She refused.","25.On 12 October 2013 X wrote letters to fourteen recipients, mostly State authorities, asking to be allowed to live with his mother. He submitted that he should not be placed in psychiatric hospitals, crisis centres or children\u2019s homes and should be allowed to live at home. He stated that he would resist police and run away from wherever he was placed. He had a home and a mother, and it was in his best interests to live with her.","26.On 23 October 2013 the R. Guardianship Institution restored X\u2019s father\u2019s parental authority. On 19 March 2014 it granted him sole parental custody and restricted the applicant\u2019s contact rights until receipt of her forensic psychological and psychiatric assessment. In April and May2014, the police attempted to intercept X after a bus journey in order to place him in his father\u2019s care. On both occasions X managed to run away from the police. On 21 July 2014 X was found by the police and placed with his father. The following day he ran away and returned to the applicant.","27.In October 2013 and April and May 2014 social services asked the applicant to cooperate and undergo social rehabilitation.","28.On 16May2014 the V. Guardianship Institution, having heard the applicant and her representative, decided not to restore the applicant\u2019s parental authority. The applicant was intentionally worsening X\u2019s living conditions by hiding him over a prolonged period of time and not ensuring his basic needs, which amounted to cruel treatment. To hide X was psycho-emotional abuse, as sooner or later he would be taken by the police, which would be an unnecessary and traumatising event in his life. The applicant was not cooperating with the authorities and was preventing X from leading a normal life in society. She had been informed on multiple occasions of the possibility for her and her son to receive social rehabilitation, but any attempts to cooperate had been one-sided. The applicant had not eliminated the reasons for the suspension of her parental authority.","29.In the 2012\/2013 school year X attended a school in municipality R. in sixth grade. According to the Government\u2019s submissions, which were contested by the applicant, in March and April 2013, while placed in the family crisis centre (see paragraph 18 above), he had continued these studies online. From 30 April to 15 May 2013, while placed in the children\u2019s home, X had attended a school in municipality L. At the end of May 2013, the school in municipality R. issued a certificate confirming his completion of sixth grade and the school in municipality L. enrolled him in seventh grade.","30.During the 2013\/2014 school year X was formally registered at the school in L., which he was not attending. The applicant enrolled him in a distance learning school. The contract with the school was signed by both the applicant and X. On 29 October 2013 the State Education Quality Service (Izgl\u012bt\u012bbas kvalit\u0101tes valsts dienests) inspected the distance learning school and concluded that X had been enrolled unlawfully. It ordered the principal of the school to annul the decision on his admission.","31.On 11 February 2014 the Ministry of Education and Science wrote to the applicant that the decision annulling X\u2019s admission to the distance learning school had been lawful, as his admission had been based on untruthful information \u2013 she had failed to disclose that her parental authority had been suspended. X\u2019s legal guardian at that time, the V. Guardianship Institution, on 30 April 2013 had enrolled him in a State school, thereby ensuring his right to education. On 7February 2014 the State Education Quality Service also confirmed that X was enrolled in a school in Latvia but refused to inform the applicant which school.","32.In the meantime, X was given access to the study materials from the distance learning school and completed the assignments for seventh grade. The teachers assessed his performance and on 11April 2014 the distance learning school issued a certificate confirming his completion of seventh grade with good marks. He was then transferred to eighth grade. However, on 30 May 2014 the distance learning school annulled this certificate on the grounds that X had not been enrolled in the school.","33.On 12June 2014 the school in municipality L. decided that X had not completed seventh grade and should repeat it over the following school year.","34.On 4July 2014 the Ministry of Welfare wrote to the State Education Quality Service expressing concerns about the annulment of X\u2019s transfer to eighth grade. It noted that the child\u2019s best interests required a solution to be found, regardless of the shortcomings in the admission procedure. On 24July 2014 the State Education Quality Service responded that the decision certifying his completion of seventh grade had been unlawful. X had been provided with a possibility of obtaining an education and there were no grounds for considering that the annulment decisions had not served his best interests.","35.On 22August2014 the B., V. and R. Guardianship Institutions organised a meeting about the situation and the fact that X was not being provided with an education for the second school year.","36.On 9 October 2014 a different distance learning school informed the V.Guardianship Institution that the applicant had sought help concerning her son\u2019s education. The school was providing consultations to X and had provided him with the necessary study materials. X was studying the curriculum intended for eighth grade, and his knowledge and skills were compatible with that grade.","37.During the 2012\/2013 school year X also attended a music school. In September2013 the music school informed the applicant that X was supposed to repeat the year, as he had not attended since February 2013. In August and September 2014, the music school informed the applicant that the possibility for X to attend would be examined once she had submitted a document showing that she was his legal guardian.","38.Following the incident of 25 February 2013 (see paragraph13 above) criminal proceedings were instituted against the applicant for cruel treatment of a minor. On 1July 2013 they were terminated on account of the absence of a criminal act (actus reus). It was concluded that X had lied in his initial account of the events.","39.After the applicant took X from the children\u2019s home to the police station (see paragraph 18 above), criminal proceedings were instituted on suspicion of him having been ill-treated at the children\u2019s home. On 27November 2013 these proceedings were terminated as the suspicion proved unfounded.","40.In view of X\u2019s removal from the children\u2019s home, criminal proceedings were also instituted against the applicant for failure to comply with the decisions concerning her parental authority and contact rights. On 6August 2014 these proceedings were terminated. It was found that the applicant had taken X from the children\u2019s home based on his complaints of being physically abused. The police had contacted the V.Guardianship Institution and the children\u2019s home as to where X should be placed, but neither had shown any interest about X being brought back to the children\u2019s home or to a similar institution. That is why the applicant had taken X to the hospital. The following day X had learned that he would be taken to a children\u2019s home more than 200 km away and started crying inconsolably, at which point the applicant had decided to take him away. Both the V.Guardianship Institution and the children\u2019s home had been informed of this, but neither of them had reported the need to organise a search for X. According to the applicant, X had repeatedly contacted her and asked her to take him away from the children\u2019s home as he was being abused. The police inspector concluded that the applicant had not acted in bad faith; while the applicant had acted contrary to the decisions of the guardianship institutions, she had acted in the interests of the child.","41.On 3 November 2014 the decision terminating these criminal proceedings was upheld. The prosecutor, after examining the hiding episodes that had followed X\u2019s removal from the children\u2019s home in further detail, concluded that while the applicant had violated the decisions of the guardianship institutions she had not acted in bad faith which was a compulsory element of the substance of the criminal offence involved and therefore the criminal proceedings had to be terminated. According to the prosecutor, after X had run away from the childcare institutions and his father, she had allowed him to stay with her in order to reduce his emotional suffering and stress. The prosecutor also referred to a conclusion drawn by social services on 23September 2014 (see paragraphs63 and 64 below) that she had provided him with proper care.","42.A psychological examination report of 4March 2013 by the psychiatric unit of the children\u2019s hospital concluded that physical, emotional and sexual abuse could not be excluded. It was recommended that psychological consultations be continued, an in-depth examination be carried out in order to exclude the possibility of abuse, and socio-psychological support be provided to the family.","43.The documentation concerning X\u2019s stay in the psychiatric unit of the children\u2019s hospital from 26 February to 6 March 2013 stated that X had been diagnosed with adjustment disorder with mixed disturbance of emotions and conduct, as the result of an atypical parental situation. The indications were that he should be under the consultative supervision of a child psychiatrist and receive psychological consultations, that he could continue his schooling and that a structured day and study regime was required.","44.The medical documentation from the psychiatric hospital to which X had been moved on 6 March 2013 included a diagnosis of adjustment disorder with mixed disturbance of emotions and conduct in a teenager with signs of psychophysical infantilism and parenting problems in the family. It was recommended that he work with a psychologist and undergo a family psychotherapy, but treatment in a psychiatric hospital was considered unnecessary.","45.On 11 April 2013 the family crisis centre where X had stayed from 12March2013 issued a psychological examination report. It indicated that X had suffered emotional and physical abuse at home or outside his family and parental neglect. According to X, he had suffered abuse from his father. The possibility of sexual abuse at home or outside his family could not be excluded. X had psychological peculiarities that indicated the possibility of future abuse, including poor control over his emotions, communication difficulties, a heightened desire for emotional attachment and emotional maturity below his age. The results indicated that development of a psychopathic personality with antisocial behavioural tendencies could not be excluded. The applicant had exercised excessive care, which was regarded as hidden emotional abuse against the child. At the same time, she had showed parental neglect by ignoring the indications of the need for specialist help. She lacked the ability to provide age-appropriate parenting. The report also noted that X had a symbiotic relationship with the applicant. He had asked when he would be able to return to his mother and feared that he would need to live with his father. The parental conflicts and prolonged court proceedings had emotionally traumatised the child. To prevent re\u2011traumatising the child, repeated questioning was impermissible.","46.A forensic psychological and psychiatric assessment of X, carried out on 26April2013, disclosed that he was emotionally dependent on his mother and due to his infantilism wished to remain in her care. He had adjustment disorder with disturbance of emotions and conduct connected to negative changes during puberty and an atypical family upbringing. In view of these peculiarities, X was not capable of adequately assessing his mother\u2019s conduct. He was very easily influenced by her and could uncritically mimic her behaviour. Indicators characteristic of children who had suffered emotional and physical abuse were present. Sexual abuse could not be excluded, though it could have been indirect. There had been adverse changes in his mental state, manifesting themselves as inadequate emotional development, distorted self-image, and relationships with others. These adverse changes had a causal link to his mother\u2019s conduct. Due to X\u2019s psychological state, it was advised that he should not take part in the pre-trial or trial proceedings.","47.A report of 11July2013 by psychologist I.L. disclosed that the applicant\u2019s relationship with her son showed confused roles. She had an insufficient ability to understand the needs of her child and take his interests into account. Due to her psychological particularities, the applicant was unable to understand and ensure the needs of her child. There was a risk of abuse against the child.","48.A report of 24July2013 by psychologist I.P. stated that the applicant\u2019s alleged negative attitude towards the specialists had not been confirmed. The applicant understood the peculiarities of her son\u2019s age group and had the necessary knowledge on questions of childcare and discipline. It was also noted that in order to assess whether the applicant\u2019s psycho-emotional state was negatively affecting her son, they would need to be observed together.","49.A psychological assessment of 30 September 2013 carried out by the children\u2019s psychiatric hospital where X had been placed following his apprehension by the police (see paragraph 23 above) concluded that he had the appropriate cognitive abilities for his age, that he did not have depression and that he did not require medication. X had changing and exaggerated emotions; his well-being depended on his situation and his thoughts on suicide changed rapidly. The dominant desire was to return to his mother. It was recommended that he receive long-term psychotherapy and stay in a stable, safe, calm and unchanging environment.","50.On 21 March 2014 psychologist M.Z. stated that during a consultation X had indicated that he wanted peace and wished to live with his mother at their current place of residence. He had expressed a wish to continue attending extracurricular activities \u2013 music school, singing, dancing, and painting lessons. This opinion had been expressed without the applicant being present.","51.The applicant challenged the decision of 12 March 2013 refusing to restore her parental authority before the administrative courts. She relied on Article110 of the Constitution (Satversme), which guarantees the protection of family, as well as various domestic and international documents protecting the rights of the child. On 28 June 2013 the Administrative District Court, following a hearing in the presence of the applicant, officials of the B. and V. Guardianship Institutions and social services, and the X\u2019s specially assigned representative, refused to restore the applicant\u2019s parental authority, concluding that she had abused her parental authority and committed physical and emotional abuse against X. The court referred to prolonged and inadequate emotional treatment of the child and the applicant\u2019s inability to understand his emotional needs, which had harmed his development. The applicant lodged an appeal and an application for an interim measure.","52.On 13 September 2013 the Administrative Regional Court, by means of a written procedure, dismissed her application for an interim measure. It considered that she continued to ignore the child\u2019s interests and was hiding him in spite of his need for specialist help. On 29 October 2013 the Senate of the Supreme Court, after having examined the submissions made by the applicant, the official of the V. Guardianship Institution and X\u2019s specially assigned representative by means of a written procedure, upheld the refusal to order an interim measure. It referred, in particular, to the psychologist\u2019s report of 11July 2013 (see paragraph47 above), the meeting of 7October 2013 (see paragraph24 above), the forensic psychological and psychiatric assessment of 26 April 2013 (see paragraph46 above) and X\u2019s conduct on 24September 2013 when apprehended by the police and taken to a psychiatric hospital (see paragraph23 above). It also noted that the applicant continued to refuse to cooperate with the specialists and was hiding the child. In his mother\u2019s care, from 16 May to 24 September 2013, X\u2019s conduct had remained self-destructive and his psycho-emotional state had not improved. The child\u2019s opinion was known to the court, though it could not be considered objective. The reasons behind the decision to suspend parental authority had not ceased to exist. With regard to the applicant\u2019s complaint of restriction of X\u2019s right to education, the Senate of the Supreme Court noted that it was the applicant who had prevented her child from receiving an education, as while X had lived in the children\u2019s home he had attended school.","53.On 19 December 2013 the Administrative Regional Court, following a closed hearing that had taken place on 28November 2013 in the presence of the applicant, the official of V. Guardianship Institution and the X\u2019s specially assigned representative, examined the applicant\u2019s appeal in the main proceedings and dismissed the request for parental authority to be restored. Reiterating the reasoning of the Senate of the Supreme Court (see paragraph52 above), it found that the circumstances for the suspension had not ceased to exist. There were no grounds to question reliability of the psychologist\u2019s report of 11 July 2013 (see paragraph47 above) as she had drawn her conclusions on the basis of ten different assessment methods. The court also referred to the forensic psychological and psychiatric assessment of 26April 2013 (see paragraph 46 above). The court established that the applicant continued to hide her child. There was a high risk of X being subject to abuse. The following factors were taken to confirm that the applicant did not have an adequate understanding of his needs: (i) hiding of the child, (ii) failure to cooperate with the authorities, (iii) failure to ensure that X received adequate medical care (as X had not been registered with a general practitioner), (iv) her own aggressive behaviour (such as threats and cursing), and (iv) denial of problems and failure to work on resolving them. According to the court, the applicant had acted in an abusive manner towards X and had not changed her attitude. The court examined other psychological assessments submitted by the applicant (see, amongst others, paragraph48 above) and dismissed their significance as they had been made following simple consultations and no particular assessment methods had been applied.","54.As to the best interests of the child, it was not disputed that X wished to stay with the applicant. However, his views had been influenced by her; they were not decisive. X was not aware of his own interests. In a neutral setting, he had expressed a wish to stay with his mother or father and not to be sent to a children\u2019s home (reference was made to a conversation with a social worker in a hospital, paragraph23 above). The circumstances for separating the family had not ceased to exist.","55.The court added that a decision to suspend parental authority was a compulsory administrative act, which the authorities were required to adopt whenever the circumstances set out in section203 of the Civil Law (Civillikums) were established. Parental authority could only be restored when those circumstances had ceased to exist. The applicant lodged an appeal on points of law.","56.On 3 March 2014 the Supreme Court in a preparatory meeting by means of a written procedure refused to institute proceedings on points of law. It noted that the suspension of the applicant\u2019s parental authority had been based on her attitude and conduct, and that it was up to her to remove these obstacles by constructively cooperating with the authorities. While the Supreme Court agreed with the applicant that the child\u2019s placement in a child-care institution may be emotionally hard on the child, it considered that there were no less restrictive measures to protect the best interests of the child.","57.The applicant\u2019s appeal against the decision of 1 August 2013 (see paragraph22 above) was not examined separately, as it concerned the same subject matter as in the proceedings against the decision of 12March 2013 \u2013 the restoration of the applicant\u2019s parental authority. Accordingly, the decision of 1August 2013 and the developments following that date were assessed in the proceedings against the decision of 12March 2013.","58.In proceedings against the decision of 16May 2014 (see paragraph28 above), the applicant relied on various documents guaranteeing the rights of the child. On 4 September 2014 the Administrative District Court refused to restore her parental authority, having assessed the situation since 28November 2013 when the previous case had been heard by the appellate court (it referred to the 19December 2013 judgment, see paragraph 53 above). X whereabouts remained unknown, as the applicant refused to disclose them. The case file contained no conclusion of certified experts prepared since 28 November 2013 with respect to the applicant and X, but the court referred to the psychologist\u2019s report of 11 July 2013 (see paragraph 47 above) and noted the applicant\u2019s continued failure to cooperate with the authorities. There was no information that the applicant had received a prolonged psychotherapy treatment. There was no evidence about the applicant\u2019s current psycho-emotional state and its effect on the child. The termination of criminal proceedings against the applicant did not mean that her parental authority should be restored. The applicant had not tried to resolve the underlying problems and her conduct remained confrontational. In her appeal the applicant relied, inter alia, on Articles110 and 112 of the Constitution, which guarantee the protection of family and the right to education.","59.The appeal was examined after the restoration of the applicant\u2019s parental authority (see paragraph67 below). Accordingly, in its judgment of 17April 2015 the Administrative Regional Court reduced the scope of the review to the legality of the decision of 16 May 2014 in view of the circumstances obtaining from 28 November 2013 to 16May 2014. It dismissed the claim, considering that in the period concerned there had been no indications that the applicant\u2019s parental authority should be restored. No appeal on points of law was lodged against this judgment and it took effect on 19May 2015.","60.On 27 February 2014 the Ombudsperson suggested that the V.Guardianship Institution should either restore the applicant\u2019s parental authority or ensure that the decision concerning out-of-family care be enforced.","61.On 22September 2014 social services wrote a letter to the V.Guardianship Institution suggesting it to urgently review the decision to suspend the applicant\u2019s parental authority. It noted that the decision had been taken on the basis of alleged abuse in February 2013; however, this fact had not been confirmed.","62.On 23September 2014 the director of the V.Guardianship Institution met up with X to obtain his opinion about the situation. She later stated that X had been in a good mood and had confirmed that he had a very good relationship with his mother. On the same day the V.Guardianship Institution wrote to the applicant and social services, stating that the decisions taken so far had been lawful and had served the interests of the child. It invited the applicant to cooperate and to submit any new material that would be relevant for the restoration of her parental authority.","63.On 23September2014 social services wrote another letter to the V.Guardianship Institution, the State Inspectorate for the Protection of Children\u2019s Rights and the Ministry of Welfare. At this point in time it had become known that since May 2013 the child was together with his mother; in their opinion it was inappropriate to blame the applicant for failure to comply with the decision suspending her parental authority, as the authorities had also failed to ensure compliance with that decision for more than eighteenmonths. In the meantime, X, who had already turned14, had repeatedly expressed the wish to live with his mother at their place of residence, to attend school, music school and arts lessons. There was no information that X\u2019s placement in a family-like setting had ever been sought. Placing a child in a children\u2019s home was a last resort and could only be used as a short-term solution.","64.Social services noted that even though the initial decision to suspend the applicant\u2019s parental authority following the incident of 25February 2013 had been well-intended, in their view in practice it had not served the interests of the child; the alleged abuse had not been proved in the criminal proceedings and the mother had not been convicted. The child had suffered most from this decision \u2013 he had been separated from his mother, deprived of the ability to live at his family home, and could not attend school and music school. Social services were convinced that any further separation of the child from his mother would be emotionally traumatising to both the child and the mother and would only worsen the situation. X\u2019s family doctor had also emphasised the stress both the mother and child had been facing. Furthermore, after X\u2019s stay at the psychiatric hospital it had been recommended that he stay in a stable, calm and unchanging environment (see paragraph49 above), which was not possible if there were continued risks of the child being separated from his mother and being placed in various institutions. While social services acknowledged that the family had problems that required long-term cooperation, the questions of the child\u2019s education and safety had to be resolved as a matter of priority.","65.Social services also emphasised that all the authorities involved agreed that X\u2019s right to education was not being ensured. During this period X had attended a distance learning school, but the certificate of studies had been annulled on formal grounds.","66.On 13 October 2014 social services wrote another letter to the B., V.and R. Guardianship Institutions, pointing out that X\u2019s right to education was still not being ensured despite the fact that various authorities had identified the problem almost two months earlier. While in practice X was following studies at a distance learning school, his education status remained legally unregulated.","67.On 4November2014 the B. Guardianship Institution restored the applicant\u2019s parental authority. It concluded that the applicant was now cooperating with social services and that the child\u2019s opinion had been established in person. All the parties involved recognised that in the current circumstances the child\u2019s right to education was not being ensured. The guardianship institution then reiterated the reasoning of the letter from social services of 23 September 2014 (see paragraphs 63-65 above). It also referred to the psychological assessment of 30 September 2013 that X required a stable, safe, calm and unchanging environment (see paragraph49 above) and the psychologist\u2019s report of 24 July 2013 stating that the applicant understood the parenting issues relevant to her son\u2019s age group (see paragraph 48 above). While X\u2019s father had expressed the opinion that the applicant\u2019s parental authority should not be restored, he was not prepared to take care of X and was of the opinion that he should live in a crisis centre. The B. Guardianship Institution concluded that the reasons for the suspension of the applicant\u2019s parental authority had ceased to exist.","68.On 10 November 2014 X was accepted into the distance learning school in seventh grade. On 19 November 2014 he was issued a certificate confirming completion of seventh grade with good marks and was moved to eighth grade. He was praised, among other things, for being actively involved in the study process, for participating in extracurricular activities (e.g. representing the school in a televised quiz show) and for his creative approach to studies. On 29May 2015 he was issued a certificate confirming completion of eighth grade and was transferred to ninth grade. He completed ninth grade at the same school before continuing his education in a State secondary school. As of 13 January 2015, X started to take piano classes in the music school."],"257":["13.The applicant was born in Somalia in 1993. In 2009 she left home, unaccompanied, while pregnant with a child, X, whose father came from the same city as the applicant. They were unmarried and he did not acknowledge paternity. The applicant went to her uncle\u2019s home in Kenya and in November 2009 she gave birth there to her son, X, in traumatic circumstances. She was herself still a minor when she became pregnant and gave birth.","14.In February 2010 the applicant left Kenya with X. They went first to Sweden, before entering Norway and applying for asylum there that same month. The applicant was granted a temporary residence permit with refugee status in Norway by a decision dated 4 June 2010. She has two cousins in Norway.","15.In order for the applicant to be assisted in caring for X, she and X moved into a residential parent-child centre (\u201cthe parent-child institution\u201d) on 21 September 2010. On 28 September 2010 the institution sent a \u201cnotification of concern\u201d (\u201cbekymringsmelding\u201d) to the child welfare services, as it considered X to be at risk of harm in the applicant\u2019s care. The notification concluded as follows:","\u201cIn [the parent-child institution]\u2019s opinion, the child\u2019s life would have been in danger if the staff had not protected him during the stay. It is our assessment that we cannot protect the child sufficiently within the structure of our institution, and we also find that the child is suffering.\u201d","According to the institution, the applicant had been informed of these concerns via an interpreter on the previous day.","16.It emerges from records of phone calls contained in the child welfare service\u2019s case file that various enquiries were made to ascertain whether there were any Somali families available which could act as foster parents, both before the applicant and X entered the parent-child institution and when their stay there ended.","17.X was then placed in emergency foster care with a Norwegian woman, having spent a week in the parent-child institution. The minutes of a meeting held on 11 October 2010 in the emergency foster home indicate that the foster care services were due to meet with a Somali woman whom the applicant described as her sister and who wished to act as a foster parent for X. The minutes also indicate that the foster care services were to clarify whether another childless Somali couple could be candidates. They further state that these services would establish whether there were any Somali families in the relevant region of Norway who had completed the \u201cPRIDE\u201d course (\u201cParents, Resources, Information, Development, Education\u201d \u2013 a training programme for, among others, persons who wished to become foster parents) and who would be willing to consider the task of acting as foster parents for X. The Government have in addition presented to the Court a document of 13 August 2020, explaining that the child welfare services had also examined the possibility of placing X with an Afghan Muslim family which had completed the \u201cPRIDE\u201d course, but that they had become aware of major cultural differences between Somalians and Afghans and had decided not to do so.","18.The above-mentioned meeting with the Somali woman was held on 14October 2010. The foster care services\u2019 subsequent report notes that she gave the impression of being a mother who took good care of her two children. However, her accommodation was considered unsuitable for an additional child, and the foster care services was unsure that she had the additional time and energy that a foster child would need, given that she was a single mother with two young children.","19.On 6 November 2010 the municipality applied to the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker) for a care order. The applicant opposed the application and lodged alternative claims for X to be placed in her cousin\u2019s home or in a Somali or Muslim foster home.","20.In its decision of 10 December 2010, the Board found it clear that the conditions for issuing a care order in respect of X had been met. It also found that the decision about which foster home X should be placed in was to be left to the authorities.","21.With regard to the care order, the Board considered that it had been substantiated with a high degree of probability that, at the time of its decision, X was a child with abnormal psychological development, and that he suffered from an attachment disorder caused by the applicant\u2019s inability to meet his need for physical and psychological security. The evidence showed that X was an emotionally damaged child who had not developed a secure relationship with his mother, and that he was, at the time, a psychologically vulnerable child with exceptional care needs. The applicant had been provided with considerable help and guidance, but none of it had had any significant effect on her competence as a caregiver. In the Board\u2019s view, the case clearly involved gross neglect that could be deemed unacceptable by any reasonable standard, regardless of ethnicity, culture and language. In the Board\u2019s view, assistance measures as an alternative to taking X into care had to be deemed inexpedient in terms of protecting him from further neglect, as the Board found it established that the applicant had proved unreceptive to guidance (lite veiledbar) and had made it clear that she would not cooperate with the child welfare services unless the boy was first returned to her care.","22.In respect of contact rights, the Board held that four short contact sessions a year would be appropriate. It had noted a statement from the emergency foster mother to the effect that X had been very agitated at night after the sessions with his mother; he had not slept well, had woken up and cried intensely, had seemed scared, and it had been difficult to re-establish contact with him and calm him down. She stated that this behaviour could continue for two or three nights, and the Board found it likely that this corresponded to the anxiety that the staff at the parent-child institution (see paragraph 15 above) had observed in X when the applicant was present. The Board deemed it important to avoid such reactions after contact sessions, and stated that it was necessary to ensure that X\u2019s development in the foster home was not delayed by the fact of requiring him constantly to attend contact sessions which left him very disturbed; nor should the contact sessions be too long. Moreover, in the Board\u2019s view, supervision during contact sessions was definitely necessary in order to guarantee X\u2019s physical and mental security. The child welfare services were therefore authorised to supervise the contact sessions in the manner they considered most appropriate.","23.With regard to the choice of foster home, the Board considered that the primary goal had to be to find a home in which X\u2019s extraordinary need for psychological security and for a stable life could be met. The Board held that the emotional damage suffered to date by X was such that an \u201cenhanced\u201d foster home (an arrangement whereby the foster home was given extra assistance and support) would probably be required, and his age and developmental stage indicated to the Board that it was urgent that a foster home be found in which his needs could be fully met. The Board noted that X should be moved as soon as possible from the emergency foster home to a foster family to which he could develop the best possible attachment, and that the longer he stayed in the emergency foster home, the more stressful that subsequent move would be.","24.The Board considered that X\u2019s negative attachment to the applicant was an argument against placing him with her cousin. Experience with the applicant to date implied that she would not understand the purpose of limited contact if her son were to stay with a relative, and the Board presumed that it would hinder X\u2019s positive development if the applicant were not kept away from the foster home. In addition, the cousin had had no contact with the applicant until very recently and already had substantial care duties, as she was a single parent with two children.","25.Although section 4-15 of the Child Welfare Act stated that due account should be taken of a child\u2019s ethnic, religious, cultural and linguistic background when choosing a placement (see paragraph 61 below), the Board considered it more important in the present case that the primary consideration mentioned in that same section be addressed. Specifically, the point of departure of the Child Welfare Act was that a placement should be chosen on the basis of the child\u2019s distinctive nature and need for care and training in a stable environment. As the Board had already mentioned, X was by all accounts an emotionally damaged child and consideration of his best interests indicated that starting the essential work of rectifying this state of affairs in a new care situation should be the main priority.","26.The Board stated that it would be ideal if the child welfare services, in cooperation with the Office for Children, Youth and Family Affairs (Barne-, ungdoms- og familieetaten \u2013 Bufetat), managed to find a foster home that could be deemed suitable for this task and that could also correspond to the specific ethnic, religious, cultural and linguistic considerations in the case. Thus, the Board expected this option to be explored in so far as time would permit but left the further work of choosing a placement to the child welfare services. If an ethnically Norwegian foster home was chosen, efforts had to be made to give X a desirable knowledge of his mother\u2019s \u2013 the applicant\u2019s \u2013 language, culture and religion, as far as this could be done without it being an obstacle to his positive development in the foster home.","27.X was placed in care with a Norwegian, Christian, family, members of the Mission Covenant Church of Norway and the Norwegian Missionary Society, on 13 December 2010. Records from a meeting with the applicant three days later, on 16 December 2010, contain the following notes:","\u201cThe mother wants [X] to live with a Somali family, she has heard of a family in ... which takes in foster children. Or ... he [could], if possible, live with ... in ... [A case officer] informs her that it was unfortunately not possible to find a Somali home that could take in [X], so he will now live with a Norwegian family, but that they will take good care of him and that he will have a very good life.\u201d","28.The applicant appealed against the Board\u2019s decision to the District Court. During the hearing before that court she dropped the alternative claim for X to be placed in a Somali or Muslim foster home, should her principal claim, contesting the care order, be unsuccessful.","29.In its judgment of 6 September 2011, the District Court upheld the Board\u2019s decision in respect of the care order but altered the decision on contact rights, fixing these at one hour, six times per year. It based its decision with regard to contact rights on, inter alia, the need for X to keep in touch with his cultural background and its opinion that, at the relevant time, it was uncertain whether the applicant\u2019s care skills would improve and, accordingly, whether the care order would be long-term. At the same time, it found that X\u2019s vulnerability and need for peace and stability in his care situation did not suggest that frequent contact should be granted. There is no information about the applicant having appealed against the District Court\u2019s judgment.","30.On 27 June 2012 a meeting was held between the applicant and the child welfare services. The minutes of that meeting include the following information:","\u201cThe caseworker asks if there is anything else about the access visits that [the applicant] would like to be different. Place, time, etc. [The applicant] thinks the arrangements around the access visits are ok and does not want any changes now.","Furthermore, [the applicant] wants [X] not to eat pork and not go to church. They must have respect for me and my religion, she says.","The child welfare services inform her that the foster family eats little pork. They eat a lot of chicken and fish. They are also aware of her wishes and therefore do not want to use a lot of pork in their cooking, but on the other hand they cannot guarantee that they will never eat pork. During the period when the child welfare services had to find a foster home for [X], they had spent a lot of time looking for a Somali foster home. They did not find one. [The family with whom X stayed] was the foster home that became relevant for [X]. They are not Somali and Muslim but have other qualities that are important for [X]. They have great respect for his culture and religion. They have already read a lot about Somalia to [X] and they want to inform him about Somali culture and religion as he grows up, but they [themselves] cannot live like that. They are Norwegian and now that [X] lives in a Norwegian foster home, he will follow the foster home\u2019s normal routines.","[The applicant] asks whether the child welfare services have received a letter from her lawyer ... stating that [X] should not be served pork. The caseworker says she is not aware that the child welfare services have received such a letter. [The applicant] says she needs to talk to the lawyer about this.","[The applicant] says that he will then become \u201clike them\u201d. The caseworker agrees that he will be influenced by the foster family and how they live, but [that] when he grows up he will be able to choose for himself. This is how it is in Norway. We cannot choose a religion or culture for our children. We can inform them and have wishes about their choices, but the children choose for themselves. This is also how it will be for [X].","[The applicant] goes on to say that [X] cannot stay in that foster home and that [we] will return to the issue. The child welfare services emphasise that they believe [X] must stay where he is.","When it comes to going to church, [X] has not been to church that many times yet. [X] still sleeps every morning, so the foster parents have often taken turns going to church or being at home with [him]. [The applicant] scoffs a little at this. The caseworker continues that when [X] stops sleeping in the morning, there is a high probability that [X] will join [the family] in church more often. This is an important part of this family\u2019s everyday life and when [X] lives there it is natural that he accompanies them. As he grows older, it will be natural to consider his wishes about whether or not he attends church with them. In addition, they will inform and teach [X] about Somalia, Islam and his [birth] culture to the extent that they are capable of doing so here in Norway.","Later when [X] grows up and if [the applicant] and he have a good relationship, it is not inconceivable that he can go with her to the mosque, but not now [while] he is little. This is something we need to eventually revisit.\u201d","31.On 3 October 2012 the child welfare services sent a letter to the applicant, stating:","\u201cReference is made to the meeting with [the applicant] on 29 August 2012. At the meeting, [the applicant] stated that she does not want [X] to eat pork and go to church. [The applicant] asked the child welfare services for a letter describing how they relate to this wish.","The order to take [X] into care was heard by both the County Social Welfare Board ... (10December 2010) and ... the District Court (6 September 2011). In both instances, the courts found in favour of the child welfare services and the child welfare services have had [X] in their care since December 2010. In their decisions and judgments, none of the courts has ruled on matters that have to do with the practice of religion.","Both the child welfare services and the foster home wish for good collaboration with the mother and seek to show respect for her religious beliefs. As the child welfare services see it, this is a long-term placement. This means that [X] will most likely stay in the foster home until he is an adult. [X] will grow up in the foster home and be an integrated part of the family.","The foster parents have Christian beliefs, attend church regularly, and a large part of their social relationships are through the church. As the child welfare services see it, it will not be in [X]\u2019s best interests not to allow him to be a part of this. [X] will follow the foster family\u2019s everyday life and, as a result, will go with them to church.","The foster family will not have the right to register him as a member of any denomination without the mother\u2019s consent. When [X] is 15 years old, he can register or deregister himself as a member of denominations; see section 32 of the Children Act.","As [X] grows up, it will be natural to inform him about Islam and Somalia, based on his understanding and interest. Both foster parents are very enthusiastic about this. They fully appreciate that it is important to take his history seriously.","At a meeting with the foster parents and the child welfare services on 20 September 2012, the foster parents agreed to arrange for [X] to be served as little pork as possible. They have respect and understanding for [the applicant]\u2019s religious beliefs. The foster parents will try to facilitate her request regarding this as far as possible. However, they cannot rule out that [X] will eat pork on rare occasions.\u201d","32.On 11 September 2013 the child welfare services applied to the County Social Welfare Board for an order to withdraw the applicant\u2019s parental responsibility in respect of X, and for consent to his adoption by the foster parents. An alternative request, that the applicant be refused contact with X, was also lodged.","33.In connection with the foster parents\u2019 application for adoption, the child welfare services prepared a report on the adoption applicants, dated 11October 2013. Under the heading \u201cMotive for adopting\u201d, the following information, inter alia, was included:","\u201cCulture and religion are part of the thinking around adoption. It will be easier for [X] if he can be allowed to grow up with them without other disruptive elements regarding culture and religion. They know he will ask [about it] and they know it is important for him to obtain answers to questions that concern his differences in terms of skin colour, where he was born, etc. This is something they want to take seriously in order to be prepared to deal with his interest.","Also, when it comes to knowledge of his biological origins, they recognise that there will be work for them to do as [X] grows up. It is important to know your biological origins and we will not prevent this, say both [the adoptive parents]. On several occasions during their time as foster parents for the boy, the couple has expressed an interest in the child\u2019s family, not only in Norway, but also in Somalia. If this (knowledge of his biological origins) becomes a strong desire before he turns 18, we must assess it based on his maturity, says [the adoptive mother]. How will this information affect him? Is this the right time?\u201d","34.The Board, composed of one lawyer qualified to act as a professional judge, one psychologist and one lay person, heard the case from 27 to 28February 2014. The meeting was attended by the municipality\u2019s representative and its counsel, and by the applicant and her counsel. Testimony was given by twelve witnesses and an expert, K.P.","35.In its decision of 21 March 2014 the Board granted the child welfare services\u2019 principal request. It found that X had become so attached to his foster parents that removing him from their home could lead to serious problems; it also found that the applicant would be permanently unable to provide him with proper care. Based on an overall assessment of the general and individual factors in the case, the Board found that there were particularly compelling reasons for granting consent to the foster parents to adopt X. In its view, adoption would be in X\u2019s best interests, in that it would create stability and security for him. Adoption would also be more effective than long-term foster placement in contributing to his recovery at the personality level (tilheling p\u00e5 det personlighetsmessige plan). X\u2019s rights would be strengthened through adoption and he would gain a stronger identity as a member of a caring family.","36.The Board stated that it considered it very important for the development of X\u2019s identity, and for his understanding of his own life situation, that he be given information about his biological family in due course. The foster parents had expressed their willingness to contribute to providing X with information about his biological mother and her culture when he showed sufficient maturity to be able to benefit from such information. X\u2019s identity would not be kept hidden from him, nor would the foster parents try to hide him should they happen to meet the applicant in the street.","37.Furthermore, the Board stated that X had already been placed in an ethnically Norwegian foster home. The foster parents were active Christians. He had lived in this environment for more than three years, and this was where he would grow up. His relationship with his mother had been broken off so early that one could not say that the placement had entailed a break with his culture and religion. It had involved a break with his cultural and religious heritage, however. Contact with his mother in the years ahead could potentially help to promote identity-forming values related to ethnicity in X. However, this factor could not be given decisive weight as an argument against adoption. Since contact with the applicant reactivated dysfunctional responses in X, the importance of the cultural aspect had to be deemed as being of secondary importance in relation to safeguarding X\u2019s fundamental personality development.","38.In addition, the Board considered that adoption would place X on an equal footing with the foster parents\u2019 four biological children, in particular one of them who still lived at their home and with whom X was accordingly growing up. Equal status with the latter could promote X\u2019s feeling of equality, and this was an important consideration in favour of allowing the foster parents to adopt him.","39.Following an appeal by the applicant against the Board\u2019s decision, the District Court appointed a psychological expert, S.H.G. In his report of 13October 2014, the psychologist stated, inter alia, under the heading \u201cThe present situation\u201d:","\u201cThe mother alternates between a traditional and more Norwegian style of dressing, but wears her head garment, is loyal to her Muslim culture and practices her religion. She stresses how much these values mean to her and believes that this also applies to her son \u2013 especially as he grows older. She has respect for other religions but is not happy for him to be taken to church without ever being taken to a mosque. ...","The foster parents are active Christians and members of the Norwegian Missionary Society, but state that they have great respect for the mother\u2019s religion. The foster parents are passing on their culture to the children as this is what they know, but they emphasise independence and self-confidence.\u201d","In a chapter entitled \u201cReport on interviews with and observation of the mother, child, foster parents, and information from collateral sources\u201d, the following information, inter alia, was included under the heading \u201cVisit to the foster parents\u2019 home\u201d:","\u201cCulture and religion? He came at such an early stage, so we have transferred what we know \u2013 Christian culture. But the foster mother says they have great respect for the mother\u2019s culture and religion. We let our children decide for themselves, she says. We consider self-confidence and self-esteem to be most important. However, it would do him major harm to break with this now and enter something new. We will most likely tell him about the differences eventually and strengthen his identity. We could not take him to church because of the noise levels. We do so now, but it does not work optimally because there are too many people. We keep company with Christian people and read Christian books. He would also be unable to function in a mosque.\u201d","The expert recommended that the District Court withhold consent to the adoption, and that the amount of access between the applicant and X should be gradually increased.","40.The District Court held a hearing from 4 to 6 November 2014. The court\u2019s bench was composed of one professional judge, one psychologist and one lay person. Eight witnesses were called. The court-appointed expert attended and was present throughout the hearing and testified after the other evidence had been presented.","41.In its judgment of 21 November 2014, the District Court upheld the Board\u2019s decision. The District Court endorsed the Board\u2019s grounds for depriving the applicant of parental responsibility and granting consent for adoption, and referred to the Board\u2019s reasons, but with some clarifications and additions. The District Court concurred with the assessments of psychologist K.P., who had been appointed as an expert before the Board (see paragraph 34 above), and not with those of S.H.G., who had been appointed as an expert by the District Court (see paragraph 39 above).","42.Within the reasons as to why the District Court concluded that an adoption would pertain to X\u2019s best interest, the judgment stated, inter alia, that X had already been placed in an ethnically Norwegian foster home with a family of practising Christians. He had lived in that foster home for almost four years, and this was relevant to the District Court\u2019s assessment as to where he would grow up. The District Court considered that the break with X\u2019s cultural heritage had occurred when he was first taken into care.","43.On a further appeal by the applicant, the High Court held a hearing from 12 to 13 May 2015. The High Court\u2019s bench comprised three professional judges, one psychologist and one lay person. The applicant attended, together with her counsel. Eight witnesses gave evidence, of whom four, including psychologists S.H.G. and K.P., gave expert testimony. Before the High Court, the applicant acknowledged that X had become so attached to his foster parents that a return to her would be difficult. She also accepted that X had reacted badly to the contact sessions and accepted that contact should possibly be avoided at certain periods in the future. However, she would not apply for his return and she argued that at that specific moment it could not be concluded with certainty that any contact with her in the future would be against X\u2019s best interests. In particular, she argued that his need to keep in touch with his cultural and religious roots indicated that the possibility for future contact should be kept open.","44.In its judgment of 27 May 2015 the High Court stated that the parties agreed that X had become so attached to his foster parents that removing him could lead to serious problems, and that the High Court bench agreed unanimously with the parties on this point. It went on to reiterate that X had been placed with the foster parents when he was one year old and had, at the time of its judgment, been with them for four and a half years. Before this, he had spent two and a half months in an emergency foster home. He had lived with his biological mother for only the first ten months of his life. He regarded the foster parents as his parents and all the available information indicated that he was strongly attached to them.","45.In addition, X was a vulnerable child with special care needs. It had to be assumed that he would be at particular risk of serious harm if he were removed from the environment he was used to and placed in the care of his biological mother, with whom he had only had sporadic contact. Since a return to the applicant was in any event not being envisaged (ei tilbakef\u00f8ring under alle omstende [er] uaktuell), it was unnecessary to decide on whether the applicant would be permanently incapable of providing appropriate care for him.","46.The decision in the case rested on an assessment of whether adoption would be in X\u2019s best interests. A majority in the High Court concluded that it would, and generally agreed with the grounds given for this finding in the Board\u2019s decision and the District Court\u2019s judgment.","47.In the majority\u2019s view, there were several risk factors relating to the applicant\u2019s ability to provide proper care. In addition, many (fleire) persons had observed that the applicant had had serious difficulties caring for X during the first year in Norway. By the time of the High Court judgment, the applicant was older and seemed more mature. Given her age and history, it was understandable that she had experienced considerable challenges in caring for X. Her son had to be regarded as a child with special care needs and was possibly suffering from early attachment disorder. The majority found that he had been subjected to gross neglect, both physically and emotionally. The parent-child institution had indicated that he had been in physical danger several times while the applicant and X were staying there. Another witness, M.L., had also been concerned about the applicant\u2019s ability to care for X on a practical level. In the High Court\u2019s view, the most important aspect of the neglect nonetheless appeared to be the lack of emotional contact and security.","48.The High Court\u2019s majority stated that these findings might reflect the applicant\u2019s psychological functioning and her life circumstances during the pregnancy, birth and postnatal period, but that this had nevertheless created a serious situation for X and his development. He had displayed trauma reactions on seeing his mother again. These reactions following contact sessions could, for instance, include screaming for several hours at a time, or being agitated and anxious for several days. Similar reactions had also been noted at the kindergarten. His reactions had been observed both during and after the contact sessions. The hospital had also made a statement about them. The majority disagreed with psychologist S.H.G., who had considered that X\u2019s reactions could be related to his emergency placement in care in 2010, as it found it unlikely that a separation from his biological mother when X had been ten months old could give rise to such reactions later in his life.","49.X had become calmer after the contact sessions had been discontinued in 2013. Since then, he had apparently only met the applicant twice. He had found these emotional outbursts after contact sessions with the applicant to be very stressful. He was still vulnerable to noise, large crowds and too many stimuli. This indicated that he was highly sensitive, which was to be expected in someone who was displaying reactions to trauma.","50.In the majority\u2019s view, X needed to feel as secure as possible in his relationships. He needed stability, calm and continuity in the place where he lived at the time, namely in the foster home. The stronger the psychological development that could be secured, the better equipped he would be to deal with any identity issues that might arise during adolescence. All the available information suggested that X had a strong and fundamental attachment to his foster parents and foster family. Great emphasis had to be placed on this relationship, in line with the case-law of the Supreme Court.","51.The considerations of ensuring that a particularly vulnerable child would have a continued attachment to an environment in which he was deeply rooted had to be weighed against other relevant weighty considerations. The High Court reiterated that, in all cases, adoption entailed a breach of the biological principle, which was a major element in any decision. In the instant case, the foster parents had been unwilling to accept an \u201copen adoption\u201d, with future contact visits foreseen for the applicant, and there were additional aspects in the case related to ethnicity, culture and religion, and religious conversion.The fact that the applicant was a Muslim and the intended adoptive parents Christian raised special issues, which were further highlighted by the fact that the latter were active Christians who intended to baptise the adopted child.","52.An expert witness \u2013 N.S., a specialist in religious studies \u2013 had stated before the High Court that in Islam, the children of Muslims were regarded as Muslims as long as they had not been, for example, baptised. The parties had referred to a White Paper from a Government-appointed committee (NOU 2012: 5 Bedre beskyttelse av barns utvikling), containing an assessment of adoption from a cultural and Islamic perspective. The White Paper stated that religion could be an obstacle to adoption for practicing Muslim families, since Islam had a general prohibition against adoption in the sense of making children born to other biological parents one\u2019s own. Elsewhere, the White Paper had noted that various Muslim countries and Muslim schools of law had differing views on adoption, but they all had a prohibition against breaking the ties with the adoptive child\u2019s biological family. The White Paper had concluded that the child welfare services faced a particular challenge when considering adoption as a child welfare measure for Muslim children. One of the members of the committee which drafted the White Paper had testified as an expert witness before the High Court, and stated that the committee had not wished to make recommendations one way or another with regard to the above observations; she had emphasised that each case was to be assessed on the basis of the child\u2019s needs.","53.Based on international law sources, the High Court had not found that any prohibition could be inferred against the adoption of children from a Muslim background in Norway. Article 20(3) of the United Nations Convention on the Rights of the Child stated that when possible solutions, including adoption, were assessed, \u201cdue regard shall be paid to the desirability of continuity in a child\u2019s upbringing and to the child\u2019s ethnic, religious, cultural and linguistic background\u201d (see paragraph 73 below). The best interests of the child should be a primary consideration in all actions and decisions concerning children, pursuant to Article 3(1) of the United Nations Convention on the Rights of the Child and the second paragraph of Article 104 of the Norwegian Constitution (see paragraphs 73 and 59 below, respectively). In adoption cases, the child\u2019s best interests should be the paramount consideration, under Article 21 of the United Nations Convention on the Rights of the Child (see paragraph 73 below).","54.The High Court noted that the County Social Welfare Board had commented, in the context of the care order, on the choice of foster home, based on ethnic, cultural and religious considerations. Further information about which assessments had been carried out by the child welfare services when X had been placed in a foster home with ethnically Norwegian parents had not emerged during the presentation of evidence, but the High Court assumed that there had been no available foster parents with a more similar cultural background. It was known that there was a serious shortage of foster parents from minority backgrounds. Regardless of how the choice of foster home was otherwise evaluated, the initial placement had a bearing on the assessment of what was in the best interests of X at the time of the High Court\u2019s judgment.","55.In the foster home, X had been brought up in accordance with his foster parents\u2019 values. It had to be assumed that it was these values that he regarded as his own and with which he identified at the time of the High Court\u2019s assessment. In this situation, consideration of the ethnicity, culture and religion of the biological family had to carry less weight than it would otherwise. In the event of a further foster home placement, X would also be exposed to the values of those foster parents. There was nonetheless an important distinction between being a foster child and an adopted child, since the parents, if the child were adopted, planned to baptise him and change his name. The applicant would experience this step as a final break with the religious values held by her and would find it difficult to accept. It was possible to feel that a more flexible solution would be to postpone the baptism until the child himself could decide on the matter when he turned fifteen, but nonetheless the majority could not see that these circumstances carried decisive weight against adoption.","56.The High Court\u2019s majority considered that a further foster home placement could give rise to problems in connection with, for example, the applicant\u2019s wishes that X be circumcised, attend Koranic school and follow Muslim food traditions. Her statement in the High Court that she had considered it best for X to remain with his foster parents had not been called into question, but the High Court was somehow uncertain (noko usikker) as to how permanent this opinion would be, and whether demands for X to be returned to her care would be made in future. A vulnerable boy such as X required a calm and stable situation. Adoption would create clarity, strengthen the development of X\u2019s identity and make him an equal member of the family. In the light of the above considerations, the majority of the High Court bench found that there were particularly compelling reasons for authorising the adoption and thus voted to dismiss the applicant\u2019s appeal.","57.The minority, one of the lay judges, found that the reasons for allowing the adoption were not sufficiently compelling, but that there were reasons for refusing to grant the applicant contact rights for the time being. The minority viewed the applicant\u2019s ability to provide care in a slightly more positive light than the majority and emphasised that, for the moment, a continued foster home arrangement would be more flexible than adoption. Greater weight should also be placed on ethnic, cultural and religious considerations in the overall assessment of what would be in X\u2019s best interests at the given time; this was highlighted in particular by the fact that adoption would entail religious conversion.","58.On 23 September 2015 the Supreme Court\u2019s Appeals Leave Committee (H\u00f8yesteretts ankeutvalg) refused the applicant leave to appeal.","RELEVANT DOMESTIC and international LAW AND PRACTICE","59.Articles 16, 102 and 104 of the Norwegian Constitution of 17May 1814 (Grunnloven), as revised in May 2014, read as follows:","Article 16","\u201cAll inhabitants of the realm shall have the right to free exercise of their religion. The Church of Norway, an Evangelical-Lutheran church, will remain the Established Church of Norway and will as such be supported by the State. Detailed provisions as to its system will be laid down by law. All religious and belief communities should be supported on equal terms.\u201d","Article 102","\u201cEveryone has the right to the respect of their privacy and family life, their home and their communication. Search of private homes shall not be made except in criminal cases. The authorities of the state shall ensure the protection of personal integrity.\u201d","Article 104","\u201cChildren have the right to respect for their human dignity. They have the right to be heard in questions that concern them, and due weight shall be attached to their views in accordance with their age and development.","For actions and decisions that affect children, the best interests of the child shall be a fundamental consideration.","Children have the right to protection of their personal integrity. The authorities of the State shall create conditions that facilitate the child\u2019s development, including ensuring that the child is provided with the necessary economic, social and health security, preferably within their own family.\u201d","It follows from the Supreme Court\u2019s case-law \u2013 for instance its judgment of 29 January 2015 (Norsk Retstidende (Rt-2015-93), paragraphs 57 and 67) \u2013 that the above provisions are to be interpreted and applied in the light of their international law models, which include the United Nations Convention on the Rights of the Child, the European Convention on Human Rights and the case-law of the European Court of Human Rights.","60.Sections 2 and 3 of the Human Rights Act of 21 May 1999 (menneskerettsloven) read, in so far as relevant:","Section 2","\u201cThe following Conventions shall have the force of Norwegian law in so far as they are binding for Norway:","1. The Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 of 11 May 1994 to the Convention, together with the following Protocols: ...","4. The Convention of 20 November 1989 on the Rights of the Child, together with the following protocols: ...\u201d","Section 3","\u201cThe provisions of the Conventions and Protocols mentioned in section 2 shall take precedence over any other legislative provisions that conflict with them.\u201d","61.The two first paragraphs of section 4-15, section 4-20 and the second paragraph of section 4-22 of the Child Welfare Act of 17 July 1992 (barnevernloven) read:","Section 4-15. Choice of placement in the individual case","\u201cWithin the framework determined in section 4-14, the placement shall be chosen on the basis of the child\u2019s distinctive characteristics and need for care and training in a stable environment. Due account shall also be taken of the desirability of ensuring continuity in the child\u2019s upbringing, and of the child\u2019s ethnic, religious, cultural and linguistic background. Account shall also be taken of the likely duration of the placement, and of whether it is possible and desirable for the child to have access to and other contact with the parents.","In its proposal to the county social welfare board the child welfare service shall give an account of the points of view upon which the choice of placement in the individual case should be based. In its order the county social welfare board may attach conditions to the placement. If it is not possible for the child to be placed as stipulated in the proposal or the order, the matter shall be resubmitted to the county social welfare board.\u201d","Section 4-20. Deprivation of parental responsibility. Adoption","\u201cIf a county social welfare board has made a care order for a child, the county social welfare board may also decide that the parents shall be deprived of all parental responsibility. If, as a result of the parents being deprived of parental responsibility, the child is left without a guardian, the county social welfare board shall as soon as possible take steps to have a new guardian appointed for the child.","When an order has been made depriving the parents of parental responsibility, the county social welfare board may give its consent for a child to be adopted by people other than the parents.","Consent may be given if","(a) it must be regarded as probable that the parents will be permanently unable to provide the child with proper care or the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her, and","(b) adoption would be in the child\u2019s best interests, and","(c) the adoption applicants have been the child\u2019s foster parents and have shown themselves fit to bring up the child as their own, and","(d) the conditions for granting an adoption under the Adoption Act are satisfied.","When the county social welfare board consents to adoption, the Ministry shall issue the adoption order.\u201d","Section 4-22. Foster homes","\u201cPersons selected as foster parents shall have a special aptitude for giving children a secure and good home, and be capable of discharging their responsibilities as foster parents in accordance with the conditions on which the duration of the placement etc. (see section 4-15), is based.\u201d","62.On 27 March 2020, the Supreme Court, sitting in a Grand Chamber formation, gave judgment and decisions in three childcare cases (HR\u20112020\u2011661-S, HR-2020-662-S and HR-2020-663-S) in order to draw up guidelines for the application of the Child Welfare Act in the light of the European Court of Human Rights\u2019 judgments in the case of Strand Lobben and Others v. Norway ([GC], no. 37283\/13, 10 September 2019) and subsequent cases concerning childcare measures adopted in the respondent State.","63.One of the above rulings (HR-2020-661-S) concerned an appeal against the High Court\u2019s refusal to grant leave to appeal in a case about deprivation of parental responsibility and consent to adoption, in which the Supreme Court carried out an in-depth examination of the Court\u2019s case-law in conjunction with the domestic case-law and practice, in order to clarify the Convention requirements and identify and resolve any possible inconsistencies with a view to ensuring compliance with the Convention.","64.In respect of cases where the replacement of foster care with adoption was at issue, the Supreme Court concluded that the general legal conditions, as they were expressed in the Child Welfare Act and the Supreme Court\u2019s case-law, were compliant with the Convention and the Court\u2019s case-law and thus could be maintained, but found that adjustments were still called for in Norwegian child welfare practice. Under the heading \u201cSummarising remarks on reunification\u201d, the Supreme Court stated the following:","\u201c(142) Based on the presentation of the Child Welfare Act as interpreted in case-law and judgments by the European Court of Human Rights, the status of the law may in my opinion be summarised as follows:","(143) Under both Norwegian law and the European Convention on Human Rights, the overall goal is to have the care order revoked and the family reunited. A care order is therefore always temporary as a starting point. The authorities have a positive duty to strive actively to maintain the relationship between the child and the parents and to facilitate reunification. This implies that the authorities must monitor developments closely. Contact rights and assistance measures are crucial here. As long as reunification is the goal, contact must be arranged to make this possible. The authorities are to ensure, to the extent possible, that the contact sessions are of a good quality. If the sessions do not work well, one must try out adjustments or alternatives, for instance arranging them elsewhere, or under guidance.","(144) As long as family reunification is the goal, the purpose of access is not only to ensure that the child knows who his or her parents are, but also to preserve the possibility of reunification. This requires a thorough assessment of the frequency and quality of the contact sessions. And even when reunification is not possible, there is an intrinsic value in maintaining family bonds, so long as this does not harm the child.","(145) In my opinion, and depending on the situation, the child welfare services should in principle not be prevented early in the process \u2013 when choosing where to place a child (section 4-14 of the Child Welfare Act) and preparing a care plan (section 4-15) \u2013 from assuming that the placement will be long-term. If siblings are involved, an individual assessment must be made with regard to each child. However, the extent of contact must in any case be determined with a view to a future return of the child to his or her biological parents. This applies until a thorough and individual assessment at a later stage demonstrates that this goal should be abandoned, despite the authorities\u2019 duty to facilitate reunification. In any event, the frequency of the contact sessions cannot be determined in a standard way, and it must be borne in mind that a strict visiting regime may render reunification more difficult.","(146) It is crucial that the authorities do their utmost to facilitate family reunification. However, this goal may be abandoned if the biological parents have proved particularly unfit; see, for instance, Strand Lobben, paragraph 207. Such a situation may also affect which measures the child welfare authorities need to apply. In this assessment the interests of the child are also of paramount importance. However, this does not automatically preclude contact altogether while the child is in foster care. The parents may be competent in contact situations but lack the caring skills necessary for reunification. Maintaining family ties, even if the goal of reunification has been abandoned, still has a value in itself.","(147) Secondly, the parents cannot request measures that may harm the child\u2019s health and development; see Strand Lobben, paragraph 207. Adoption may therefore take place if it can be established that continued placement will harm the child\u2019s health or development. In addition, reunification may \u2013 even in the absence of such damaging effects \u2013 be ruled out when a considerable amount of time has passed since the child was originally taken into care, so that the child\u2019s need of stability overrides the interests of the parents; see paragraph 208 of the judgment. In any event, the child welfare authorities and the courts must, before deciding on a possible adoption, make an individual assessment based on a solid factual basis and thorough proceedings.","(148) Accordingly, in these three situations, one must bear in mind that it is in the very nature of adoption that no real prospects for family reunification exist and that it is instead in the child\u2019s best interests to be placed permanently in a new family; see Strand Lobben, paragraph 209.\u201d","65.In this Grand Chamber decision, the Supreme Court also stated that judgments by the European Court had demonstrated that the decision\u2011making process, the balancing exercise or the reasoning had not always been adequate. In particular, the Court had found violations with regard to the authorities\u2019 duty to work towards reunion of the child and the parents. As to the dilemmas represented by the choice of perspective when assessing possible errors or shortcomings, the Supreme Court stated as follows:","\u201c(114) When Norwegian courts, and ultimately the Supreme Court, review orders issued by the child welfare authorities, they apply the Child Welfare Act in line with the principle of the best interests of the child; see the second paragraph of Article 104 of the Constitution, Articles 3 and 9 of the Convention on the Rights of the Child and section 4-1 of the Child Welfare Act, which I have already mentioned. At the same time, the case-law must be in accordance with the European Convention on Human Rights, and the Supreme Court has adjusted its interpretation of the Child Welfare Act to the Court\u2019s case-law.","(115) If errors have been committed by the child welfare services or the County Social Welfare Board at an earlier stage of the proceedings (for instance due to inadequate remedial measures, or because the basis for the decision or its reasoning was unsatisfactory), the court may, depending on the circumstances, seek to remedy such errors by setting aside a care order or an adoption order. In other cases, the court may alter a previous decision, for example by increasing the granted access. However, if no such options are available and depending on the situation, the court will have to choose foster care or adoption if it is clear at the time of the judgment that this is in the best interests of the child, despite previous errors in the consideration of the case. To what extent not just the error, but also the final Norwegian ruling, must be regarded as a violation of Article 8, if the Court finds a violation at a later stage, thus relies on an interpretation of the Court\u2019s judgment.","(116) In order to prevent such a situation from occurring before the review instances, it is important that the child welfare services and the County Social Welfare Board \u2013 in seeking to identify the measures that best serve the child \u2013 consider from the very outset all relevant requirements laid down in the second paragraph of Article 104 of the Constitution, Article 8 of the Convention, the Convention on the Rights of the Child and chapter 4 of the Child Welfare Act.\u201d","66.The Supreme Court delivered a further decision on 11 June 2020 (HR-2020-1229-U), in which it also stressed the temporary nature of care orders and the aim of reunification in the light of this Court\u2019s case-law. Furthermore, it decided on two cases concerning the conditions under domestic law for lifting care orders on 15 September 2020 (HR\u20112020\u20111788\u2011A and HR-2020-1789-A). With reference to its decisions of 27 March 2020, it reiterated on 15 September 2020 that the general conditions set out in the Child Welfare Act and domestic case-law \u2013 including the \u201cthreshold\u201d for issuing care orders \u2013 could be maintained, but that the practice in respect of their application to concrete cases needed some adjustment in the light of the judgments of the European Court of Human Rights.","67.A new child welfare act was adopted by Parliament on 18 June 2021 but has not yet entered into force. The relevant preparatory works (Bill No.133 (2020-2021) (Ny barnevernslov), page 35) stated that this Court\u2019s judgments as well as the above-mentioned case-law from the Supreme Court had been central to the work leading to the proposal of the new act.","68.The Foster Home Regulation of 18 December 2003 (fosterhjemsforskriften) includes further detailed rules on foster homes. Under section 3 of the Regulation, foster parents must have the special abilities, time and energy to provide the child with a safe and good home. Foster parents must have stable living conditions, normal good health, and good interpersonal skills. They also must have the finances, home and social network required to provide the child with the opportunity to live a full life. Section 4 of the Regulation states that in choosing a foster home, the child welfare services are to give decisive importance to what is in the child\u2019s best interests. The child welfare services must assess whether the foster parents have the requisite abilities to take care of the individual needs of the child. The child welfare services are to give appropriate consideration to the child\u2019s ethnic, religious, cultural and linguistic background.","69.The Ministry of Children and Families (Barne- og familiedepartementet) issued a circular on guidelines in respect of foster homes on 15 July 2004 (Q-2004-1072 B). Among other points, the circular states that the child welfare services must give appropriate consideration to the child\u2019s ethnic, religious, cultural and linguistic background. Where the child\u2019s parents belong to a religious or linguistic minority, this will not always be possible. With regard to religious background, the child welfare services should nevertheless, to the extent possible, avoid placing children with foster parents who have a philosophy of life that differs substantially from that of the parents.","70.The Act relating to Children and Parents (the Children Act) of 8April 1981 (barnelova) included at the relevant time the following provisions:","Section 30. Meaning of parental responsibility","\u201cThe child is entitled to care and consideration from those who have parental responsibility. These persons have the right and the duty to take decisions for the child in personal matters within the limits set by sections 31 to 33. Parental responsibility shall be exercised on the basis of the child\u2019s interests and needs.","Those who have parental responsibility are under an obligation to bring up and maintain the child properly. They shall ensure that the child receives an education according to his or her ability and aptitude.","The child must not be subjected to violence or in any other way be treated so as to harm or endanger his or her mental or physical health. This shall also apply when violence is carried out in connection with the child\u2019s upbringing. Use of violence and frightening or annoying behaviour or other inconsiderate conduct towards the child is prohibited. ...\u201d","Section 31. The child\u2019s right of co-determination","\u201cAs and when the child becomes able to form his or her own point of view on matters that concern him or her, the parents shall consider the child\u2019s opinion before making a decision on the child\u2019s personal situation. Importance shall be attached to the opinion of the child according to his or her age and maturity. The same applies to other persons with custody of the child or who are involved with the child.","A child who has reached the age of seven and younger children who are able to form their own points of view must be provided with information and opportunities to express their opinions before decisions are taken concerning personal matters affecting them, including parental responsibility, custody and access. The opinions of the child shall be given weight according to his or her age and maturity. When the child reaches the age of 12 his or her opinion shall carry significant weight.\u201d","Section 32. Education, membership of associations","\u201cChildren who have reached the age of 15 shall themselves decide the question of choice of education and of applying for membership of or resigning from associations.\u201d","Section 33. The child\u2019s right to make his or her own decisions","\u201cParents shall steadily extend the child\u2019s right to make his or her own decisions as he or she gets older and until he or she reaches the age of 18.\u201d","71.The Adoption Act of 28 February 1986 (adopsjonsloven), in force at the relevant time, contained, inter alia, the following provision:","Section 13","\u201cOn adoption, the adopted child and his or her heirs shall have the same legal status as if the adopted child had been the adoptive parents\u2019 biological child, unless otherwise provided by section 14 or another statute. At the same time, the child\u2019s legal relationship to his or her original family shall cease, unless otherwise provided by special statute. ...\u201d","72.The Act relating to religious communities, etc. of 13 June 1969 (lov om trudomssamfunn og ymist anna) includes the following provisions:","Section 3","\u201cAnyone over the age of 15 may join or resign from a religious community.\u201d","Section 6","\u201cWhen the parents do not both belong to the Church of Norway they may together make the child a member of a religious community or withdraw the child from such a community as long as the child is under 15 years of age.","When only one of the parents has parental responsibility for the child, he or she may make this decision alone.","If neither of the parents has parental responsibility for the child, the guardian may make the child a member of a religious community or withdraw the child from such a community.","If possible, children of 12 years of age or more shall be allowed to express their opinions concerning registration or resignation of membership.\u201d","73.Articles 3, 5, 8, 9, 14, 20, 21 and 30 of the United Nations Convention on the Rights of the Child, adopted on 20 November 1989, in so far as relevant, read:","Article 3","\u201c1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.","2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.","3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.\u201d","Article 5","\u201cStates Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.\u201d","Article 8","\u201c1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. ...\u201d","Article 9","\u201c1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child\u2019s place of residence.","2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.","3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child\u2019s best interests. ...\u201d","Article 14","\u201c1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.","2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.","3. Freedom to manifest one\u2019s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.\u201d","Article 20","\u201c1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.","2. States Parties shall in accordance with their national laws ensure alternative care for such a child.","3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child\u2019s upbringing and to the child\u2019s ethnic, religious, cultural and linguistic background.\u201d","Article 21","\u201cStates Parties that recognize and\/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:","(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child\u2019s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; ...\u201d","Article 30","\u201cIn those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.\u201d","74.Resolution 64\/142 on Guidelines for the Alternative Care of Children, adopted by the United Nations General Assembly on 18December 2009, includes the following paragraphs:","\u201c11. All decisions concerning alternative care should take full account of the desirability, in principle, of maintaining the child as close as possible to his\/her habitual place of residence, in order to facilitate contact and potential reintegration with his\/her family and to minimize disruption of his\/her educational, cultural and social life. ...","16. Attention must be paid to promoting and safeguarding all other rights of special pertinence to the situation of children without parental care, including, but not limited to, access to education, health and other basic services, the right to identity, freedom of religion or belief, language and protection of property and inheritance rights. ...","57. Decision-making on alternative care in the best interests of the child should take place through a judicial, administrative or other adequate and recognized procedure, with legal safeguards, including, where appropriate, legal representation on behalf of children in any legal proceedings. It should be based on rigorous assessment, planning and review, through established structures and mechanisms, and should be carried out on a case-by-case basis, by suitably qualified professionals in a multidisciplinary team, wherever possible. It should involve full consultation at all stages with the child, according to his\/her evolving capacities, and with his\/her parents or legal guardians. To this end, all concerned should be provided with the necessary information on which to base their opinion. States should make every effort to provide adequate resources and channels for the training and recognition of the professionals responsible for determining the best form of care so as to facilitate compliance with these provisions. ...","58. Assessment should be carried out expeditiously, thoroughly and carefully. It should take into account the child\u2019s immediate safety and well-being, as well as his\/her longer-term care and development, and should cover the child\u2019s personal and developmental characteristics, ethnic, cultural, linguistic and religious background, family and social environment, medical history and any special needs. ...","88. Children should be allowed to satisfy the needs of their religious and spiritual life, including by receiving visits from a qualified representative of their religion, and to freely decide whether or not to participate in religious services, religious education or counselling. The child\u2019s own religious background should be respected, and no child should be encouraged or persuaded to change his\/her religion or belief during a care placement.\u201d","75.The United Nations Committee on the Rights of the Child General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, includes, inter alia, the following paragraphs:","\u201c38. In respect of adoption (art. 21), the right of best interests is further strengthened; it is not simply to be \u201ca primary consideration\u201d but \u201cthe paramount consideration\u201d. Indeed, the best interests of the child are to be the determining factor when taking a decision on adoption, but also on other issues.","...","55. Children are not a homogeneous group and therefore diversity must be taken into account when assessing their best interests. The identity of the child includes characteristics such as sex, sexual orientation, national origin, religion and beliefs, cultural identity, personality. Although children and young people share basic universal needs, the expression of those needs depends on a wide range of personal, physical, social and cultural aspects, including their evolving capacities. The right of the child to preserve his or her identity is guaranteed by the Convention (art. 8) and must be respected and taken into consideration in the assessment of the child\u2019s best interests.","56. Regarding religious and cultural identity, for example, when considering a foster home or placement for a child, due regard shall be paid to the desirability of continuity in a child\u2019s upbringing and to the child\u2019s ethnic, religious, cultural and linguistic background (art. 20, para. 3), and the decision-maker must take into consideration this specific context when assessing and determining the child\u2019s best interests. The same applies in cases of adoption, separation from or divorce of parents. Due consideration of the child\u2019s best interests implies that children have access to the culture (and language, if possible) of their country and family of origin, and the opportunity to access information about their biological family, in accordance with the legal and professional regulations of the given country (see art. 9, para. 4).","57. Although preservation of religious and cultural values and traditions as part of the identity of the child must be taken into consideration, practices that are inconsistent or incompatible with the rights established in the Convention are not in the child\u2019s best interests. Cultural identity cannot excuse or justify the perpetuation by decision-makers and authorities of traditions and cultural values that deny the child or children the rights guaranteed by the Convention.\u201d","76.The following remarks were included in the United Nations Committee on the Rights of the Child\u2019s Concluding observations on the combined fifth and sixth periodic reports of Norway (CRC\/C\/NOR\/CO\/5-6) of 4 July 2018:","\u201c21. Drawing the State party\u2019s attention to the Guidelines for the Alternative Care of Children, the Committee emphasizes that financial and material poverty \u2014 or conditions directly and uniquely attributable to such poverty \u2014 should never be the sole justification for removing a child from parental care, for receiving a child into alternative care or for preventing a child\u2019s social reintegration. In this regard, the Committee recommends that the State party: ...","(f) Take the measures necessary, including adequate training of personnel, to ensure that children belonging to an indigenous or national minority group who are placed in alternative care learn about and maintain their connection to their native culture; ...\u201d","77.Article 18 of the United Nations International Covenant on Civil and Political Rights, adopted on 16 December 1966, reads as follows:","Article 18","\u201c1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.","2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.","3. Freedom to manifest one\u2019s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.","4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.\u201d","78.The third paragraph of Article 13 of the United Nations International Covenant on Economic, Social and Cultural Rights, adopted on 16December 1966, reads as follows:","Article 13","\u201c3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.\u201d","79.The first to fourth paragraphs of Article 5 of the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by General Assembly resolution 36\/55 of 25 November 1981, read as follows:","Article 5","\u201c1. The parents or, as the case may be, the legal guardians of the child have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up.","2. Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents or, as the case may be, legal guardians, and shall not be compelled to receive teaching on religion or belief against the wishes of his parents or legal guardians, the best interests of the child being the guiding principle.","3. The child shall be protected from any form of discrimination on the ground of religion or belief. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, respect for freedom of religion or belief of others, and in full consciousness that his energy and talents should be devoted to the service of his fellow men.","4. In the case of a child who is not under the care either of his parents or of legal guardians, due account shall be taken of their expressed wishes or of any other proof of their wishes in the matter of religion or belief, the best interests of the child being the guiding principle.\u201d","80.The Court has considered it appropriate to conduct a comparative survey with regard to the domestic law and practice in 41 States Parties to the Convention (namely Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Croatia, Cyprus, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, the Netherlands, Montenegro, North Macedonia, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Switzerland, Turkey, Ukraine, and the United Kingdom) as it relates to the subject matter of the case.","81.According to the information available to the Court, in at least 11States or jurisdictions (Armenia, Azerbaijan, the Flemish Community of Belgium, Finland, France, Hungary, the Netherlands, Montenegro, Poland, Russia and Spain), a requirement to take account of the religious, ethnic or linguistic backgrounds in adoption or foster care proceedings follows directly from laws or regulations. In at least six States (Albania, Ireland, North Macedonia, Slovenia, Switzerland and the United Kingdom), a requirement to take into account the religious, ethnic, cultural and linguistic backgrounds of the concerned children and adults is mostly laid down not by laws or regulations but by infra-legislative administrative acts such as instructions and circulars.","82.Furthermore, in at least 15 States (Austria, Azerbaijan, Bosnia and Herzegovina, France, Italy, Moldova, Montenegro, the Netherlands, North Macedonia, Poland, Romania, Slovenia, Spain, Switzerland and the United Kingdom), the requirement to take into account the religious, ethnic, cultural and linguistic backgrounds is not shaped as an independent obligation, but as a specific aspect of the more general fundamental criterion of the \u201cbest interest of the child\u201d or \u201cthe child\u2019s welfare\u201d. Moreover, in Ireland there is an obligation to \u201cwhere possible\u201d respect the wishes of the child\u2019s guardian as to the child\u2019s religious upbringing and the religion of the prospective foster parents and in Northern Ireland there is a rather clear obligation of result. None of the other States covered by the Court\u2019s research provides a positive obligation to place the child in a family sharing his\/her religious, ethnic, cultural and linguistic identity or that of his\/her biological parents. There is only a procedural obligation to \u201ctake it into account\u201d as one of the criteria for choosing an adoptive and\/or foster family. However, it is never the weightiest or the decisive criterion, and it may be outweighed by other considerations within the general framework of the \u201cbest interest of the child\u201d."],"258":["1. The applicant, Ms G. S., is a Jamaican national, who was born in 1977 and lives in London. She was represented before the Court by Ms L. Janes of Scott-Moncrieff & Associates Ltd., a lawyer practising in London.","The circumstances of the case","2. The facts of the case, as submitted by the applicant, may be summarised as follows.","3. The applicant was charged with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled Class A drug (cocaine). On 9 February 2007 she had been stopped by customs officers after arriving into Heathrow Airport on a flight from Trinidad. Twenty-three packets of cocaine with a street value of 37,578.40 British Pounds were recovered from her person. At trial, the defence case was that at all relevant times she had acted under duress as there were threats of serious injury or death to her and\/or her young son if she had refused to comply with the demand to smuggle drugs.","4. On 30 November 2007 the applicant was convicted and sentenced to seven years\u2019 imprisonment and recommended for deportation.","5. Following her release from prison in August 2010 the applicant applied for asylum in the United Kingdom. The Secretary of State for the Home Department twice refused the application but on 3 August 2015 the First Tier Tribunal allowed her appeal against the Secretary of State\u2019s decision. In doing so, the Tribunal made a finding of fact that the applicant had been trafficked when she entered the United Kingdom carrying the drugs.","6. Following a referral by the Salvation Army, on 17 December 2015 the Competent Authority (see V.C.L. and A.N. v. the United Kingdom, nos. 77587\/12 and 74603\/12, \u00a7\u00a7 75-76, 16 February 2021) decided that, on the balance of probabilities, the applicant was a victim of trafficking.","7. In August 2017 the applicant sought an extension of time to appeal against her conviction (see paragraph 4 above) on the basis that new evidence undermined the safety of the conviction. This new evidence comprised the decisions of the Tribunal and the Competent Authority, recognising her as a victim of trafficking; a change in the law regarding victims of trafficking accused of criminal offences; and expert medical evidence which indicated that the applicant suffered memory loss as a result of a road traffic accident, that she suffered from post-traumatic stress disorder, that her IQ of 74 was in the borderline range and that she was overly-compliant according to the Gudjonsson Compliance Scale. The medical evidence indicated that she was likely to have been very vulnerable to exploitation and less able to resist pressure at the time the offence was committed.","8. On 31 July 2018 the Court of Appeal refused the applicant leave to appeal.","9. The Court of Appeal was entirely satisfied that there had been a material change in the law. The Council of Europe Convention on Action against Trafficking in Human Beings, 2005 (\u201cthe Anti-Trafficking Convention\u201d) had been ratified by the United Kingdom on 17 December 2008 and on 6 April 2013 Directive 2011\/36 on preventing and combatting trafficking in human beings of 5 April 2011 (\u201cthe Anti-Trafficking Directive\u201d) came into force in the United Kingdom. Both of these instruments contained \u201cnon-prosecution\u201d provisions which were subsequently reflected in a number of judgments of the Court of Appeal. Moreover, section 45 of the Modern Slavery Act 2015 provided an express defence to victims of trafficking who were compelled to commit an offence.","10. Under domestic law, where leave to appeal was sought out of time in a case where the law as it then stood had been applied correctly, so that any appeal hinged on a subsequent change in the law, leave to appeal was characterised as \u201cexceptional\u201d and would only be granted if \u201csubstantial injustice\u201d could be shown. Nonetheless, in the present case the Court of Appeal indicated that it would grant exceptional leave if the applicant could demonstrate an arguable case as to the unsafety of her conviction.","11. In assessing whether this test had been met, the Court of Appeal considered that the decisions of both the Tribunal and the Competent Authority (see paragraphs 5 and 6 above) should be admitted in evidence. The essence of this material was the recognition, \u201cessentially undisputed by the Crown\u201d, that the applicant had been a victim of trafficking and the court considered that it would not be in the interests of justice to proceed without it. However, it did not admit the medical evidence (see paragraph 7 above) as there was no good reason why evidence of this nature could not have been obtained for use at trial, where duress had been the central issue (see paragraph 3 above). Furthermore, it had been obtained some seven to ten years after the trial had taken place and it was difficult to apply a 2014-2017 assessment of the applicant to her condition in late 2007.","12. In considering the safety of the applicant\u2019s conviction, the Court of Appeal noted that neither the Anti-Trafficking Convention nor the Anti \u2011 Trafficking Directive conferred a blanket immunity from prosecution on victims of trafficking. Instead, the State\u2019s obligations required the careful and fact sensitive exercise by prosecutors of their discretion as to whether it was in the public interest to prosecute a victim of trafficking. In this regard, there was no closed list of factors bearing on the prosecutor\u2019s discretion to proceed against a victim of trafficking, although factors obviously impacting the decision to prosecute went to the nexus between the crime committed by the defendant and the trafficking.","13. Applying those principles to the case at hand, the court concluded that the applicant\u2019s conviction was not even arguably unsafe. It could not be said that she was under such a level of compulsion that her criminality or culpability was reduced to or below a point where it was not in the public interest for her to be prosecuted. Even on the law as it was in 2018, the court was unable to conclude that it would be an abuse for the applicant to be prosecuted. First of all, the gravity of the offence could not be minimised. Secondly, the applicant\u2019s essential factual account had been tested before the jury, by way of her defence of duress (see paragraph 3 above), and rejected. Thirdly, while the court accepted that the applicant had been a victim of trafficking, that itself did not render her conviction unsafe and was of limited assistance in assessing the true levels of compulsion affecting her. Fourthly, the applicant\u2019s account demonstrated that she had shown resilience in twice escaping from any compulsion. On a previous occasion, when she had been trafficked to the Bahamas, she had escaped to Miami but later returned to the United Kingdom for medical treatment and resumed contact with her traffickers. Furthermore, after her conviction she had assisted the authorities by giving evidence against gang members. It could not, therefore, be said that there were no reasonable alternatives available to her when she brought the drugs to the United Kingdom. In all of these circumstances, the court was unable to conclude, even arguably, that the applicants culpability was extinguished such that a prosecutor, properly applying the law as it was in 2018, would or might not have proceeded with a prosecution in the public interest.","Relevant law and practice","14. Both the relevant domestic law and practice and the relevant international law and practice are set out in full in V.C.L. and A.N. v. the United Kingdom (cited above, \u00a7\u00a7 66-107)."],"259":["2.The applicants were represented by Mr R.V. Kaloyev, a lawyer practising in Khumalag, North Ossetia.","3.The Government were represented initially by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, MrM.Vinogradov.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The facts of the present case are connected to the case of Tagayeva and Others v. Russia (nos. 26562\/07 and 6 others, 13April 2017). Both cases concern the terrorist attack at a school in Beslan, North Ossetia, from 1 to 3September 2004 and the authorities\u2019 response to it. The hostage-taking occurred at the opening ceremony of the academic year at a school in Beslan, a town bordering with the region of Ingushetia, where the terrorists had gathered and trained. For over fifty hours, more than thirty heavily armed terrorists associated with the Chechen separatist movement held over a thousand people captive, the majority of them children. A number of hostages were killed by the terrorists on 1-2 September 2004. Following explosions, fire and an armed intervention on 3 September 2004, over 330 people lost their lives (including over 180 children) and over 750 people were injured. All but one of the terrorists were killed; the surviving terrorist was tried and sentenced to life imprisonment. Two groups of policemen, from Ingushetia and North Ossetia, were charged with criminal negligence in relation to the failure to prevent the terrorist act. The government took measures to compensate the victims and to rehabilitate the community after the devastating attack.","6.The Tagayeva and Others judgment (cited above) was based on material submitted by the applicants and the Government. This included documents from four sets of criminal investigations, three criminal trials, two sets of civil proceedings for compensation, two reports by parliamentary groups (and one dissenting opinion thereon), books and articles written in the aftermath of the attack, copies of forensic and expert reports in respect of each applicant and\/or their relatives, the applicants\u2019 own statements to the Court and independent expert reports.","7.The judgment covered admissible complaints by 409 Russian nationals (grouped into seven applications) who had either been taken hostage and\/or injured in the incident, or are family members of those killed. In its judgment, the Court found that there had been a violation of several aspects of Article2 of the Convention: a failure to protect against a known and foreseeable threat to life from a terrorist act, a breach of the State\u2019s obligation to investigate, a failure to plan and control the use of lethal force so as to minimise the risk to life, and excessive use of lethal force. Under Article41 of the Convention, the Court individualised awards to each of the 409 applicants depending on the degree of injuries and the family ties with the deceased. Lastly, the Court made findings under Article 46 of the Convention. It indicated the need for a variety of measures aimed at drawing lessons from the past, raising awareness of applicable legal and operational standards, and deterring similar violations in the future. It also held that the future requirements of the pending investigation into the incident must be determined with regard to the Court\u2019s conclusions about the investigation\u2019s failures.","8.The applicants in the present case are thirty-nine individuals who had either been taken hostage and injured in the incident, or are family members of those killed. They participated in the various proceedings brought in relation to the incident, similarly to the applicants in Tagayeva and Others (cited above). In particular, they were granted victim status in criminal case no.20\/849. They submitted their application form to the Court on 14September 2012.","9.On 16 September 2010 several victims of the incident, including MsTauchelova, an applicant in the present case, lodged an application with an investigator in charge of criminal case no. 20\/849. They complained that despite the evidence that had emerged during the trial against the surviving terrorist \u2013 namely that the key person overseeing the use of heavy arms during the storming operation had been General Tikhonov \u2013 they had not been informed of the investigation into his criminal liability, years after that trial had been concluded in 2006. They complained that the official malfeasance committed by other State officials, namely General Andreyev, Mr Gaydenko, MrDzugayev and MrDzgoyev, had not been elucidated either. They demanded that an investigation into the criminal liability of all those officials be carried out or that they be informed of the results of any such investigation if one had already been conducted. They also expressed their discontent at not being kept informed about any progress in the investigation into the causes of their family members\u2019 deaths and injuries, and having no access to important documents concerning the functioning of the operative headquarters (\u201cOH\u201d) and the storming operation, or to the reasons for the official conclusion ruling out the use of indiscriminate weapons against the hostages.","10.On 5 October 2010 an investigator from the Main Investigative Department for the North Caucasus and Southern Federal Circuits of the Investigative Committee at the Prosecutor General\u2019s Office of the Russian Federation informed the victims that their application had been the same as an application lodged earlier by other victims of the terrorist act, which had been fully granted in respect of the demand to investigate the criminal liability of the State officials. He stated that no information about the current developments and results of the investigation could be provided while the investigation was still pending.","11.In December 2010 the victims enquired about investigative activities in respect of those responsible for the organisation of the terrorist act, and asked for access to documents relating to the investigative actions carried out on 2 and 3 September 2004. On 25 January 2011 the investigator replied that access to material from the criminal case would only be possible upon the completion of the investigation. He also issued a refusal to grant the request in respect of a certain individual who had been reported by the media to have organised the terrorist act, since the investigation had no information about his involvement in the terrorist act.","12.On 28 January 2011 the victims complained to the Leninskiy District Court of Vladikavkaz of the lack of a proper investigation and the lack of access to the investigation documents. There is no information about the examination of their complaint.","13.In 2012 the applicants made a number of unsuccessful requests to the investigating authority in criminal case no. 20\/849. In particular, they requested information about the investigation results in respect of those responsible for the use of heavy arms and indiscriminate weapons during the storming and rescue operation, and prosecution of the OH members who had authorised the use of such weapons.","14.On 30 March 2012 the applicants complained to the Leninskiy District Court of Vladikavkaz that the investigation had been protracted and lacked objectivity, that they had not had access to the case documents, that responsibility for the storming had not been properly investigated and no decision had been taken, that the OH full composition had remained unknown and its senior members had not been questioned, and that the exact causes of the injuries and deaths had not been determined.","15.On 18April 2012 the District Court dismissed their application, stating, in particular, that the applicants had no right to have access to records of the OH meetings and the questioning of the OH members \u2013 the assessment of evidence being beyond the court\u2019s scope of review \u2013 and that it had no power to order the investigating authority to take a procedural decision, all the more so during a pending investigation while certain investigative actions were being carried out. On 30 May 2012 the North Ossetia Supreme Court upheld the District Court\u2019s decision on an appeal by the applicants. Further appeals by the applicants were not examined as being substantially the same or lacking subject matter (the North Ossetia Supreme Court\u2019s final decisions of 30May and 4 July 2012).","16.The Government submitted the following information about the latest developments concerning the investigation.","17.On 1 December 2017 the victims, including some of the applicants in the present case, had lodged a request with the head of the Main Investigative Department for the North Caucasus Federal Circuit to carry out an investigation in order to elucidate the main circumstances surrounding the use of indiscriminate weapons by the State agents and evaluate their actions, in compliance with the Court\u2019s judgment in Tagayeva and Others.","18.On 22 December 2017 their request had been dismissed with reference to the decisions taken in 2004 and 2006 not to open a criminal investigation in respect of military servicemen and internal troops of the Ministry of the Interior, the head and members of the OH, the Deputy Minister of the North Ossetian Ministry of Emergency Situations (Emercom) and head of the fire service, and the head of the fire service of the Pravoberezhny District.","19.The applicants informed the Court that according to a letter from the Main Investigative Department for the North Caucasus Federal Circuit dated 30November 2018 and addressed to the victims in criminal case no. 20\/849, on 19 October 2018 a deputy head of the Investigative Committee of the Russian Federation had extended the term of the preliminary investigation in the case until 1 June 2019."],"260":["2.The applicant was born in 1970 and lives in Boto\u0219ani. He was represented by Mr A. \u0218imon, a lawyer practising in Bucharest.","3.The Government were represented by their Agent, Ms O. Ezer, of the Ministry of Foreign Affairs.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant had been an active officer withthe Romanian Intelligence Service (Serviciul rom\u00e2n de informa\u0163ii \u2013\u201cthe SRI\u201d) since 1994. On account ofthe nature of his duties, hehadheld security clearance permitting his access to classified information constituting State secrets; being in possession ofsuch security clearancehad beena prerequisite forhim holding hispost.","6.On 12 August 2011 a search had been conducted at the applicant\u2019s home; the report noted that no unlawful goods or highly taxable products had been found.","7.In a decision by the Suceava Court of Appeal of 9 September 2011, finding that the applicant\u2019s brother, C.C., had to be investigated while in custody, the court held, inter alia, that the evidence indicated that the applicant had ensured relevant training for his brother for his self-protection: the latter\u2019s vigilance and discretion in communication when committing criminal acts (smuggling), as well as his recourse to specialised gadgets to record conversations or to jam other communication devices were hard evidence thereto.","8.On 22 September 2011 the applicant was informed that criminal proceedings had been initiated against him on 12 August 2011, on account of charges of aiding and abetting an organised criminal group and of smuggling. In particular, he was accused of providing support since March 2011 to a group of several people, including his brother C.C. and his father R.C., who were smuggling cigarettes from across the border of the European Union; and also of storing highly taxable goods (tobacco, alcohol and fuel) since March2011 at the house he owned with his parents.","9.The applicant\u2019s case was heard by the investigative authorities. Audiovisual evidence, including the applicant\u2019s mobile telephone and computer data, was adduced in the file. Several witnesses were heard, including two witnesses with protected identities, one of whom gave information about \u201cother activities performed by the applicant, activities which could not be noted down in the record of the hearing for the protection of the witness\u201d.","10.The applicant denied any involvement in the acts he was charged with, and argued that there was no joint ownership with his parents of the house that he lived in, even if his parents lived at the same address; in fact, their houses and gardens were fully separated by a fence.","11.On 4 July 2014 the prosecutor decided to terminate the criminal proceedings against the applicant on the charges of aiding and abetting an organised criminal group. The evidence on file did not sufficiently indicate that the applicant had committed the acts that he had been charged with, although there was a reasonable suspicion that some individual smuggling activities had been committed. In that latter respect the investigative file was therefore sent for further investigation to the military prosecutor, in view of the applicant\u2019s former capacity as a military officer.","12.On 13 August 2014 the military prosecutor decided to send the case back to the civil prosecutor for further investigation. That decision has not been submitted to the Court by the parties.","13.In a report of 31 March 2013 by the relevant service for fraud investigation at the Boto\u0219ani Police Department, the police officer in charge of the investigation noted that the adduced evidence did not indicate that the applicant had been involved or had intended to be involved in the acts he had been charged with (smuggling). Even if there was an indication that third parties had transported and left some suspect parcels in the garden at the applicant\u2019s residence, there was no clear evidence whether those parcels had reached the applicant\u2019s own garden, or instead that of his father, to which the applicant\u2019s garden was joined but separated from by an interior fence (see paragraph10 above). Consequently, the police officer proposed the termination (clasare) of the criminal proceedings against the applicant.","14.On 7 April 2015 the prosecutor decided to terminate criminal proceedings against the applicant in respect of the charge of smuggling, on account of the lack of evidence against him. The prosecutor referred to the arguments set out in the above-mentioned report (see paragraph 13 above), which he considered to be entirely valid.","15.On 14 November 2011 the applicant was notified orally that his security clearance had been withdrawn (retragerea autoriza\u021biei de acces la informa\u021bii clasificate). He was not given any reasons or any other information; consequently, he filed a request with the Head of the SRI, asking to be informed of the underlying reasons for the withdrawal of the clearance, and to have that decision re-examined. He received no answer to his request.","16.On 15 December 2011 the applicant was notified orally that he had been discharged from office in accordance with the provisions of Article85\u00a7\u00a71(m) and 2 of Law no. 80\/1995 on the status of military personnel (hereinafter, \u201cLaw no. 80\/1995\u201d \u2013 see paragraph 61 below). No further explanation or indication as to the concrete facts against him was given at the time.","17.On 17 January 2012 the SRI answered two requests by the applicant (mentioned as having been registered on 21December 2011 and 11January 2012), and informed him that he had been discharged following the withdrawal of his security clearance; those measures were based on the provisions of Article 43 \u00a7 1 (b) and Article 85 \u00a7\u00a7 1 (m) and 2 of Law no.80\/1995 (see paragraph 61 below).","18.On 20 January 2012 the applicant challenged the decision to have his security clearance withdrawn and the discharge decision before the Head of the SRI.","19.On 16 February 2012 the SRI responded that, by signing, on 18February 2008, Annex no. 15 from the national standards for the protection of classified information, as approved by Government Order no.585\/2002 (hereinafter \u201cthe GO\u201d, see paragraph 57 below), the applicant had agreed to waive his right to obtain the reasons for the decision not to grant him security clearance (neacordarea avizului de securitate). However, it was decided that he should be informed that the impugned decision was well founded and was in accordance with Article 160 (a) and (f) of the GO (see paragraph56 below), while the discharge decision was based on Article85\u00a71(m) of Law no. 80\/1995 (see paragraph 61 below).","20.In reply to a further request from the applicant to have the decisions in question reassessed, on 15 March 2012 he was informed that the discharge decision had been taken in view of the fact that there were no positions available at the SRI for a person with the applicant\u2019s qualifications but who did not hold security clearance.","21.On 20 March 2012 the applicant brought administrative proceedings challenging the SRI\u2019s decisions to withdraw his security clearance and to discharge him from office; he also requested that he be rehired by the SRI and be awarded all salary that was due. Lastly, he asked that the challenged decisions be suspended pending the final outcome of the case.","22.He argued that his career had been evaluated as \u201cvery good\u201d and \u201cexceptional\u201d until the moment when, in very suspect circumstances, his security clearance was withdrawn, following which he was promptly discharged from office. In so far as he was not aware of the reasons underlying the challenged decisions, he was not capable of formulating any defence. However, he argued that if those decisions had a connection with the criminal proceedings which were pending against him, and in which his brother C.C. was incriminated (see paragraphs 7-8 above), those circumstances were not, according to the law, of a nature to justify the measures taken against him.","23.He asked that all the documents related to the challenged decisions be submitted to the file; and if those documents were classified, he asked for their declassification, so that the court could render justice in his case.","24.Upon a request from the court, on 22 May 2012 the SRI indicated that the documents referred to by the applicant were classified at the \u201csecret\u201d (strict secret) level, and that they could be submitted to the court provided it had the required clearance to access such information.","25.The SRI also contended that the withdrawal of the applicant\u2019s security clearance had had regard to certain situations of incompatibility, as prescribed by Article 157 (a) and (b), Article 158, and Article 160 (a), (f) and (g) of the GO (see paragraphs 55-56 below). They also indicated to the court that among the circumstances which had justified the measures against the applicant was the fact that on 12 August 2011 criminal investigations had been initiated against him (see paragraph 8 above).","26.On 22 June 2012 the Suceava Court of Appeal dismissed the applicant\u2019s claims. Although the SRI had not provided the court with the necessary secret documents, the court considered that the information in the file was sufficient to justify the decisions taken against the applicant.","27.In particular, the court considered that by signing Annex no. 15 to the GO (see paragraph 57 below), the applicant had waived his right to obtain any reasons for the decision not to grant him security clearance. Furthermore, the situations of incompatibility set out in Article 160 (a) and (f) (see paragraph56 below) were relevant to the applicant\u2019s case, in view of the fact that criminal investigations had been initiated against him on 12August 2011 (see paragraph 8 above). Indeed, the measures taken against the applicant were taken on the basis of those criminal proceedings. Moreover, the court considered that the applicant had been informed of the factual and legal grounds for the measures taken against him, which had allowed him to prepare an appropriate defence.","28.The applicant appealed against the decision of 22 June 2012, challenging mainly the fact that the classified information had not been accessible either to him, or at least to the court, who could have then referred to it when addressing the applicant in adversarial proceedings.","29.On 5 March 2014 the High Court of Cassation and Justice (hereinafter, \u201cthe High Court\u201d) allowed the applicant\u2019s appeal and remitted the case to the Suceava Court of Appeal for further examination. The High Court essentially held that in the absence of the classified documents, which had not been submitted to the file, there was no substantiation for the lower court\u2019s conclusions as to the existence of any factual or legal basis for the measures taken against the applicant. The SRI\u2019s failure to submit those documents to the file could be punished by a fine and in any event, rendered the proceedings unfair, in breach of Article 6 of the Convention, as it prevented the court from fully scrutinising the parties\u2019 arguments and evidence.","30.On 1 July 2014 the applicant lodged a request with the Suceava Court of Appeal for the declassification of the classified information relevant to his case. He argued that the decision to withdraw his security clearance and to subsequently discharge him from office were decisions concerning an individual, and thus not susceptible of producing severe damage to national security. Keeping all information classified without any disclosure breached his right to equality of arms.","31.The SRI reiterated their arguments and relied on the same legal grounds as those that they had relied on before the court in the first round of proceedings (see paragraph 25 above).","32.On 4 July 2014 the Suceava Court of Appeal dismissed as ill-founded the applicant\u2019s request to have the impugned decisions suspended. The court held that the withdrawal of the applicant\u2019s security clearance had been","\u201ca measure aiming to protect classified information in case there existed risks or security vulnerabilities, in the context of the provisions set out in Law no. 182\/2002 [on the protection of classified information \u2013 see paragraphs 52 et seq. below]\u201d.","33.The court also held that by signing Annex no. 15 to the GO (see paragraph 57 below), the applicant had agreed not to receive any reasons for the decision not to grant him security clearance, hence, the defendant had acted in accordance with the applicant\u2019s own agreement. Furthermore, the underlying reason for the measure had been the initiation in 2011 of criminal proceedings (see paragraph 8 above) \u201cin which the applicant had been involved\u201d, therefore the measure did not appear as untimely (intempestiv\u01ce), but as one which had been previously verified and assessed. The applicant\u2019s discharge from office was the direct consequence of the withdrawal of his security clearance, in accordance with Article 85 \u00a7 1 (m) of Law no.80\/1995 (see paragraph 61 below).","34.As the applicant had been a military officer, the notification of the measures could also be done on an oral basis, and not necessarily in writing, as provided for by the relevant military discipline rules; nevertheless, written notifications of the nature of the measures and their legal basis were given to the applicant on 17 January and 16 February 2012 (see paragraphs 17 and 19 above).","35.On 24 July 2014 a registrar from the Suceava Court of Appeal drew up a report in which it was stated that an envelope with documents containing classified information had arrived at the court; however, because none of the registry employees had had the necessary security clearance to handle and deliver such information, the envelope was sent back to the SRI.","36.At the hearings of 9 September and 7 October 2014 the court noted that security clearance had not yet been obtained for a registry employee; hence, it held that the case would be adjourned until that clearance had been granted.","37.On 7 November 2014 the court acknowledged receipt from the SRI of \u201ca document\u201d containing the requested information classified as secret, which was to be \u201chandled by the court within the relevant legal framework regulating the access to such information\u201d.","38.On 25 November 2014 the Suceava Court of Appeal, after consulting the classified information submitted to the file by the SRI, dismissed all the applicant\u2019s requests.","39.Concerning the declassification issue, the court held that the request was ill-founded:","\u201cthe classified information (documenta\u0163ia) disclosed the gravity of the acts committed by the applicant; to make such information available would have as a consequence its dissemination, with a direct impact on the lawful actions of certain state institutions which aim to ensure a climate of safety and order for an entire community\u201d.","40.On the merits of the case, the court reiterated its previous considerations already mentioned in the reasoning for the dismissal of the suspension request (see paragraphs 32-34 above).","41.Lastly, the court held that in view of the gravity of the acts committed by the applicant (acts not referred to in the judgment), the severe measures taken against him were lawful and proportionate to the degree of social danger of his acts.","42.The applicant appealed against the two decisions given by the Suceava Court of Appeal (see paragraphs 32-34 and 38-40 above). He reiterated all his previous arguments, also emphasising that the procedure for not being granted security clearance was different from the one in which security clearance had already been granted and subsequently withdrawn. Consequently, by signing Annex no. 15 to the GO (see paragraph 57 below), he had not agreed to not being provided with reasons for the withdrawal of his security clearance.","43.He also argued that, contrary to the instructions of the High Court in its judgment of 5 March 2014 (see paragraph 29 above), there was no clear indication in the file as to what documents the SRI had submitted and consequently as to what information the court had had at its disposal so as to scrutinise the reasons which had constituted the basis for the measures taken (see also paragraphs 35, 37 and 39 above). This lack of clarity had rendered the court\u2019s examination of the case illusory, as reflected by the fact that the decision was not reasoned and only referred to general aspects, without responding in concreto to the applicant\u2019s essential arguments.","44.On 29 July 2015 the Suceava Court of Appeal transmitted to the High Court \u201cdocuments classified as secret and which were available for consultation by the court, under the conditions provided for by the relevant law\u201d.","45.On 12 October 2015 the applicant filed written submissions in which he reiterated his concern that the classified documents which had been adduced in the file were in fact only the two decisions which he had challenged, without any additional document setting out the underlying reasons thereto (see paragraph 43 above). He therefore asked that the SRI be requested to submit all documents pertaining to the challenged decisions.","46.On 14 October 2015 the High Court dismissed the applicant\u2019s appeal.","47.In connection with the applicant\u2019s request concerning the classified information that had been adduced in the file (see paragraphs 43 and 45 above), the court considered that what was already in the file was sufficient for the purposes of examining the case.","48.The court further held that even though the lower court\u2019s reasoning was very brief, it still answered the main issues raised by the applicant, proving that it had properly scrutinised the case. In addition, the declassification request had been correctly dismissed, because the conditions provided for by the law for such a request had not been fulfilled, having regard to the acts held against the applicant and to the consequences to public order or to the private or public interests involved which such declassification entailed.","49.The applicant\u2019s incompatibility with his office had been correctly established, which resulted from the fact that he had committed acts which were incompatible with the position he had held and which determined the withdrawal of his security clearance. No further information could be provided thereto, in view of the fact that the relevant information had been classified as secret, and that the applicant had waived his right to be informed of the reasons justifying the refusal of security clearance. Nevertheless, the decisions to withdraw the clearance and to discharge the applicant had been notified to him on an oral basis (see paragraph 16 above), as provided for by the military discipline rules, and the legal basis for the decisions had been notified in writing to the applicant on 17 January and 16 February 2012 (see paragraphs17 and 19 above).","50.While noting the prosecutors\u2019 decisions to terminate criminal proceedings against the applicant on all charges (see paragraphs 11 and 14 above), the High Court pointed out that the withdrawal of the applicant\u2019s security clearance had not been determined by the criminal acts he had been suspected of having committed; and that the withdrawal had been determined by the situations of incompatibility set out in Article 160 (a) and (f) of the GO (see paragraph 56 below), found to be relevant to the applicant\u2019s situation.","51.Concerning the right of access to a court, the High Court concluded that the applicant had been made aware of the legal grounds for the decisions taken against him; furthermore, he had had the opportunity to challenge those decisions, and the court had had the opportunity to assess itself the classified information which had been made available by the SRI."],"261":["2.The applicant was born in 1960 and lives in Tyrgetuy, Chita Region. The applicant was represented by Mr R.K. Akhmetgaliyev, a lawyer practising in Kazan.","3.The Government were initially represented by Mr G. Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in that office, Mr M. Vinogradov.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.On 28June 2005 the applicant\u2019s son, Pte S.V., was conscripted into compulsory military service. On 7 November 2005 he was transferred to military unit no.05651, which was based in Sherlovaya Gora, Borzinskiy District, Chita Region. Senior conscripts of that unit, including Pte B. and PteKh., began bullying the applicant\u2019s son and other younger conscripts in order to extort money from them. On 13November 2005 PteS.V. and two other conscripts, Pte I. (a childhood friend of PteS.V.) and Pte M., left their unit without authorisation. On 15November 2005 they and their parents asked the military command for protection from hazing. On 19November 2005 the three soldiers were placed in transit military unit no.26001 (a unit in which conscripts serve temporarily while awaiting transfer to another unit) in Ulan\u2011Ude, Republic of Buryatia. The three conscripts saw a psychologist on at least two occasions \u2013 on 19 and 20November 2005 \u2013 but did not undergo any psychological tests.","6.It was decided to transfer the applicant\u2019s son and two of the above\u2011mentioned three conscripts to separate military units. Also, the three soldiers\u2019 former military unit was disbanded, with all its personnel to be transferred to other military units. Some of those servicemen were also transferred to transit military unit no.26001; on 28 November 2005 several of them saw the applicant\u2019s son and PteI. in the transit unit canteen.","7.On 30November 2005 Pte S.V. boarded a train bound for Bratsk, Irkutsk Region, where his new military unit was stationed. On 2December2005, at about 1.30p.m., the officer escorting him, Major I., found PteS.V. in one of the train\u2019s toilets hanging from a noose made from PteS.V.\u2019s own belt. Pte S.V. had a letter to his family on his person. In it he explained that he knew what senior conscripts in Bratsk would do to him for having deserted his military unit and \u201cratted out\u201d PteKh. and others. So the applicant\u2019s son had decided to kill himself before his name and honour were sullied.","8.At 4 p.m. on 2December 2005 a criminal investigation was opened into the suspected incitement of Pte S.V. to commit suicide.","9.On 6December 2005 Pte I. stated as follows:","\u201cOn 7 November 2005 our group of twenty-five people was transferred to serve in the village of Sherlovaya Gora in the Chita Region. Captain G., who accompanied us there, was drunk and told us that he was taking us to a military unit that was ruled by \u2018the law of the jungle\u2019.\u201d","10.Pte I. furthermore testified that upon arrival at military unit no.05651 senior conscripts had begun bullying them \u2013 they had not let them sleep and had demanded money from them. He, the applicant\u2019s son and another conscript had deserted the military unit and had called their parents. Their parents had taken them to the Commander-in-Chief of the Siberian Military Circuit, Major-GeneralKh. The latter had persuaded them not to complain to the military prosecutor\u2019s office and had promised to transfer them to one of the country\u2019s best military units. While awaiting the transfer, two soldiers from their former military unit had threatened PteS.V., PteI. and Pte M. that if they ended up in the same unit again, it would turn out badly for them. As their sleeping quarters had been separate from those of the other conscripts, they had not been ill-treated. The investigator also added to the case file a letter from Pte S.V. to PteI. with the following text: \u201c...Hold on, [I.] \u2013 I\u2019m sorry I could not see you before leaving. Don\u2019t do anything stupid, we will make it through and meet up! ...\u201d.","11.MajorB., a psychologist with the transit unit, submitted that on 20November 2005 he had met with Pte S.V. and Pte I. They had told him that they had deserted from military unit no. 05651 because senior conscripts had for four days not allowed them to sleep and had extorted money from them. According to MajorB., after that first meeting, he had talked to PteS.V. and Pte I. on several occasions. He speculated that soldiers from their former military unit could have met Pte S.V. and his friends in the canteen of transit military unit no.26001. Major B. stated that he had not subjected the three conscripts to any psychological tests.","12.On 11January 2006 forensic experts concluded that Pte S.V. had died from mechanical asphyxia caused by hanging. The experts also noted the presence of a number of abrasion marks on the soldier\u2019s nose, cheek, chest, shoulder, shin, heel and the sole of his foot, which had been inflicted by a hard and blunt object of a limited traumatic surface (\u0441 \u043e\u0433\u0440\u0430\u043d\u0438\u0447\u0435\u043d\u043d\u043e\u0439 \u0442\u0440\u0430\u0432\u043c\u0438\u0440\u0443\u044e\u0449\u0435\u0439 \u043f\u043e\u0432\u0435\u0440\u0445\u043d\u043e\u0441\u0442\u044c\u044e). Some of those abrasions could have been caused up to twelve hours before the death of the applicant\u2019s son; others could have been caused up to five days before it. The rest of the abrasions were held to have appeared only after Pte S.V.\u2019s death.","13.On 2 March 2006 another psychologist, Lt Colonel G., recounted that on 19November 2005 he had met with Pte S.V., Pte I. and Pte M. to assess their moral and psychological qualities in order to determine where to send them for the continuation of their military service. Lt Colonel G. had enquired about the reasons for their upcoming transfer and whether it was connected with hazing. According to him, the soldiers had not given him a clear answer. LtColonelG. had tried to explain to them that those reasons were important for the choice of a new place for their continued service, because they could get to a unit with good discipline or to a unit where they could find themselves \u201cin shit up to [their] ears\u201d. Lt Colonel G. later clarified that he had not meant to humiliate the soldiers\u2019 dignity, but had been trying to explain the situation to them in plain language. After the meeting of 19November 2005 he had suggested that the soldiers be transferred to three separate military units on the basis of staff vacancies. LtColonel G. had not seen the three conscripts again.","14.On 17March 2006 four servicemen (Pte Ye., Pte V., Pte K. and PteB.), who had had to be transferred to Bratsk together with Pte S.V., had stated that before their departure one soldier had told them to inform everyone in Bratsk that Pte S.V. had been a deserter. On 2December2005 they had asked Pte S.V. over breakfast whether the rumour about him was true. The applicant\u2019s son had looked surprised and had stopped talking to them.","15.On 29March 2006 Pte Ka. stated that he had told four conscripts being transferred to Bratsk together with Pte S.V. that the latter had been a deserter:","\u201cDuring a roll call the head of the transit point announced that four servicemen would go to a military unit in Bratsk and that Pte S.V. would also go with them. We, the group from Sherlovaya Gora, realised that they meant Pte S.V., who had earlier deserted with I. and M. from military unit no. 05651. I told the soldiers going to Bratsk with Pte S.V. that he had left our unit in Sherlovaya Gora without authorisation, so he was a \u201csochnik\u201d [see paragraph 34 below], and that he had then complained to the ... leadership, and that because of that their military unit in Sherlovaya Gora had been disbanded. I told this to those soldiers so that they knew who they were dealing with.\u201d","16.On 25April 2006 experts issued a report on Pte S.V.\u2019s psychological state before his death. They considered that, generally speaking, the conscript had not had suicidal tendencies and had even disapproved of suicide, including that of his own father in 2000. He had had an acute feeling of justice and sense of responsibility; and had tended to be idealistic and uncompromising in his opinions. The conflict between him and senior conscripts, as well as the subsequent involvement of other people in that conflict, had worsened his psychological state. As he had been upset and unable to find a solution, the applicant\u2019s son had become depressed and overly sensitive and had begun avoiding contact with other conscripts. The experts believed that the conduct of Pte. B., Pte Kh. and Pte Ka. had caused Pte S.V.\u2019s depression, but had not put his life in danger. At the material time Pte S.V. had not shown signs of harbouring suicidal thoughts. His psychological detachment had increased with physical exertion, social isolation and pressure. It had been further worsened by separation from his friend, Pte I. The experts considered that Pte S.V. had developed a temporary depressive-neurotic disorder of moderate severity which had predisposed him to committing suicide. The experts found no direct link between the hazing and Pte S.V.\u2019s suicide.","17.On 28April 2006 the Chita Garrison Military Court sentenced PteB. to two years\u2019 suspended imprisonment for extorting money from the applicant\u2019s son and other conscripts.","18.On 5May 2006 the Chita Garrison Military Court sentenced Pte Kh. to one year\u2019s imprisonment for breaching the rules governing relations between military personnel by committing acts of violence towards and humiliating Pte S.V. and other conscripts. The applicant was awarded 2,000Russian roubles (RUB) in respect of the non-pecuniary damage.","19.On 21June 2006 the criminal investigation into the possibility that PteS.V. had been incited to commit suicide was closed for lack of corpus delicti. The decision was based on: the records of the onsite examination of Pte S.V.\u2019s body; a forensic medical examination report; a psychological report; certain physical evidence, such as Pte S.V.\u2019s suicide note and his letter to I.; a graphological examination report. The decision was also based on the statements of: Pte I. and Pte M.; Privates Shch., B., L., Br., K., Ye., P., Kru., Pa., G., Ka.; Mrs. O, P., L., Z. and S. (fellow train passengers of Pte S.V. on his journey to Bratsk); Major\u2011General Kh., the Commander-in-Chief of the Siberian Military Circuit (\u043a\u043e\u043c\u0430\u043d\u0434\u0443\u044e\u0449\u0438\u0439 \u0421\u0438\u0431\u0438\u0440\u0441\u043a\u0438\u043c \u0432\u043e\u0435\u043d\u043d\u044b\u043c \u043e\u043a\u0440\u0443\u0433\u043e\u043c)); two psychologists, Lieutenant Colonel G. and MajorB.; Lieutenant Colonel Sh. (the commanding officer of military unit no. 26001); MajorI. (the officer who had accompanied PteS.V. and the above-mentioned four other soldiers to Bratsk); and Pte S.V.\u2019s mother and brother. The investigator concluded that the applicant\u2019s son had killed himself because of his fear of being bullied by members of the military unit stationed in Bratsk. The next day the investigator sent a copy of his decision to the applicant.","20.It appears that on 24 April 2009 the applicant lodged a request for the decision of 21June 2006 to be set aside. On 29 April 2009 her request was dismissed. The applicant then lodged a complaint with a first instance court, seeking the quashing of the decisions of 21 June 2006 and 29April2009. However, by the date of the scheduled court hearing the above decisions had already been quashed and the investigation had been resumed. On 12 August 2009 the first-instance court terminated the examination of the applicant\u2019s complaint in view of the fact that the contested decisions had been set aside.","21.On 13November 2009 the investigator again decided to close the criminal investigation on the same grounds. The applicant was informed of that decision, but she did not challenge it before the courts.","22.On 4June 2008 the applicant requested that a criminal investigation be opened against Major B., Lieutenant Colonel G. and other unknown persons for the failure to provide proper psychological assistance to her son. She asserted that the failure of the authorities to recognise the psychological state of her son and to provide him with proper assistance had resulted in his suicide. The applicant also blamed the authorities for having allowed servicemen from Pte S.V.\u2019s former unit to meet him again at the transit military unit and to disclose information about his desertion to other military personnel.","23.On 1July 2008 the investigator refused the applicant\u2019s request for a criminal investigation to be opened. He referred to (i) the decision of 21June 2006 to close the criminal investigation into the possibility that there had been incitement to suicide and (ii) the psychological report of 25April 2006. The investigator repeated that Pte S.V. had committed suicide while being in a temporary state of depression. He found no evidence that the persons concerned had failed to fulfil their duties or had otherwise caused Pte S.V.\u2019s suicide.","24.The applicant lodged a complaint regarding the investigator\u2019s refusal of 1July 2008. On 12March 2009 the Chita Garrison Military Court dismissed her complaint. In concluding that Pte S.V.\u2019s suicide had not been directly caused by the actions of third persons, the Garrison Court referred to the witness statements of Major B. and Lt. Colonel G., the psychological report of 25April 2006 and the decision of 21June 2006 to close the criminal investigation. The Garrison Court concluded that the persons concerned had complied with their obligations in respect of the applicant\u2019s son. On 12May 2009 the Eastern-Siberian Circuit Military Court upheld the judgment on appeal, endorsing the reasoning of the Garrison Court."],"262":["2.The applicant was born in 1970. He is currently serving a seventeen-year sentence of imprisonment for membership of a terrorist group and possession of explosives. The applicant was represented by Mr Z. Reizabal Larra\u00f1aga, a lawyer practising in San Sebastian and by Mr O. Peter, a lawyer practising in Switzerland.","3.The Government were represented by their Agent, Mr R.A. Le\u00f3n Cavero, State Attorney.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.Within the context of an initial anti-terrorist investigation carried out by investigating judge no.2 of the Audiencia Nacional, the applicant was arrested in France under a European arrest warrant and handed over to Spain, where he was remanded in custody for allegedly, along with other individuals, belonging to the terrorist group ETA. On 8 April 2010, the applicant, assisted by a lawyer chosen by him, after denying his alleged membership of ETA, waived his right not to testify before the investigating judge.","6.On 20 April 2010 the applicant was released on condition that he appear before the judge dealing with the case once a week.","7.On 20 June 2010, at the Public Prosecutor\u2019s Office\u2019s request, the pre-trial phase was discontinued for lack of evidence against the applicant. Other investigations against ETA continued. Within the framework of new inquiries, further evidence against the applicant was found, which led to a second set of proceedings.","8.On 28 September 2010, within the framework of the second set of proceedings, the Guardia Civil requested that investigating judge no.2 of the Audiencia Nacional authorise eight entries to and searches of properties used by the cell of ETA to which the applicant allegedly belonged. The requested entries and searches were mainly aimed at locating two explosives depots, which investigations had revealed to have been organised and used by the applicant. Various sources of information had indicated that the applicant was a member of ETA and that he was storing a large number of explosives and firearms that were in a fit condition to be used.","9.On 29 September 2010, at 9:45 a.m., the Guardia Civil arrested the applicant. On 30 September 2010, investigating judge no.2 of the Audiencia Nacional authorised his detention incommunicado in order to pre-empt the potential frustration of the ongoing investigation, which was primarily aimed at the location of explosives. Simultaneously, a search was carried out at his home, where computer equipment was seized. The detention incommunicado was ordered and supervised by a judge within the framework of a judicial procedure.","10.Once the detention incommunicado had been authorised by the investigating judge, the applicant was assigned legal aid. He was informed of his rights as a detainee \u2013 including his right not to testify against himself and his right to remain silent; however because his detention was incommunicado in nature, he was neither authorised to choose a lawyer nor to meet in private with the lawyer that had been assigned to him by way of State-funded legal aid (\u201clegal-aid representative\u201d) prior to his being interviewed by the police. During his detention incommunicado, the applicant gave two statements to the police, both in the presence of that legal-aid representative.","11.On 30 September 2010, the investigating judge ordered the extension of the applicant\u2019s detention for a period of forty-eight hours in view of the nature of the offences under investigation and the large amount of computer material found during the search of the applicant\u2019s home.","12.On 1 October 2010, at 7:23 a.m., in his first statement to the Guardia Civil, the applicant stated that he had \u201ccooperated\u201d with ETA and that his activities during his participation in that group\u2019s terrorist activities had included acts such as attempted kidnapping, verifying details regarding a certain businessman in order that he could be assassinated, and providing information regarding certain police officers serving in the Basque Autonomous Community so that an attack could be planned against them; he also indicated a storage room where he kept explosives. The applicant\u2019s legal-aid representative was present during the interview, and both the legal-aid representative and the applicant signed the applicant\u2019s statement to the Guardia Civil and a document attesting to the fact that the applicant had been informed of his rights as a detainee. Later, the applicant\u2019s legal-aid representative repeatedly tried to make contact with his client. The Guardia Civil informed the legal-aid representative that contact with his client was legally restricted because the applicant was being detained incommunicado. After the applicant had given his statement, a search was carried out of a storage space (indicated by the applicant) in the applicant\u2019s home used to hide explosives, and a large amount of explosive material and computer equipment relating to the activities of ETA was found.","13.On 3 October 2010, at 3.13 a.m., the Guardia Civil took a new statement from the applicant, as there were strong suspicions that he knew of other sites at which was stored explosive material that was in a state to be used. Again, after the agents of the Guardia Civil had read out his rights \u2013 including his right to remain silent \u2013 the applicant made a statement informing them of a hidden place at his home where he still kept a firearm, bullets, various USB keys containing several training handbooks on terrorism, and some false licence plates. He made that statement despite the opposition of his legal-aid representative, who was present and indicated his opposition to the new interview taking place. Subsequently, at the applicant\u2019s residence, the Guardia Civil found all the equipment that had been listed by the applicant in his latter statement.","14.During his detention incommunicado, the applicant was examined daily by a forensic doctor, to whom he reported that he had not suffered mistreatment by the Guardia Civil at any time, although he did claim that the Guardia Civil had threatened to arrest his girlfriend if he did not cooperate with them. The doctor submitted a medical report each day to the investigating judge in charge of the case.","15.On 4 October 2010 the applicant was brought before the investigating judge, to whom he indicated that his statements to the Guardia Civil had been obtained when being held incommunicado for five days and that for this reason he had made self-incriminatory statements. On the same day, the applicant\u2019s detention incommunicado was lifted, and he was able to appoint a lawyer of his own choosing.","16.On 16 April 2013 the Audiencia Nacional convicted the applicant of being a member of a terrorist group and of possession of explosives. He was sentenced to seventeen years\u2019 imprisonment. The conviction was based essentially on: material found on the seized computer material linking him to the terrorist group; the explosive material found in both his home and other places that had been indicated by him; incriminating statements given by the applicant\u2019s co-defendants; statements given by witnesses; and the fact that the applicant had remained silent in response to questions from the prosecution. With reference to reports by the forensic doctor, the Audiencia Nacional ruled out the possibility that the applicant had been mistreated. Itdeemed that he had given his statements freely and voluntarily (see paragraphs 12 and 13 above), without coercion or pressure of any kind.","17.According to the judgment, it had been proved that the applicant had concealed the following effects, tools and instruments:","\u201cThe following material was found in the search carried out on 1 October 2010 in a storage room used by the defendant:","Six USB keys, detonators and three flap-type devices intended to activate explosive devices \u2013 [all] in perfect working order;","a device intended to activate car bombs;","fifty-six kilograms of potassium chlorate and 7 kg of sulphur; ammunition and pistol holsters, forty-six pistol cartridges, twenty detonator fuses;","a CD, with a handbook [produced by] the terrorist group;","five spent cartridges from the gun that had killed two police officers;","seven spent cartridges from a gun that had killed two people;","a reddish plastic with wrapping tape and rubber gloves, containing traces of the following explosive substances: ammonium nitrate, nitroglycerine and dinitrotoluene.","...","During the search carried out on 3 October 2010 at the applicant\u2019s home, the following effects, tools and instrument were found:","a gun;","fifty cartridges;","twenty car registration plates;","two detonators intended to activate [explosive] devices;","a [detonator] timer;","...","Among the seized computer files were found: several [copies of] handbooks [containing] instructions [on how to behave] in the event of arrest; training videos on the use of weapons, explosives and security measures; information regarding police officers and politicians; and [plans for] placing a \u2018van bomb\u2019 by a hotel.\u201d","Regarding the fact that the applicant\u2019s legal-aid representative was not allowed, despite repeated attempts on his part, to communicate with his client, the first-instance court heard the legal-aid representative as a witness at the trial.","18.Following an appeal by the applicant, on 18 March 2014 the judgment of the Audiencia Nacional was upheld by the Supreme Court. Itconcluded that despite the applicant\u2019s assertion that the Guardia Civil had threatened him with the arrest of his girlfriend, there was no evidence of any torture \u2013 either physical or psychological. With regard to the evidence that had been found in the applicant\u2019s possession, the Supreme Court concluded that the large amount of material found in his possession, as well as the spent gun cartridges, revealed that not only had he stored explosives, but he had also been part of ETA.","19.On 7 May 2014 the applicant lodged an amparo appeal with the Constitutional Court. He argued that his right to be assisted by a lawyer of his own choosing had been violated (Article 24 \u00a7 2 of the Constitution). The amparo appeal was declared inadmissible on 7 November 2014 because the applicant had failed to \u201cspecifically and sufficiently justify its constitutional relevance\u201d."],"263":["2.The first and second applicants reside in Norway. The first applicant was born in 1987 and the second applicant in 1994. The third applicant is their child, X, born in mid-January 2015, and the fourth applicant is the first applicant\u2019s mother, who resides in Slovakia and who was born in 1961. They were represented before the Court by Ms D. Bokov\u00e1, a lawyer practising in Prague.","3.The Norwegian Government (\u201cthe Government\u201d) were represented by Mr M. Emberland of the Attorney General\u2019s Office (Civil Matters) as their Agent, assisted by Ms T. Oulie-Hauge, attorney at the same office.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.On 26 March 2015 the third applicant was taken into emergency foster care. It appears from the decision that the hospital had contacted the child welfare services after the first and second applicants had left the hospital with the child even though the hospital had explained that there were indications that the child needed treatment and was not ready to leave. The child welfare services had since offered a close follow-up to the family, who had needed a lot of practical guidance with regard to the child\u2019s needs concerning food, nursing, sleep and routines. It had been challenging to offer sufficiently concrete guidance and even though the first and second applicants felt more secure in respect of practical matters, they still did not ensure the child\u2019s safety. The first and second applicant still left the child alone at the nursing table or in a sofa and it occurred that the first applicant switched off an alarm which (by vibrating) informed the second applicant that the child was crying. The first applicant had shooed the child when she cried. In addition to the assistance measures attempted, the family had been offered a stay at a family centre, but had refused. The decision also contained a description of how the child had started to develop irregularly because of a lack of interaction with and social stimuli from her caregivers. It was decided not to disclose the foster home\u2019s address to the child\u2019s family, and the first and second applicants were granted rights to contact with the child for one hour every fourteen days, under supervision (see, for further details, paragraph 16 below).","6.On 31 March 2015 the emergency placement decision was confirmed by the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker). It appears from the Board\u2019s decision that the child welfare services had argued that there were conflicting interests to be balanced concerning the level of contact that should be set, and that they had proposed that the first and second applicants should be given contact rights of one hour every fourteen days.","7.The emergency placement decision was upheld on review by the District Court (tingrett) on 25 June 2015. From the District Court\u2019s judgment it appears that the municipal child welfare services had argued before the court that the second applicant\u2019s contact rights should be reduced to once a month, and that the first applicant should be refused all contact with the child.","8.The emergency placement decision became final with a decision from the High Court (lagmannsrett) of 30 October 2015, in which the first and second applicants were not granted leave to appeal against the District Court\u2019s judgment.","9.The emergency placement was followed by an application to the Board for a care order on 7 May 2015.","10.On 26 November 2015 the child welfare services decided to reduce the first and second applicants\u2019 right to contact with the child to one hour every sixth week. That decision was upheld by the Board on 3 February 2016.","11.The Board rejected the application for a care order on 7 March 2016. It appears from the Board\u2019s decision that the child welfare services had argued that it would be a long-term placement and that special reasons existed for limiting the first and second applicants\u2019 contact with the child to twice a year or less. Following the Board\u2019s decision, the child welfare services increased the level of contact between the first and second applicants and the third applicant to one hour every third week.","12.On 27 June 2016 the District Court decided that implementation of the Board\u2019s decision should be suspended, before it subsequently, on 26September 2016, upheld the decision. It appears from the District Court\u2019s judgment that the child welfare services had again argued that it would be a long-term placement and that that consideration had to have consequences for the contact rights. They had maintained that when compelling reasons so required, contact rights could be set at one to two times yearly, and argued that the extent of contact that had been practised until then had to be reduced.","13.On 4November 2016 the High Court quashed the District Court\u2019s judgment on procedural grounds, as it considered that one of the judges had been biased. A further appeal to the Supreme Court (H\u00f8yesterett) was dismissed by the Supreme Court\u2019s Appeals Committee (H\u00f8yesteretts ankeutvalg) on 13 January 2017.","14.The case was accordingly to be retried before a first-instance court. It was sent to a different District Court, which held a hearing from 9 to 13October 2017. The first and second applicants were present, each with legal aid counsel, and gave evidence. Twenty witnesses were heard and an expert psychologist appointed by the District Court attended the hearing and gave a statement. The first and second applicants also called an expert witness. The court-appointed and the privately-appointed experts each provided a written report, which had been submitted to the Commission of Child Welfare Experts (Barnesakkyndig kommisjon) for quality checks. The Commission made no significant remarks in respect of the report from the court-appointed expert, whereas it stated that the report from the privately-appointed expert displayed major and serious shortcomings, to the extent that it could only contribute to elucidating the case to a limited degree.","15.In a judgment of 16 November 2017 the District Court took note of the fact that the third applicant had been in emergency foster care since March 2015 until the time of the court\u2019s judgment. While the case formally concerned placement in public care, regard should therefore also be had to the rules governing the discontinuation of care orders.","16.The District Court went on to examine and assess the situation of the third applicant, the child; it considered her personality, history, development and possible physical, mental, social and emotional challenges. It observed that there had been no concerns at birth. Two weeks after the birth a midwife had made a note of concerns and, from approximately the same time, a health visitor who had had weekly contact with the family expressed concern as the child did not develop and progress. The health visitor had shown the third applicant to a doctor, who had observed that she made little eye contact and assessed that this did not have physiological causes. The child welfare services had visited the family around late January-early February 2015, and considered that the care situation was adequate. They were concerned, however, about the lack of interaction between the parents and the child.","17.The District Court and the court-appointed expert agreed with the child welfare services that there were problems in respect of interaction between the parents and the child. Among other evidence, a video recording of interaction between the parents and the child was played before the court, and the court stated in that context that it was aware that it could be challenging to interact with a child when under supervision by strangers. The second applicant also had a hearing disability and used sign language when communicating with the child welfare service staff. The District Court did not consider, however, that the second applicant dealt with X particularly differently when observed and when not. Nor did it consider that her hearing disability had any particular impact on her interaction with the child.","18.In addition, the District Court took note of the development of the child\u2019s motor skills, which had been delayed at the time when she had been placed in care, a delay that had not yet been fully compensated for. For that reason, referring to the assessments of the court-appointed expert, it considered that the third applicant had elevated care needs. The delay in the development of her motor skills was also a matter which required particular follow-up by her caregivers. The District Court went on to examine the first and second applicants\u2019 caring skills and noted that, while the second applicant had expressed sound opinions on how to care for children in general, she had, according to the court-appointed experts, certain difficulties in understanding X\u2019s needs.","19.The court-appointed expert had stated that the second applicant had a reduced level of caring skills and she assumed that that was related to the second applicant\u2019s own psychological functioning, possibly due to difficult and traumatic experiences in her own upbringing. She did not find that the second applicant\u2019s hearing difficulties had any impact. The District Court agreed with the expert on those points. As for the first applicant, the expert had assessed him as also having reduced caring skills, which were insufficient to meet X\u2019s needs. The expert had been particularly concerned with the first applicant\u2019s understanding of X\u2019s situation and needs, and his capacity to reflect and cooperate. The District Court stated that both the expert and the child welfare services had found it particularly challenging that the first applicant was intense and invasive towards X.","20.The District Court further found that circumstances had improved with the contact sessions that had been carried out. X nonetheless still suffered adverse reactions after the contact sessions, a considerable part of which had to be attributed to the first and second applicants\u2019 conduct during the sessions. The court also took into account that the first and second applicants had received extensive assistance and guidance, in particular with respect to how to act sensitively towards X. They had not been capable of benefiting from these measures.","21.Overall, the District Court found that there would be serious deficiencies in X\u2019s care if she were returned to the first and second applicants.","With regard to the question of contact rights, the District Court stated the following:","\u201cContact","The first paragraph of section 4-19 of the Child Welfare Act states that parents and children are generally entitled to have contact with each other. In our case, there is also no disagreement that the child should have contact with her biological parents if the court decides to take the child into care, but the disagreement concerns the extent of the contact. The municipality has entered a statement of claim that the contact be set at three times a year for one hour at a time, while the parents have requested that the contact be as extensive as possible.","When it comes to the further determination of the contact, it must be based on section 4-1 of the Child Welfare Act, which states that decisive importance shall be attached to the child\u2019s best interests. A key factor in this assessment is the purpose of the care decision and its estimated duration. The Supreme Court\u2019s judgment in Rt. 1998 page 787, states the following about the importance of the expected duration of the care order:","\u2018In cases where the care order is assumed to be temporary and return is expected to take place within a reasonable time, care should be taken to maintain the best possible contact between the biological parents and the child, see the statements in the Official Norwegian Report (NOU) 1985: 18, page 162. This indicates gradually more frequent contact of a somewhat longer duration. If return cannot be expected or a return lies far ahead in time, contact is to be aimed at making the child aware of his or her biological origin with a view to a possible later attachment as the child grows up. The main objective over time must be that also more limited contact works in the best interests of the child based on the child\u2019s feelings, interests and needs.\u2019","The court finds that for [X] it is a matter of permanent placement, for growing up. Almost three years have elapsed since the emergency decision, and as mentioned before, the parents have not come in a position in which they can exercise caring responsibilities for [X] despite long-standing and comprehensive guidance.","The purpose of contact in our case will then be to maintain a relationship between [X] and the parents, taking into account [X]\u2019s need to further develop a good attachment to the foster home, and to ensure her stability and security. The evidence presented at the main hearing has shown that the contact sessions have been of varying quality, and [X] has, as mentioned, shown reactions after contact. The court agrees with the expert that contact every three weeks, as it has been taking place so far, is too frequent. [X] needs calm and stability to continue to form an attachment to her caregivers. It is of the utmost importance that [X] develop as much as possible undisturbed by the stresses caused by contact. Her development since the foster home placement has been positive, and the court considers it of fundamental importance that [X] be spared frequent stress factors that will have a negative impact on her development. [X] is a vulnerable child in need of calm and predictability, and the court refers to the descriptions of her above. In addition, the parents\u2019 skills relating to contact are limited. The court has previously described contact sessions that have been very stressful for [X], because they become intense and the parents show little sensitivity to [X]\u2019s needs.","The court has therefore concluded that the number of annual contact sessions should be set at three per year for one hour at time.","The child welfare services are given the opportunity to supervise. This is primarily because it still seems that the parents are unable to avoid subjecting [X] to the stresses described above, and because the parents, especially the father, are highly antagonistic towards the child welfare service. The court is not confident that the parents are able to adequately protect [X] during contact.\u201d","22.The District Court also authorised the non\u2011disclosure of the foster home\u2019s address by reference to:","\u201c... the pressure that remains in the case from the parents and the circle around them, and to [X]\u2019s need for peace and quiet. The court considers it a necessary protection for the foster family that their address and identity are not known to the parents, while the court does not find the parents\u2019 need to know the address and identity to be sufficiently compelling.\u201d","23.Lastly, the District Court decided that the contact arrangement which it had decided on in the judgment should take effect immediately, that is, before the judgment would otherwise become final.","24.On 20 March 2018 the High Court refused leave to appeal against the District Court\u2019s judgment, and on 12 June 2018 the Supreme Court\u2019s Appeals Committee dismissed the first and second applicants\u2019 appeal against the High Court\u2019s decision."],"264":["1.The applicant, Ms Anastasiya Olegovna Kramareva, is a Russian national who was born in 1990 and lives in Lyubertsy. She was represented before the Court by Ms V.V. Leonidchenko, a lawyer practising in Moscow.","2.The Government were initially represented by Mr M. Galperin, the former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in that office, Mr M. Vinogradov.","3.The facts of the case may be summarised as follows.","4.From 13 November 2015 the applicant was a part-time employee of the State company Mosecostroy (\u201cthe company\u201d).","5.On 7 July 2016 the company terminated the applicant\u2019s contract of employment on the grounds that another employee had been employed to perform the same duties on a full-time basis, in accordance with Article 288 of the Labour Code.","6.On an unspecified date the applicant brought proceedings against the company before the Preobrazhensky District Court of Moscow. She asked the court, firstly, to declare the termination of her employment contract unlawful and to reinstate her; secondly, to award her compensation for lost earnings and non-pecuniary damage; and thirdly, to order the company to provide her with copies of some work-related documents.","7.At the hearing, the representatives of the applicant, the company and a third party, private company M., were present and made their submissions to the court. A prosecutor was also present. At the end of the hearing, the prosecutor gave an opinion that the applicant\u2019s claims should be allowed in part concerning the company\u2019s obligation to provide her with copies of documents and that the remainder of her claims should be dismissed.","8.Following the prosecutor\u2019s opinion, the parties orally presented their closing arguments. The applicant asked that her claims be granted, without specifically referring to the prosecutor\u2019s submissions. The defendant asked that the applicant\u2019s claims be dismissed in full and also objected to the part of the prosecutor\u2019s submissions which supported the applicant\u2019s claims.","9.On 11 October 2016 the District Court allowed the applicant\u2019s claims in part. It ordered the company to provide the applicant with copies of work related documents and awarded her compensation for non-pecuniary damage in that regard. Finding that the termination of the applicant\u2019s employment contract had been lawful in accordance with Article 288 of the Labour Code and that the relevant procedure for the termination had been complied with, it dismissed the remainder of the applicant\u2019s claims.","10.The applicant appealed. In her appeal she did not raise any arguments concerning the prosecutor\u2019s participation in the proceedings.","11.At the appeal hearing, the applicant and her representative maintained their claims, while the company\u2019s representative objected to the applicant\u2019s appeal. The prosecutor supported the judgment of the District Court. There is no evidence that the parties submitted any comments in reply to the prosecutor\u2019s opinion.","12.On 2 February 2017 the Moscow City Court upheld the judgment of the District Court.","13.The applicant lodged appeals on points on law with the Moscow City Court and the Supreme Court. On 28 June and 25 July 2017 respectively, the Moscow City Court and the Supreme Court dismissed the applicant\u2019s further appeals."],"265":["1. The applicant, Yusufeli \u0130l\u00e7esini G\u00fczelle\u015ftirme Ya\u015fatma K\u00fclt\u00fcr Varl\u0131klar\u0131n\u0131 Koruma Derne\u011fi (\u201cthe applicant association\u201d), is a non-profit association with its registered office in Yusufeli, a town in the province of Artvin. The applicant association was represented before the Court by its president, Mr R. Aky\u00fcrek, who is also a lawyer practising in Artvin.","2. The Government were represented by their co-Agents, Ms Aysun Akceviz and Mr Ahmet Metin G\u00f6kler, Acting and Deputy Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey, respectively.","The circumstances of the case","3. The application concerns a dispute about the construction of the Yusufeli Dam and the hydroelectric power plant in the \u00c7oruh River in north-eastern Turkey.","4. The facts of the case, as submitted by the parties and as can be seen from the documents submitted by them, may be summarised as follows.","The applicant association","5. The applicant association\u2019s aims, as stated in its articles of association, are \u201cto protect the cultural and tourist assets and appearance of the town of Yusufeli; ... to study and fight against the construction of the Yusufeli Dam; ... to assist the local population in the event of their displacement should the dam be constructed; ... to enter into talks with Government authorities with a view to resolving issues and finding solutions in the event of the inundation of the town; ... to provide financial assistance and support to residents [living] in poverty (including students, widows and war victims and disabled persons); ... to form sports teams and social groups with a view to fostering Turkish customs among young residents ...; to appoint commissions or consult scientists with a view to identifying and reporting on various problems ...; to engage in activities (including for-profit activities) aimed at promoting tourism in Yusufeli; and to support and liaise with other non-governmental associations\u201d. The applicant association has no branches and its board of directors is made up of local residents. According to its general assembly meeting records for 2012 and 2015, it had 129 and 133 registered members, respectively, in those years. No individual details regarding the applicant association\u2019s members were submitted to the Court.","Planning of the Yusufeli Dam","6. The State Water Works Department, in conjunction with the State Electricity Department, conducted a study in 1969 in order to determine the energy resources in the \u00c7oruh river basin.","7. A master plan setting out a target of 1.468 billion kWh per year in energy production \u2013 with a view to constructing fifteen dams and thirty-four hydroelectric power plants \u2013 was prepared in 1982. A report on the feasibility of the Yusufeli Dam was completed in 1986, which compared a construction model comprising two envisaged dams with another that consisted of three dams. According to the feasibility report, the town of Yusufeli would be submerged by the two-dam structure, whereas under the three-dam scenario it would not. Even so, having regard to the costs of the project and the two models\u2019 comparative storage capacity and envisaged respective total energy production, the two-dam model was approved in 1990.","8. On 23 July 1997 the Council of Ministers, by means of a resolution, decided to exempt a consortium of international companies and one domestic company from the provisions of the State Procurement Act (Law no. 2886) for the purposes of the construction of the Yusufeli Dam and hydroelectric power plant, provided that the consortium secured international loans for the financing of the project.","Administrative proceedings brought by the applicant association","9. On 3 October 2001 the applicant association called on the Ministry of Energy and Natural Resources (\u201cthe Ministry\u201d) to abandon and cancel the project for the construction of the Yusufeli Dam. It submitted that the two-dam project would submerge Yusufeli town centre and seventeen neighbouring villages and that 30,000 residents would be displaced. It argued that serious and irreversible damage would be caused to agriculture, tourism, culture and the livelihood of local residents. It voiced its regret that no environmental impact assessment (\u201cEIA\u201d) had been undertaken with respect to the project. In the event that the project nevertheless went ahead, it invited the Ministry to reconsider the alternative three-dam project, which would be more sustainable and would not lead to the submersion of the town centre and the displacement of its residents.","10. On 20 December 2001 the Ministry replied to the applicant association that the current two-dam project had been selected as the most viable alternative after detailed studies had been carried out comparing several options. The Ministry noted that any amendments to the project plans or its cancellation would affect the production of electricity in other dams along the \u00c7oruh River and could render their operation economically non-viable. The Ministry furthermore submitted that even though the Yusufeli Dam and the hydroelectric power plants had been exempt from the EIA procedure on account of provisional section 1 of the Regulation on Environment Impact Assessment, a private EIA report had nevertheless been prepared in order to meet the demands of financial credit institutions. The Ministry lastly noted that a resettlement plan had been prepared for those residents who would be displaced because of the construction of the Yusufeli Dam and that its details were still in the development stage.","11. The applicant association brought an action in the Supreme Administrative Court, alleging that the Ministry\u2019s reply amounted to an implicit rejection of its request for the cancellation of the Yusufeli Dam project, and asking for that reply to be set aside. It also asked the Supreme Administrative Court to set aside the Council of Minister\u2019s resolution of 23 July 1997 and to further declare that the impugned project was subject to EIA regulations.","12. On 1 July 2005 the Supreme Administrative Court, sitting as a first-instance court, set aside the Ministry\u2019s implicit rejection of 20 December 2001 and cancelled the Yusufeli Dam project and quashed the Council of Minister\u2019s resolution of 23 July 1997. In its decision, the Supreme Administrative Court noted that the margin of appreciation enjoyed by the administrative authorities in the determination of the technical and economic aspects of hydroelectric energy production was limited by the requirement to protect the public\u2019s right to a healthy environment and by the need to protect the overall public interest. Citing Article 56 of the Constitution and sections 1 and 10 of the Environment Act \u2013 together with the \u201cList of Industrial Activities\u201d annexed to the Regulation on Environment Impact Assessment, according to which proposed river-powered plants were required to undergo an EIA \u2013 the Supreme Administrative Court established that the impugned project had to undergo such an assessment. As to the question of whether the Yusufeli Dam project could be exempted from the EIA process on account of provisional section 1 of the Regulation, the Supreme Administrative Court replied in the negative. It noted that the right to such an exemption only applied to projects (i) whose action plans had been approved, or (ii) in respect of which a decision to expropriate had been taken, or (iii) in respect of which the required permits, licences or other forms of approval had been granted, or (iv) whose location had, before 7 February 1993, been determined, in accordance with the relevant legal framework. Noting that the Ministry had been unable to furnish the court with any document indicating that any one of those steps had been taken before that date, and emphasising the fact that as at that date the impugned project had not even been included in the State\u2019s general investment action plan, the court held that provisional section 1 was not applicable to the dispute and that the project had to go through the EIA procedure.","13. The Supreme Administrative Court furthermore noted that despite the fact that the Ministry had mentioned that an EIA report had been prepared in the course of the project, no such report had been submitted for its consideration during the proceedings. The court also noted that the Ministry had not given any consideration to concerns voiced by the Ministry of Forestry regarding the inundation of a wildlife preservation area in the \u00c7oruh river basin in the event of the construction of the dam and to the Yusufeli Office of the Ministry of Agriculture\u2019s concerns that 85% of the local agricultural produce (unique to the region) would be irretrievably lost. The Supreme Administrative Court noted in passing that such shortcomings in the decision-making process had prompted the credit institutions to demand an EIA report from the Ministry.","14. The Supreme Administrative Court also took into account the Ministry\u2019s response that apart from the above-mentioned initial feasibility report undertaken in 1986 a thorough comparison between a two-dam structure and a three-dam structure had not been made. It found that the two-dam structure had been favoured solely on account of its larger storage capacity, lower construction costs and greater output of electricity; however, it noted that the initial feasibility had not taken into account (i) the fact that the two-dam structure would affect approximately 16,000 residents on account of the submersion of the town centre, the seventeen neighbouring villages, 85% of the area\u2019s fertile agricultural land, and 459 hectares of a local wildlife preservation zone, (ii) the loss of roads and 26 km of river rafting, and (iii) the expropriation and resettlement costs and the cost of building new roads.","15. For the above reasons, the Supreme Administrative Court concluded that although it was apparent that the project would have a positive impact on the country\u2019s electricity needs, it was nevertheless necessary to update the project with an EIA report and to revisit the conclusions reached in 1986. It furthermore declared unlawful the Council of Ministers\u2019 resolution of 23 July 1997 exempting the construction of the Yusufeli Dam and hydroelectric power plants from the State Procurement Act.","16. Following an appeal lodged by the Ministry, the Supreme Administrative Court\u2019s General Assembly of Administrative Proceedings Divisions ( Dan\u0131\u015ftay \u0130dari Dava Daireleri Genel Kurulu \u2013 \u201cGeneral Assembly\u201d) quashed the Supreme Administrative Court\u2019s decision of 1 July 2005 by nineteen votes to ten on 23 February 2006. The General Assembly first considered that the Council of Ministers\u2019 resolution of 23 July 1997 had been lawful, given the fact that the project (which was of an exceptional nature) was to be realised by a consortium of international companies on the basis of bilateral accords concluded by several countries. It also held that the exemption provided for in provisional section 1 of the Regulation applied to the project in question, given the fact that the two-dam model had been adopted in 1990. In the General Assembly\u2019s view, the adoption of the two-dam model necessarily implied that the location of the project had been determined before 7 February 1993 \u2013 one of the grounds justifying the exemptions set out in provisional section 1. With respect to the question of whether it was necessary to revisit the conclusions reached after the above-mentioned comparison between a two-dam structure and a three-dam structure, the General Assembly deemed that the Supreme Administrative Court\u2019s assessment had gone beyond a review of the lawfulness of the project and had encroached on the executive\u2019s margin of appreciation.","The General Assembly accordingly remitted the case to the Supreme Administrative Court for a fresh examination.","17. On 20 November 2007 the Supreme Administrative Court dismissed the case by incorporating the General Assembly\u2019s reasoning into the wording of its decision.","18. On 15 October 2012, following an appeal by the applicant association, the General Assembly upheld the Supreme Administrative Court\u2019s decision of 20 November 2007.","19. On 4 February 2013 the applicant association lodged an individual appeal with the Constitutional Court alleging (on account of the unlawful decision of the General Assembly) an infringement of its and its members\u2019 right to fair trial, right to a healthy environment, right to respect for family life and right to protection of their property.","20. On 12 September 2013 the Constitutional Court declared the appeal incompatible ratione personae; referring to section 46 (1) and (2) of Law no. 6216 establishing the Constitutional Court and its rules of procedure, it noted that a non-governmental organisation was only allowed to bring an individual appeal contesting a measure that directly affected its legal personality. The Constitutional Court deemed that the arguments advanced by the applicant association were of a kind that only the actual residents of Yusufeli could make; accordingly, it could not be said that the dam project affected those rights or affairs of the applicant association that pertained to its legal personality.","Relevant law","Domestic law","(a) Environmental protection","21. The relevant domestic law, as in force at the time in question, can be found in Ta\u015fk\u0131n and Others v. Turkey (no. 46117\/99, \u00a7 94, ECHR 2004 \u2011 X) and Okyay and Others v. Turkey (no. 36220\/97, \u00a7\u00a7 46-50, ECHR 2005 \u2011 VII).","22. The relevant provisions of the Regulation on Environmental Impact Assessments, published in the Official Gazette no. 2308 of 23 June 1997, as in force at the time and in so far as relevant, read as follows:","Section 1","\u201cThe objective of this regulation is to set out the administrative and technical rules to be followed in the environmental impact assessment process with a view to identifying and assessing all [potential] consequences on the environment and to preventing the negative effects of the activities of real or legal persons that are within the scope of the Regulation.\u201d","Provisional Section 1","\u201cThe provisions of this regulation shall not apply in the event that, before 7 February 1993: ... projects were approved in respect of the activities in question; or the relevant permits, licences, approvals were given; or decisions to expropriate were taken; or the location was determined within the scope of the relevant framework; or [the planned activity] was placed within the scope of an investment programme; or site development plans were approved ... .\u201d","(b) State Procurement Act","23. Article 89 of the State Procurement Act (Law no. 2886), as worded at the relevant time, provides as follows:","\u201cIn cases ... where it is not possible to apply the provisions of this Law, the Council of Ministers may decide on a proposal from the relevant Ministry to remove from the scope of this Law the procurement of goods or services.\u201d","(c) Right of Individual Application","24. Section 46 of Law no. 6216 establishing the Constitutional Court and its rules of procedure provides as follows:","\u201c1. Individual appeals may only be lodged by those whose actual and personal rights are directly affected by an act, action or omission.","2. Private-law legal persons may only lodge an individual appeal that alleges a violation of those of their rights that relate to their legal personality.\u201d"],"266":["2.The applicant was born in 1930 and died in 2020. He lived in Oradea. He was represented by Mr D.M. Marcu, a lawyer practising in Oradea. On 27April 2020 MrIoan-Dan Jivan, his son and only heir, expressed his wish to continue the proceedings.","3.The Government were represented by their Agent, most recently MsO.F. Ezer, of the Ministry of Foreign Affairs.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.In 2017 the applicant was in his late eighties. He had a partially amputated leg, which he lost in 2015, when he was eighty-five years old, and suffered from several medical conditions, such as cataracts, loss of hearing and incontinence. He needed a wheelchair to move around and had recently become bedridden as he had lost the strength to manipulate his wheelchair. He lived on the fourth floor of a building and was helped in his daily activities by his son. There were no neighbours or other family members nearby to offer support.","6.On 27 June 2017 a physician acting at the request of the Bihor Commission for the Assessment of Adults with Disabilities (\u201cthe Commission\u201d, see paragraph 14 below) evaluated the applicant\u2019s functional status according to the index of independence in activities of daily living (\u201cthe ADL index\u201d). She established the applicant\u2019s score as follows: zero points in relation to personal hygiene, dressing, and using the bathroom \u2013 with occasional incontinence (one point) \u2013, and two points in relation to feeding. The applicant\u2019s overall score was three points (see paragraphs 16 to 19 below).","7.On 11 July 2017, following a visit to the applicant\u2019s flat to assess his living arrangements and their compatibility with his medical situation, the Commission produced a social enquiry report. It noted that the applicant was bedridden, and could move around his flat only in a wheelchair. He needed help with feeding, moving and transport, using means of communication, taking care of his finances and medication. He was fully dependent on support for his personal hygiene, dressing, preparing food, housework, and grocery shopping. The report also mentioned that the applicant was living on his own and received money, food, and help with housekeeping from his son.","8.On 25 September 2017 an inspector from the Service for the Complex Evaluation of Adults with Disabilities of the Bihor County Directorate General for Social Welfare and Child Protection (see paragraph 14 below) visited the applicant\u2019s home and reported on his living conditions. The report described the applicant\u2019s medical condition and general poor physical state, and noted that he was unable to take care of his basic needs on his own, he was able to sit but not walk, had significantly lost his muscular mass, and weighed 40-45 kg. It recommended consolidating his support network and ensuring constant support to supplement his lost autonomy.","9.On 3 October 2017 the Commission issued a certificate establishing that the applicant suffered from a medium-level disability (see paragraph15 below). The applicant contested the assessment and requested to be recognised as suffering from a severe disability necessitating a personal assistant. He explained his situation in detail and relied on his medical file, the ADL index and the social enquiry report. Eventually the certificate was annulled by the courts as it did not give reasons for the assessment (final decision of 5 November 2018 of the Oradea Court of Appeal).","10.On 20 December 2018 the Commission issued a new certificate, confirming the medium-level disability. The Commission also considered that the applicant\u2019s condition was permanent and did not necessitate periodic reassessment.","11.On 14 January 2019 the applicant contested the Commission\u2019s decision before the Bihor County Court and asked again to be recognised as suffering from a severe disability necessitating a personal assistant. He argued that the evidence adduced, that is, his medical file, the ADL index, and the social enquiry report, attested that he was completely reliant on support. He argued that the law classified that situation as being a case of severe disability necessitating a personal assistant. He noted that the Commission had not contested those findings but had failed to take them into account when establishing the degree of disability.","12.On 5 March 2019 the Bihor County Court allowed the applicant\u2019s claim. The relevant parts of its decision read as follows:","\u201cIn the light of the medical and psychosocial criteria set [by law] for the classification [into various degrees of disability], the ADL index, the medical evidence and the social enquiry report call for classifying [the applicant]\u2019s disability as being severe necessitating a personal assistant. [Moreover] the law expressly provides that a patient who has completely lost the capacity to feed himself or herself, maintain personal hygiene and care, and thus needs assistance, a situation in which [the applicant] also finds himself, constitutes a severe disability necessitating a personal assistant. Despite this, the [Commission] classified [the applicant]\u2019s condition as a medium-level disability. Consequently, the certificate must be annulled and the [Commission] must issue a new certificate correctly reflecting the [applicant\u2019s] degree of disability, that is a severe disability necessitating a personal assistant.","...","The court does not have the power to make a medical, psychological, and social evaluation of the patient, that evaluation being made by specialists. At the same time, the court does not decide on the patient\u2019s level of disability, that decision being taken exclusively by the [Commission]. However, the court has the power to verify the correlation between the socio-medical reports and the level of disability as regulated by Order [no. 762\/2007]. In the present case an inconsistency has been found [between the two], in so far as the medical and social reports call for a different level of disability than that which was established in the contested certificate, bearing in mind the table of classification provided for by Order [no. 762\/2007].\u201d","13.The Commission appealed and in a final decision of 22May 2019, the Oradea Court of Appeal reversed the above judgment and found that the certificate of 20 December 2018 (see paragraph 10 above) had been accurate. The relevant parts of the decision read as follows:","\u201cThe medical condition which was taken into account for establishing the level of disability is \u2018partial amputation of the left leg\u2019 and [the applicant] did not prove (with expert reports or medical data) that he also suffered from any other physical, sensory, psychiatric, mental and\/or associated conditions which under Order [no.762\/2007] must be evaluated to establish the level and type of disability.","...","The court notes that the applicant\u2019s principal medical condition is not among those classified as constituting a severe disability, but among those classified as a medium disability.","Contrary to the decision at first instance, the court considers that the ADL index of 27June 2017, according to which [the applicant] ... is in a state of total dependency needing a personal assistant, and the social enquiry report according to which he needs help for his daily activities, medication and grocery shopping, are not sufficient to conclude that his disability is severe necessitating a personal assistant, in so far as his mobility condition is not among those classified by law at that level of disability, and as the assessment that the Commission undertakes is a complex process which takes into account not only social criteria but also medical and psychological criteria.\u201d"],"267":["2.The applicant was born in 1938 and lives in Matera. She was represented before the Court by Mr A. Iuliano, a lawyer practising in Matera.","3.The Government were represented by their Agent, Mr L. D\u2019Ascia, Avvocato dello Stato.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant\u2019s husband, A.C., retired on 1 January 1990. His pension, in accordance with section 2(1) of Law no. 324 of 27 May 1959 (\u201cLawno.324\/1959\u201d), included a special supplementary allowance (indennit\u00e0 integrativa speciale \u2013 \u201cthe IIS\u201d), conceived as a cost-of-living adjustment separate from the main pension payment.","6.In accordance with the relevant laws applicable at the time, pensions of public servants were not based on the principle of \u201call-inclusiveness\u201d, as was the case for pensions of private-sector employees. Public servants\u2019 pensions were composed of a fixed salary element and a series of other independent elements, such as the IIS. This type of calculation method meant that whereas the pension paid to the survivor of a private-sector employee was calculated as a percentage of the overall pension, the pension paid to the survivor of a public-sector employee was calculated as a percentage of only the fixed salary element, and the ancillary allowances were paid in full.","7.Starting in 1994 the Italian Parliament passed a series of laws which were aimed at harmonising the pension schemes of employees in the public and private sectors. On23December 1994 Law no. 724\/1994 was enacted. Itprovided for the harmonisation of the payment of pensions in the public and private sectors, meaning that the pensions of public servants were to be determined by a single calculation on the basis of the salary elements subject to contribution, including the IIS. At the same time, section 15(5) of that Law preserved arrangements which were already in place, such as those for A.C., who had been in receipt of a pension since 1990.","8.Subsequently, Law no. 335 of 8 August 1995 (\u201cLaw no. 335\/1995\u201d) entered into force. Without explicitly repealing Law no. 724\/1994, section 1(41) of Law no. 335\/1995 extended the rules governing survivors\u2019 pensions to all forms of the general compulsory insurance scheme.","9.A.C. died on 1 April 2002. As a consequence, from 1 May 2002 the applicant received a survivor\u2019s pension (calculated as 60% of A.C.\u2019s pension). In accordance with section 1(41) of Law no.335\/1995, the IIS was combined with A.C.\u2019s salary and therefore paid as a percentage of A.C.\u2019s overall original pension.","10.On 22 July 2005 the applicant brought proceedings against the National Public Service Social Security Institute (Istituto Nazionale di Previdenza per i Dipendenti dell\u2019Amministrazione Pubblica \u2013 hereinafter \u201cthe INPDAP\u201d, whose functions, following its abolition in 2011, are currently carried out by the Istituto Nazionale della Previdenza Sociale (INPS) before the Basilicata Court of Auditors. She complained that the IIS should have been paid in its entirety, that is, as an ancillary allowance rather than as a percentage of the benefit originally paid to her late husband.","11.By a judgment of 2 April 2007 the Basilicata Court of Auditors granted the applicant\u2019s claim. Referring to judgment no. 8\/QM of 17April2002 of the Joint Sections (Sezioni Riunite) of the Court of Auditors (\u201cjudgment no. 8\/QM\/2002\u201d), it held that the new system provided for in Law no. 335\/1995 only applied to direct pensions which had been paid after 1January 1995. As A.C. began to receive his pension in 1990, the applicant should have received the IIS in its entirety pursuant to section 15(5) of Lawno. 724\/1994.","12.On 1 January 2007, while an appeal by the INPDAP was pending before the Central Section of the Court of Auditors, Law no. 296\/2006 entered into force. Section 1(774) of that Law provided an authentic interpretation of section 1(41) of Law no. 335\/1995, establishing that, in instances where survivors\u2019 pensions were received after the entry into force of Lawno.335\/1995, regardless of the date of the payment of the direct pension, the IIS had to be paid as a percentage, forming an integral part of the main pension.","13.Pursuant to the entry into force of Law no. 296\/2006, on 21October2013 the Central Section of the Court of Auditors, acting as an appellate court in the applicant\u2019s case, allowed the INPDAP\u2019s appeal, reversed the first-instance judgment and dismissed the applicant\u2019s claim."],"268":["2.The applicant was born in 1975 and lives in Sofia. He was represented by Mr K. Kanev, the chairman of the Bulgarian Helsinki Committee, a non\u2011governmental organisation based in Sofia. On 15 January 2016 the then President of the Fifth Section gave Mr Kanev leave to represent the applicants in all pending and future cases in which he had been appointed to personally act as their representative (Rule 36 \u00a7 4 (a) in fine of the Rules of Court).","3.The Government were represented by their Agent, MsI.Stancheva\u2011Chinova of the Ministry of Justice.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.In his initial application, the applicant submitted that in 1999, he had been diagnosed with psychiatric disorders; the Government have not disputed those facts. On the basis of that diagnosis, on 12 May 2000 the Sliven Regional Court had placed him under partial guardianship. That measure had attracted, among other restrictions, the application of Article 42 \u00a7 1 of the Constitution (see paragraph 13 below) to the applicant, excluding him from the right to vote. The underlying court decision had held that the applicant\u2019s health condition did not allow him to take good care of himself and that he was occasionally aggressive, but that the situation was not too serious.","6.Furthermore, the following facts have been submitted by the Government in their observations, as well as by the applicant in reply, in respect of the present proceedings.","7.On 4 November 2015, the applicant lodged an application with the Ruse Regional Court for the restoration of his legal capacity, through the services of a lawyer authorised by him and his guardian. In the proceedings that followed, on 15 February 2016 the court noted that the application had been lodged by the applicant\u2019s guardian and terminated the proceedings on this ground. According to the applicable law, the applicant could only be a respondent in such proceedings; therefore, the guardian should have submitted an address for the applicant, in order that he might be summoned in that capacity. As no such address was submitted to the court, the proceedings could not continue. Following an appeal by the applicant, on 4May 2016 the Veliko Tarnovo Court of Appeal upheld the first-instance court\u2019s decision.","8.On 19 May 2016, the applicant lodged a request for leave to appeal with the Supreme Court of Cassation, arguing that he had been denied free and direct access to a court, in contravention of the Convention. The Supreme Court of Cassation quashed the decision because the proceedings in question had been terminated, and remitted the case to the Ruse Regional Court for those proceedings to be reopened.","9.On 19 October 2016, Ruse Regional Court terminated the proceedings again, reasoning that the applicant\u2019s guardian, considered as a claimant, had failed to comply with the court\u2019s instructions to specify the respondent in the case and to provide an address at which he could be summoned.","10.On 24 January 2017, the President of the Republic of Bulgaria scheduled parliamentary elections, to be held on 26 March 2017. The applicant was unable to participate, owing to the fact that he had been declared legally incapable.","11.Between 2014 and February 2017, the applicant\u2019s guardian has been changed twice, for logistical reasons.","12.On 17 May 2017, the applicant lodged a fresh application with the Sofia City Court for the restoration of his legal capacity. On 7 December 2017, the Sofia City Court gave a judgment restoring legal capacity to the applicant and lifting his guardianship considering that the applicant was able to manage his own affairs and interests and to realise the consequences of his own acts."],"269":["2.The applicant was born in 2001 and lives in Bucharest. She was represented by Ms V. \u0162ucureanu, a lawyer practising in Bucharest.","3.The Government were represented by their Agent, most recently MsO.-F. Ezer, of the Ministry of Foreign Affairs.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.On 22 October 2012, a private Romanian television channel with national coverage sent its reporters to the public school in Bucharest where the applicant was enrolled to cover a recent tragic event, namely the death of a pupil during a school trip on which the school pupils were accompanied by school staff.","6.The applicant was not among the pupils who attended the above\u2011mentioned school trip.","7.A reporter interviewed the applicant, aged eleven at the time, in front of her school, in the absence of her parents, close relatives or teachers, and without obtaining prior consent from any of them. The reporter questioned the applicant, among other pupils, in relation to the tragic event, asking her:","- if she had spoken to her schoolmates who had attended the school trip (Ai vorbit cu colegii t\u0103i care au fost \u00een excursie?) during which the tragic event had occurred;","- if she had any knowledge from her schoolmates about whether a schoolteacher had been in proximity to the victim (\u015etii cumva, era vreun profesor \u00een jurul ei, \u0163i-au zis colegii?) when the tragic event had occurred;","- how she would describe the schoolteachers who had accompanied the pupils on the school trip (Cum sunt profesorii cu care a\u0163i fost \u00een excursie?);","- if any similar events had taken place at the school before.","8.The applicant told the reporter that she had heard from her schoolmates who had been present during the school trip that the victim had felt ill. The applicant also said that she could not remember anything more, but she believed that the girl had either felt ill and leaned on the train door, or she had been pushed. She also said that she believed that no schoolteacher had been near to the victim when the tragic event had occurred because if one had been present, the tragedy would not have happened. The applicant further said that \u201cit would be better to care more for pupils and to make them secure\u201d (Mai bine ar fi trebuit s\u0103 fie mai mult\u0103 grij\u0103 sau paz\u0103 pentru elevi). When asked particularly about the schoolteachers, the applicant said that they \u201cshould have taken better care\u201d. Lastly, concerning the question of whether other incidents of this kind had occurred in her school, the applicant told the reporter that no such incidents had occurred there, but they had done so in another school during a school trip with an accompanying schoolteacher, who she named.","9.On the same day (22 October 2012), the television channel aired a report in which extracts from the interview recorded with the applicant were broadcast. The news, including the video and a transcript, was also posted on the television channel website under the title \u201cSchoolmates of the girl who fell out of the train are shocked. The pupil was going to the toilet when the tragedy occurred\u201d.","10.The applicant alleges that, following that television report, she was recognised by her schoolmates and teachers and subsequently suffered from their showing a hostile attitude towards her. Her mother was summoned to the school to give a written declaration that she would prevent the applicant from making any other statements in front of journalists. The applicant\u2019s mother also made apologies and gave explanations to all of the schoolteachers."],"270":["2.The applicant was born in 1968 and lives in Reykjavik. He was represented before the Court by Mr \u00de\u00f3rir J\u00fal\u00edusson, a lawyer practising in Reykjavik.","3.The Government were represented by their Agent, Mr Einar Karl Hallvar\u00f0sson, State Attorney General.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","Background to the case","5.In the autumn of 2008, the global liquidity crisis affected the Icelandic banking sector. From 7 to 9 October 2008 the Financial Supervisory Authority (Fj\u00e1rm\u00e1laeftirliti\u00f0) appointed a resolution committee for each of the three largest Icelandic banks, which took over the banks\u2019 operations. The collapse of each of the banks had major effects on the other banks left standing. One of the banks that failed was Kaup\u00feing Bank hf. (hereinafter \u201cKaup\u00feing\u201d), which collapsed on 9 October 2008. Following these events, the office of a Special Prosecutor (hereinafter \u201cthe Special Prosecutor\u201d) was established.","6.The applicant, who is a lawyer licensed to practise before the Supreme Court of Iceland, held the positions of director of the loan division and member of the group credit committee of Kaup\u00feing until the bank\u2019s collapse.","Criminal proceedings against the applicant","7.By a letter of 1 October 2009, the Financial Supervisory Authority sent a complaint to the Special Prosecutor regarding alleged market manipulation of shares in Kaup\u00feing between June 2005 and October 2008. Several investigations were subsequently launched into the trading practices of Kaup\u00feing, during which twelve of its former employees were investigated for alleged violations of the Act on Securities Transactions in relation to several individual transactions and trading practices by Kaup\u00feing prior to its collapse. The applicant was among those investigated.","8.In connection with the investigation of those cases, the Vesturland District Court granted the Special Prosecutor several warrants to tap all telephone calls made to and from the telephone numbers registered to or used by the applicant. In his initial request dated 9 March 2010, the Special Prosecutor cited four substantial investigations relating to Kaup\u00feing\u2019s activities prior to its collapse: the \u201cAl Thani\u201d, \u201cHolt\u201d, \u201cCLN\u201d and \u201cDesulo\u201d investigations. The Special Prosecutor stated that \u201cthere is suspicion that [the applicant] took part in decisions concerning allegedly criminal conduct in connection with [Kaup\u00feing\u2019s] activities\u201d. That assertion was mirrored in a subsequent Vesturland District Court ruling granting a warrant to tap telephone calls, and in the Special Prosecutor\u2019s subsequent requests to continue the telephone tapping. On the basis of those warrants, the applicant\u2019s telephones were tapped from 9 March to May 2010. Reports on the progress of the telephone tapping refer to the subjects of the tapping, including the applicant, as \u201csuspects\u201d (sakborningar) and refer to, inter alia, the applicant\u2019s conversations with others during which Desulo Trading Ltd., Mata Investment Company Ltd. and Holt Investment Group Ltd. were mentioned.","9.On 19 April 2010 the applicant was questioned in relation to the Al Thani investigation. He was ultimately not prosecuted in that case.","10.On 14 May 2010 the applicant was questioned in relation to the Holt investigation, one of the investigations referred to by the Special Prosecutor in his application for a warrant. The applicant was questioned as a witness and, as such, was notified of his obligation to testify truthfully and his right not to incriminate himself (see paragraph 21 below). He was informed that the investigation concerned suspicions of criminal behaviour on the part of the directors and employees of Kaup\u00feing in connection with stock purchases by Holt Investment Group Ltd. and that the allegedly criminal behaviour might concern violations of the financial crimes chapter of the General Penal Code, the market manipulation provisions of the Act on Securities Transactions, the Act on Public Limited Companies and the Act on Financial Undertakings. He was not accompanied by a legal representative during the interview, nor does it appear that he was given any notification as to the right to have such a representative present.","11.On 12 November 2011 the applicant was again questioned in relation to the Holt investigation, this time as a suspect. He was accompanied by his chosen defence counsel and was notified of his right to remain silent and his obligation to testify truthfully, should he choose to answer questions. On 17November 2011 the applicant was again questioned as a suspect.","12.On 15 March 2013 the applicant was indicted, along with several others. He was charged with seven counts of fraud committed through abuse of position (umbo\u00f0ssvik). Three counts concerned allegations of loans improperly granted to Holt Investment Group Ltd. Four counts concerned allegations of loans improperly granted to Desulo Trading Ltd. In both instances, the applicant was accused of having taken part in decisions to grant the companies in question loans from the bank, in disregard of the bank\u2019s own rules and without properly ensuring the bank\u2019s interests.","13.During the course of the subsequent proceedings before the Reykjavik District Court, the applicant submitted two requests to have the case against him dismissed, referring to the telephone tapping and the submission into evidence of transcripts of phone calls between him and two named lawyers. Both requests were dismissed by the District Court and again on appeal to the Supreme Court on the basis that the lawyers in question had not been the applicant\u2019s defence counsel and that the submission of the transcripts had therefore not violated his right to a fair trial.","14.By a judgment of 26 June 2015 the Reykjavik District Court convicted the applicant on six counts of fraud through abuse of position, but acquitted him on one of the counts concerning Holt Investment Group Ltd. He was sentenced to two and a half years\u2019 imprisonment.","15.The applicant appealed against his conviction by way of an appeal to the Supreme Court of Iceland lodged by the Director of Public Prosecutions at his request.","16.Before the Supreme Court, the applicant submitted that the case against him should be dismissed because he had been questioned as a witness on 14 May 2010 while actually being considered a suspect in the case.","17.By a judgment of 6 October 2016 the Supreme Court partly overturned the Reykjavik District Court\u2019s judgment and convicted the applicant on all seven counts of fraud through abuse of position. The Supreme Court upheld the sentence imposed by the District Court.","EMERGENCE of new information","18.On 5 December 2016 confidential information regarding the financial interests of the judges of the Supreme Court came to light in the media (see Sigr\u00ed\u00f0ur El\u00edn Sigf\u00fasd\u00f3ttir v. Iceland, no. 41382\/17, \u00a7\u00a7 13-14, 25 February 2020). A series of news reports on television, in newspapers and on the Internet disclosed that some of the judges had owned shares in the Icelandic banks before their collapse in 2008. The reports stated that the shareholdings had, at least in some cases, not been disclosed to the Committee on Judicial Functions (nefnd um d\u00f3marast\u00f6rf). As a result of the news coverage, discussions arose about possible conflicts of interest of the judges on account of their investments in Icelandic stocks and funds, and whether the judges in question had adjudicated cases concerning the events leading up to the collapse of the banks despite such possible conflicts of interest. The applicant submitted that this was the first time he had learned about the shareholdings of a judge who had adjudicated in his case, namely Justice V.M.M.","19.It transpired from the news coverage and information later provided by the Committee on Judicial Functions that Justice V.M.M. had owned shares in Kaup\u00feing and another bank, Landsbanki Islands hf. (hereinafter \u201cLandsbanki\u201d) before they went bankrupt. In October 2008 Justice V.M.M. had owned thirty-six shares in Kaup\u00feing with a nominal value of 360 Icelandic kr\u00f3nur (ISK \u2013 approximately 2 euros (EUR) at the time of the bank\u2019s collapse). The documents submitted indicate that their real value was approximately EUR 140 at the time (thirty-six shares with a closing price of ISK 654 per share on 3 October 2008, amounting to a total value of ISK 23,544). Furthermore, Justice V.M.M. had acquired shares in Landsbanki with a total nominal value of ISK 428,075 from 8 March to 26 September 2007. The purchase price was ISK 14,753,256, but on 3 October 2008 the shares had been valued at ISK 8,518,692 (approximately EUR 62,860). Those shares were lost when Landsbanki collapsed on 8 October 2008. Justice V.M.M. was appointed to the Supreme Court in September 2010."],"271":["2.The applicant was born in 1999 and lives in Dramalj. He was represented by Ms I. Dedi\u0107, a lawyer practising in Rijeka.","3.The Government were represented by their Agent, Ms \u0160. Sta\u017enik.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.In 2015 a certain D.R., who was a minor at the time, lodged a criminal complaint against the applicant, also a minor at the time, alleging that he had persistently followed, harassed and stalked her since 2013, attempting to establish unwanted contact with her. She stated that the applicant had on many occasions addressed her with offensive words with sexual connotations. On several occasions he had physically attacked her and had grabbed her by her genitals.","6.On 6 September 2016 D.R.\u2019s mother also lodged a criminal complaint against the applicant alleging that during the summer of 2016, the applicant had frequently visited the neighbourhood where they lived, often called them and mentioned certain details from which it was clear that he had been stalking them for a while. The applicant had also sent disturbing Facebook messages from various profiles.","7.On 19 September 2016 the police informed the Rijeka Municipal State Attorney\u2019s Office that minor L.L. had also lodged a criminal complaint against the applicant, alleging that he had sent her threatening Facebook messages because she had refused to talk to him about D.R.","8.In the course of the ensuing criminal proceedings against the applicant, on 7 December 2016 a psychiatrist D.P. and psychologist D.B. submitted an expert report, which stated that the applicant suffered from paranoid schizophrenia, a behavioural and mental disorder aggravated by taking drugs or other harmful substances. At the time of the commission of the criminal offences (tempore criminis) he was in a state of diminished mental capacity and he could not understand the meaning of his actions or control them. The expert report was based on the inspection of the case file, medical documentation and personal examination of the applicant.","9.On 12 January 2017 D.P. produced a supplementto her expert report submitting that the applicant had reduced capacity of standing trial and recommending that the court provide a psychologist who would clarify the questions put to him during court hearings. Furthermore, D.P. stated that the applicant could pose a danger to others due to the unpredictability of his behaviour, given that he was under the influence of psychopathological experiences.","10.On 13 June 2017 the Rijeka Municipal Court found that the applicant, as a minor, had committed criminal offences of two counts of intrusive behaviour and one threat, while lacking mental capacity. Relying on the psychiatric and psychological expert opinions obtained during the criminal proceedings, itdecided that the applicant should be placed in a psychiatric hospitalfor a period ofsix months.","11.The applicant\u2019s appeal against that judgment was dismissed by the second-instance court on18 August 2017.","12.On 15 September 2017 the Rijeka County Court instituted proceedings for the applicant\u2019s compulsory internment in the Rab Psychiatric Hospital (hereinafter: \u201cthe Rab Hospital\u201d) for a period of six months, based on the Rijeka Municipal Court\u2019s final judgment (see paragraph 10 above).","13.On 4 October 2017 the applicant voluntarily came to the Rab Hospital, accompanied by his father, and applied for psychiatric treatment.","14.At the same time, the applicant\u2019s lawyer lodged an appeal against the decision on his internment, challenging D.P.\u2019s expert opinion on his lack of mental capacity given before the criminal court (see paragraph 8 and 9 above). On 31 October 2017 the Rijeka County Court dismissed the applicant\u2019s appeal.","15.On 9 February 2018 the Rab Hospital filed a motion, signed by doctor V.T., with the Rijeka County Court proposing outpatient treatment in respect of the applicant, bearing in mind that: i) he regularly received protective antipsychotic therapy, ii) his hospital treatment was not providing satisfactory results, iii) his parents were aware of the overall situation, iv) they have taken full care of the applicant\u2019s therapy, and v) for the purpose of completing secondary education. In its motion, the Rab Psychiatric Hospital also stated that it could not completely rule out the possibility that the applicant continued to pose a danger to himself and others.","16.On 14 February 2018 the Rijeka County Court commissioned a psychiatric expert report on the applicant\u2019s mental state from doctor K.R., who was not an employee of the Rab Hospital, with a view to deciding on the motion to replace compulsory internment with treatment at liberty.","17.On 25 February 2018 K.R. submitted her report based on the case file, medical documentation and examination of the applicant. She concluded that she had not currently observed paranoid schizophrenia, which, if it had existed at the time of the commission of the criminal offences, may have gone into remission under the influence of medication. In her view, the applicant suffered from a personality disorder and had a pronounced aggressive potential which could manifest itself in possibly frustrating circumstances. She could not rule out the danger that the applicant posed to others and thus considered it necessary to continue his treatment in the psychiatric institution.","18.On 28 February 2018 the Rijeka County Court held a hearing closed to the public at the premises of the Rab Hospital, in the presence of the applicant, his lawyer, the Rab Hospital\u2019s Head of Forensic Psychiatry Department, V.S.J., and expert K.R. K.R. maintained her findings and explained that the applicant could not have been cured during such a short period of hospitalisation. She therefore disagreed with the motion for outpatient treatment because the danger that the applicant posed to himself and others could not be ruled out.","19.Consequently, the Rijeka County Court extended the applicant\u2019s internment for another year, until 4 March 2019.","20.In May 2018 the applicant was released on his first therapeutic leave, during which he had again visited the place of residence of D.R., despite clear instructions not to do so.","21.Following the applicant\u2019s appeal against the above decision on prolongation of his internment, on 27 June 2018 a three-judge panel of the Rijeka County Court quashed the first-instance decision and remitted the case with an instruction to commission an additional expert report or, if necessary, a new expert witness evaluation. It held that it was not clear from K.R.\u2019s report whether the applicant was still suffering from the same illness that led to the commission of the criminal offences.","22.On 19 July 2018 the Rijeka County Court held a hearing closed to the public and attended by the applicant, his lawyer, the Rab Hospital\u2019s doctor V.T, and expert D.P., who was not employed by the Rab Hospital. V.T. changed the hospital\u2019s initial recommendation for out-patient treatment and proposed continuation of the applicant\u2019s compulsory hospitalization given that his first therapeutic leave in May 2018 had not been successful (see paragraph 20 above).","23.Having interviewed the applicant, expert D.P. explained that her team had been treating the applicant since 2013 with a diagnosis of acute psychotic disorder. Considering all objective parameters, the applicant had been diagnosed with paranoid schizophrenia caused by the use of drugs. He also suffered from behavioural mental disorders of longer duration. In her opinion, the applicant continued to exhibit paranoia-related projective tendencies towards D.R. and her mother and remained unaware of his condition. She proposed compulsory hospitalisation for a period of one year because such a period had been required to correct his behaviour.","24.The applicant\u2019s lawyer requested the court to commission a fresh psychiatric expert evaluation. Her request was dismissed on the grounds that the court had already obtained expert evaluation by D.P., who was not employed by the Rab Hospital.","25.On the same day, the Rijeka County Court extended the applicant\u2019s compulsory internment until 4 March 2019. Considering that there was still a possibility that the applicant, due to severe mental disorders, could commit further criminal offences, hospital treatment was required to eliminate that danger.","26.On 5 September 2018 a three-judge panel of the Zagreb County Court (\u017dupanijski sud u Zagrebu) allowed the applicant\u2019s appeal against the first\u2011instance decision of 19 July 2018 and remitted the case. It held that K.R.\u2019s expert opinion had been overlooked in the fresh proceedings and instructed the first-instance court to re-examine K.R.\u2019s and D.P.\u2019s reports, and, if necessary, to obtain a new psychiatric expert witness evaluation of the applicant\u2019s state.","27.At a hearing held on 22 October 2018, the Rijeka County Court heard V.T., and experts D.P. and K.R. Expert D.P. maintained that the applicant\u2019s compulsory internment should be continued considering that he was obsessed with the victim at the level of insanity, from which he had not yet been retrieved by previous methods. Expert K.R. submitted that the applicant\u2019s symptoms clearly indicated a dissocial personality disorder. The danger to himself and to others stemmed from his persistence in achieving his goal, and it was thus necessary to continue his treatment in a closed institution. Outpatient treatment was not expected to reduce or eliminate his risky behaviour. Representing the Rab Hospital, V.T. also stated that the applicant suffered from a dissocial personality disorder and that he would pose a threat to himself and others if he were to be released.","28.At the same hearingthe applicant\u2019s lawyer lodged a request for a fresh psychiatric expert evaluation at the Vrap\u010de Psychiatric Hospital. That request was dismissed on the grounds that V.T. and two expert witnesses D.P. and K.R. had all agreed on the applicant\u2019s diagnosis and concluded that there had been a need to continue his treatment in a closed institution. Thus, the court extended the applicant\u2019s compulsory internment until 4 March 2019.","29.The applicant\u2019s appeal against that decision was dismissed by a three\u2011judge panel of the Rijeka County Court on 19 December 2018.","30.In the meantime, on 8 November 2018, the applicant requested that he be released from the psychiatric hospital and continue his treatment at liberty. He based his request on a privately commissioned expert witness evaluation by doctor D.M., who recommended that the applicant\u2019s out-of-hospital treatment be considered, with regular reporting to a psychiatrist and the involvement of the parents in the process.","31.On 31 January 2019 the judge forwarded the applicant\u2019s request to the Rab Hospital for comments and scheduled a hearing for 13 February 2019.","32.On 7 February 2019 the Rab Hospital filed a motion for the continuation of the applicant\u2019s hospital treatment, stating that he had still not achieved a sufficient degree of criticism regarding his condition or the committed criminal offences. The danger which he posed to others had resulted from a disturbed personality structure and dynamics, he had been uncritical and insufficiently aware of his condition, had only formally verbalized remorse, while disobeying hospital rules, poorly tolerating frustration and responding to warnings with aggression. That submission was not forwarded to the applicant.","33.On 8 February 2019 the Rab Hospital submitted written observations on the applicant\u2019s motion for out-of-hospital treatment. The hospital refuted certain statements contained in D.M.\u2019s expert report, relying on relevant medical theory and practice. It further stated that the applicant\u2019s resocialization process had begun by his second therapeutic leave in early 2019. However, he had not yet reached the level required for out-patient treatment. While expert D.M. had ruled out the applicant\u2019s violent behaviour, all psychological tests had confirmed his aggressiveness and he had recently initiated physical conflict with another patient. That submission was not forwarded to the applicant.","34.At the hearing held on 13 February 2019, the Rijeka County Court served on the applicant\u2019s lawyer the Rab Hospital\u2019s written observations on his proposal for release as well the Hospital\u2019s counter proposal for the continuation of his hospital treatment (see paragraphs 32 and 33 above). The court began the hearing by reading out the applicant\u2019s motion for release as well as the Rab Hospital\u2019s proposal for continuation of his compulsory psychiatric internment. On behalf of the Rab Hospital, doctor V.T. maintained that it had been necessary to continue the applicant\u2019s treatment in the hospital in order to eliminate the danger of committing further criminal offences, since he had still been focused on the victim. According to the applicant\u2019s therapist, there had been no adequate response to the therapeutic activities, the applicant\u2019s vulgar and inappropriate behaviour towards members and therapists having continued. The applicant\u2019s lawyer contested the hospital\u2019s motion by noting that she had received it only at that hearing, stressing that the applicant\u2019s motion for outpatient treatment had been based on an independent expert opinion by D.M. who should be heard in court and reiterating her request to obtain a fresh expert opinion.","35.At the same hearing, the Rijeka County Court extended the applicant\u2019s compulsory internment until 4 March 2020, dismissing his motion for outpatient treatment. The court found that the applicant had continued to suffer from a severe mental disorder (dissocial personality disorder) and that the course of treatment showed that he had remained focused on the victim and insufficiently aware of his condition. The danger to others could not yet be ruled out, thus reducing or eliminating risks by outpatient treatment could not be expected in his current state. The court dismissed the applicant\u2019s request to obtain a fresh expert witness evaluation, deeming that the existence of the requirements for the continuation of his compulsory internment had not been called into question.","36.On 24 April 2019 a three-judge panel of the Rijeka County Court dismissed the applicant\u2019s appeal against the first-instance court\u2019s decision. As regard his complaint that the first-instance court should have commissioned a fresh expert report, it pointed out that the applicant had previously been subjected to an expert witness evaluation during his treatment in the Rab Hospital by K.R. and D.P. Both experts had agreed on the applicant\u2019s diagnosis, as well as on the need to continue his compulsory internment.","37.The applicant then lodged a constitutional complaint, claiming that his rights to a fair trial and equality before the law had been violated and that his freedom was disproportionately restricted because the domestic courts had not duly considered replacing compulsory internment with a milder measure, and they had failed to commission a new expert evaluation.","38.On 2 July 2019 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed his constitutional complaint as ill-founded.","39.According to the Government, on 22 July 2019 the applicant lodged a fresh motion for outpatient treatment. The Rijeka County Court obtained a fresh expert evaluation by K.R., who had concluded that there had been progress in the applicant\u2019s treatment. The Head of the Forensic Department of the Rab Hospital warned that the applicant\u2019s outpatient treatment should be structured and carried out cautiously. Consequently, the Rijeka County Court accepted the motion to replace compulsory internment with treatment at liberty as of 31 January 2020.","40.In the summer of 2020, the applicant again tried to contact D.R. and his condition deteriorated.","41.On 14 July 2020 the court ordered the applicant\u2019s compulsory internment, based on expert K.R.\u2019s fresh recommendation to continue the applicant\u2019s treatment under institutionalised conditions as the deterioration had occurred during outpatient treatment. The applicant\u2019s compulsory confinement has continued in the Vrap\u010de Psychiatric Hospital."],"272":["2.A list of the applicants is set out in the appendix.","3.The Government were represented by their Agent, Ms D. Djonova.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.In the course of 2014 there was a significant increase in the number of migrants, including from Afghanistan, Iraq and Syria, trying to reach various European Union countries. One of the routes used was the so-called \u201cBalkan route\u201d, which included travelling from Turkey via Greece to the then former Yugoslav Republic of Macedonia[1] and then through Serbia to the European Union. Responding to the influx of refugees, countries along the route adopted a wave-through approach, by mostly permitting the migrants to pass through.By the second half of 2015, the continued and sustained irregular migrant flows became a concern, prompting the European Union (\u201cEU\u201d) to address the situation.","6.On 7 March 2016, after several meetings and talks at the EU level and involving the countries on the route, the EU Heads of State or Governments announced, inter alia, that irregular flows of migrants along the Balkan route had come to an end.","7.On 8 March 2016 a decision entered into force not to allow the entry and controlled transit through the respondent State of migrants who were seeking to transit to Western European countries, who did not meet the requirements for entry or did not seek asylum in North Macedonia.","8.The applicants are a Syrian family from Aleppo. They left Syria in late 2015, and on 24 February 2016 they arrived in Idomeni, Greece, a town situated on the border with the respondent State, where a camp had been set up for refugees. They alleged that on 14 March 2016 they joined a large group of refugees (around 1,500) in what became known as \u201cthe March of Hope\u201d, crossed the border wading across a river (the Suva Reka), and entered Macedonian territory. After a short walk, they reached a point where hundreds of refugees (at least 500) were allegedly surrounded by military personnel of North Macedonia. There were also Czech and Serbian soldiers. They spent the night in the open air. The applicants alleged that at 5 a.m. the next morning, soldiers of North Macedonia threatened the refugees, including the applicants, with violence unless they returned to Greece. The applicants walked for three to four hours and arrived back in Idomeni, Greece.","9.The applicants are Afghan, Iraqi and Syrian nationals. They stated their personal circumstances including those that had made them leave their countries of origin. The applicants alleged that on 14 March 2016 they left the Idomeni camp, joined \u201cthe March of Hope\u201d, crossed a river (the Suva Reka) and entered the territory of the respondent State. The applicant in application no. 55817\/16, who is reliant on a wheelchair, wheeled himself where possible and relied on others to carry him over muddy or rocky terrain, and across the river. In Moin, a small village in the respondent State, the applicants were intercepted and surrounded by soldiers of North Macedonia, who told those gathered that if they failed to turn off their cameras and phones, they would confiscate them. The soldiers then separated out and arrested activists, journalists and volunteers (who were accompanying the refugees on the march), which prevented the ensuing actions of the State officials from being documented. The soldiers allegedly ordered the applicants to board army trucks, and drove them back to the Greek border. Some of the applicants alleged that police officers from the respondent State had been standing guard at the border fence. Others alleged that soldiers had formed two lines and ordered the refugees to run between them. The soldiers had allegedly used sticks to beat the refugees as they ran to the fence. The applicants were ordered to cross the fence to the Greek side of the border. They passed through a hole in the fence or crawled under it. Soon afterwards they returned to the camp in Idomeni, Greece.","10.The applicants submitted video footage of parts of the march and indicated themselves on the videos. The applicants in applications nos.55798\/16 and 55808\/16 also provided copies of their identity documents to facilitate their identification.","11.One of the volunteers in the Idomeni camp, A.R.M., accompanied the migrants during the march. She submitted that the soldiers of North Macedonia had shouted at media representatives to turn off their cameras or they would confiscate them. She further stated that the soldiers had kept their guns pointed at them and, when they had reached the border (she had hidden among the migrants), the soldiers had formed two lines, had made the migrants get into columns, shouting at them to walk quickly, and had guided them between the fences until they had found a hole in them. The migrants had been made to crawl through the hole and under the fence back into Greece.","12.Foreign journalists, volunteers and the other non-migrants accompanying the march had been separated from migrants, identified, fined, expelled, and banned from entering North Macedonia for six months. Two foreign journalists confirmed that their cameras had been confiscated.","13.On 15 March 2016 the Ministry of the Interior of North Macedonia informed the public that there had been an attempted illegal entry of migrants in the vicinity of the village of Moin. It confirmed that about 1,500 migrants had illegally crossed the State border with Greece, and that another group of about 600 people, intending to cross illegally, had also been intercepted at the border. There had been seventy-two foreign journalists with them, who had been secured and issued with travel orders, after which they had returned to Greece. The migrants who had crossed illegally had also been returned.","14.There are nineteen border crossing points and two airports in North Macedonia. The busiest border crossings are Bogorodica in the south, on the border with Greece and close to Idomeni, and Tabanovce in the north, on the border with Serbia.","15.The walking distance between Idomeni and the Bogorodica border crossing is approximately 7.6 km. The walk between the two would take approximately one hour and thirty minutes.","16.On 19 August 2015, because of the increased influx of migrants\/refugees, the Government of North Macedonia declared a crisis situation on part of its territory, more precisely on the territory of Gevgelija (Bogorodica border crossing) and Kumanovo (Tabanovce border crossing). The Parliament later extended the crisis situation until 15 June 2016, and then until 30 June 2017.","17.A report by the Office of the United Nations High Commissioner for Refugees (UNHCR) issued in August 2015 indicated a number of challenges in the implementation of the relevant legislation in North Macedonia, such as a limited capacity of the border officials to identify people with international protection needs, including asylum-seekers, and a lack of interpretation. Between 18 June 2015 and the end of July 2015 the authorities registered 18,750 people as having expressed their intention to seek asylum in the country, with a steady trend of some 1,000 new arrivals every day. The report noted, however, that over 90 per cent of those who had applied for asylum had left the country before the interviews were held.","18.A Human Rights Watch report issued in September 2015 indicated that few asylum-seekers chose to apply for asylum in North Macedonia and those who did so often left the country before a decision on their application had been made.","19.On 3 December 2015 the Ve\u010der newspaper published that in the previous 24hours at the Bogorodica border crossing centre, 2,797 certificates of an expressed intention to seek asylum had been issued to foreign citizens, refugees and migrants.That made a total of 300,420 certificates having been issued \u2013 177,130 to citizens of Syria, 72,752 to citizens of Afghanistan, and 29,100 to citizens of Iraq.","20.The Crisis Management Centre (CMC) issued a report for the period from 19 August to 31 December 2015. The report specified that in the reference period, about 640,000 migrants\/refugees had entered the territory of North Macedonia.The report further noted that between 19 June and 31December 2015, certificates of an expressed intention to apply for asylum had been issued to a total of 388,233 foreign citizens \u2013 216,157 Syrians, 95,691 Afghans, and 54,944 Iraqis (and the rest to various other nationalities). In the same period the Sector for Asylum in the Ministry of the Interior had received eighty-sixasylum applications (fifty-sixfrom Syrians, thirteenfrom Afghans, and three from Iraqis).","21.The CMC report specified that the difference between the number of migrants\/refugees who had entered the State and the number to whom certificates had been issued was due to a large influx of migrants\/refugees on several occasions, where there had been more than 10,000 people entering daily from Greece, and the inability of the Ministry of the Interior to register all of the people because of the limited time during which they should be provided with transit to the northern border.","22.The report also noted, inter alia, that a reception and transit centre for refugees\/migrants had been established and operated in Gevgelija (the closest town to the Bogorodica border crossing), and that a railway line for the transportation of migrants\/refugees from this centre to the northern border at Tabanovce had also been arranged. It also specified that during the crisis situation, Red Cross teams and other domestic and international humanitarian and non-governmental organisations had been present at the centre and had actively participated in the distribution of humanitarian aid and the provision of basic medical services.","23.A report of the Ministry of the Interior indicated that between 1January and 14 March 2016, certificates of an expressed intention to apply for asylum had been issued to another 89,628 migrants \u2013 44,634 Syrians, 26,546 Afghans and 18,337 Iraqis. The report indicated that on 14 March 2016 no certificates had been issued and no asylum applications had been made.","24.Between 1 January and 17 March 2016, 283 applications for asylum were submitted on behalf of 314 persons.","25.On 15 March 2016 the European Commissioner for Migration and Home Affairs called the situation in Idomeni \u201ca tragedy that must not be repeated\u201d. In April 2016 Amnesty International described the conditions in the Idomeni camp as \u201csqualid\u201d and \u201cappalling\u201d, as people had been left to sleep outside of shelters, exposed to bad weather and lacking sufficient sanitary facilities. In May 2016 UNHCR described the conditions as \u201cabysmal\u201d.","26.In March 2016 the European Council on Refugees and Exiles (ECRE) and the International Commission of Jurists (ICJ), in a report to the Council of Europe Committee of Ministers, concluded that persisting obstacles to accessing the asylum procedure in Greece left asylum-seekers at serious risk of deportation without an individual assessment of their risk of being sent to a country where there were substantial grounds for believing that they would be subject to treatment contrary to Articles 2, 3, 5 or 6 of the Convention.","27.The Helsinki Committee for Human Rights in Skopje published information that between 8 and 20 March 2016 not a single certificate of an expression of intention to apply for asylum was issued, and that no refugee was registered between 21 and 27 March 2016. A UNHCR inter-agency operational update for the period between 4 and 31 March 2016 indicated that, according to the Ministry of the Interior, 979 refugees and migrants had crossed the border into North Macedonia in the reporting period, with the final arrivals on 7 March 2016.","28.Between 4 and 17 April 2016, a total of 1449 irregular border crossings in the south of North Macedonia were prevented.","29.Between 9 March and 31 December 2016, 477 people sought asylum, of whom 152 were Syrian nationals, 126 Afghans, and 60 Iraqis. In 2016 five people were granted asylum, one person was granted refugee status, eleven asylum requests were refused, and for 460 other requests the proceedings have been discontinued as the people who had submitted the requests had left the place where they were staying and had not attended the interview."],"273":["2.The applicant was born in 1941 and lives in Kv\u00e6rndrup. He was represented by Mr Jonas Christoffersen, a lawyer practising in Copenhagen.","3.The Danish Government (\u201cthe Government\u201d) were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their Co\u2011Agent, Ms Nina Holst\u2011Christensen, from the Ministry of Justice.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The applicant worked as a physician until 2010.","6.Around 2015, he founded an association called \u201cPhysicians in Favour of Euthanasia\u201d (L\u00e6ger for Aktiv D\u00f8dshj\u00e6lp), for physicians aiming to have euthanasia made lawful in Denmark. In pursuance of this aim, the applicant prepared a guide \u201cMedicines suited for suicide\u201d (L\u00e6gemidler der er velegnede til selvmord), available on the internet. The guide combined a detailed procedure for how to commit suicide, including a list of about 300 common pharmaceuticals suited to committing suicide, and a description of the dose required to go through with the suicide, possible combinations of pharmaceuticals and caveats about the various pharmaceuticals. The guide also provided advice on how a person could be assured of death by taking the recommended doses of medicines, including by combining different pharmaceuticals or by taking a full dose of a pharmaceutical in combination with a plastic bag over the head and a rubber band around the neck.","7.It was lawful under Danish law to publish such a guide on the Internet or elsewhere.","8.On the basis of a radio interview with the applicant in February 2017 in which he stated, inter alia, that he had assisted a patient with a terminal pulmonary condition in dying by administering the pharmaceutical Fenemal, the Patient Safety Authority (Styrelsen for Patientsikkerhed) reported the applicant to the police for violation of section 240 of the Penal Code, prohibiting assisted suicide. Moreover, on 3 March 2017 it withdrew the applicant\u2019s doctor\u2019s licence to practise, with the consequence, among other things, that the applicant could no longer prescribe medications for himself or others.","9.Subsequently, the applicant was charged with two counts of assisted suicide and one count of attempt.","10.By a judgment of 26 September 2018, the District Court of Svendborg (Retten i Svendborg) convicted the applicant of one count of assisted suicide and one count of attempt. He was sentenced to 40 days\u2019 imprisonment, suspended.","11.On appeal to the High Court of Eastern Denmark (\u00d8stre Landsret), by a judgment of 30 January 2019 the applicant was convicted of all three counts and sentenced to 60 days\u2019 imprisonment, suspended.","12.On appeal to the Supreme Court (H\u00f8jesteret), on 23 September 2019 the High Court judgment was upheld.","13.More concretely, in respect of count 1) the applicant was convicted of attempted assisted suicide committed on 23 March 2017, having together with a co-defendant prescribed medications for A, who wanted to commit suicide. The suicide attempt had failed. The applicant stated that A had contacted him and told him that he suffered from neurological diseases. The applicant had spoken to A several times on the telephone, and they had also communicated by email. The applicant had asked the co-defendant to prescribe Fenemal for A; the applicant had known that A would use the medication to commit suicide. The co-defendant confirmed the correctness of this statement and explained that he had been contacted by the applicant, who had asked him to prescribe Fenemal for A as the applicant could not prescribe any medications himself because his doctor\u2019s licence to practise had been withdrawn. A confirmed that he had been in contact with the applicant, who had helped him obtain the required medication. Since his attempted suicide, A had received medications for his physical pain and his anxiety, and his condition had therefore improved.","14.In respect of count 2) the applicant was convicted of assisted suicide committed in the spring of 2017, having prior to B\u2019s death dispensed a dose of Fenemal to him, knowing full well that it was intended for his suicide. B had become paralysed in most of his body following a stroke; he no longer found life worth living and wanted to die. The applicant stated that he had visited B and advised him how to commit suicide in accordance with the guide that he had uploaded to the Internet. Subsequently, he had discussed with another person whether it was possible to procure pills for B, but he did not know whether that person had ever supplied the pills. The applicant had not himself provided any medication for B. According to the statement given by B\u2019s former wife, B had tried to be allowed to go to Switzerland for euthanasia. However, no psychiatrists would issue a medical certificate saying that B was mentally prepared, as required by the Swiss authorities. B\u2019s former wife had then contacted the applicant asking him to help B. They had met with the applicant, who had indicated that he could establish contact with someone who could procure the medication. Subsequently, B\u2019s former wife had received a supply for B, which she handed over to B, who had later stated that he now had what he needed. In May 2017, the family had had a farewell dinner with B, and the next day B\u2019s former wife had received a telephone call from the nursing home and been told that B was fast asleep and that it was not possible to waken him up. B had passed away a couple of days later.","15.In respect of count 3), the applicant was convicted of assisted suicide, committed between 17 July and 6 August 2018. C was 85 years old. She suffered from many infirmities but was not seriously ill. She wished to end her life and had procured the necessary pills herself. On 17 July 2018, she had contacted the applicant by email and asked for his assistance. The applicant and C had exchanged at least nine emails between 17 July 2018 and 8August 2018. On 19 July 2018 the applicant had asked C which medication she had procured. On 27 July 2018 the applicant had confirmed that the medications at her disposal were excellent and also recommended that she look at the general guide on how to commit suicide, which was available on the website of the network. On 29 July 2018 he was helping her finding the general guide. On 6 August 2018 he confirmed that it was a good idea to combine the medication with a plastic bag over her head, in which connection he had written: \u201cIf you are able to go through with it, you will be 100% certain. Remember in that case that it is necessary to put a rubber band around the neck.\u201d On 10 August 2018, C had been found dead in her bed with a plastic bag over her head.","16.In its judgment of 23 September 2019, the Supreme Court stated:","\u201cLiability for assisted suicide or attempts at assisted suicide","By the High Court judgment, [the applicant] was found guilty on two counts of violation of section 240 of the Penal Code for assisted suicide and one count of an attempt at assisted suicide. This case concerns whether, according to the findings of fact of the High Court, the acts performed by [the applicant] as described in the three counts are punishable because they are considered assistance as set out in the provision, and whether the conditions for imposing a sentence for the attempt have been met. In that case, there is also the issue of the length of the sentence.","It is a punishable offence under section 240 of the Penal Code to assist another person in ending his or her life, but it is not a punishable offence to attempt to take one\u2019s own life. Accordingly, this provision independently criminalises assisted suicide. The Supreme Court finds that it will be determined based on an interpretation of this provision what kinds of assistance fall within the scope of the liability, for which reason it is not possible simply to use as a basis those kinds of complicity that are punishable under the general rule of law set out in section 23 of the Penal Code as complicity in offences. Minor assistance may fall outside the scope of criminal offences under section 240.","As regards count 2), [the applicant] has been found guilty of violation of section 240 of the Penal Code because he procured medications for B prior to B\u2019s death on 7 May 2017, knowing full well that the medications were intended for his suicide. As regards count 1), [the applicant] has been found guilty of attempted violation of section 240 because he procured medications for A, knowing full well that the medications were intended for A\u2019s suicide, which suicide failed, however.","The Supreme Court concurs in the finding that [the applicant\u2019s] acts as described in count 1) and count 2) are punishable as assisted suicide as set out in section 240 of the Penal Code. As regards count 1), the Supreme Court concurs in the finding that the conditions for sentencing someone for an attempt have been met as the maximum penalty under section 240 of a fine or imprisonment for a term not exceeding three years makes it possible to sanction attempts, see section 21(3) of the Penal Code. [The applicant\u2019s] submission concerning the legislative history of section 240 cannot lead to a different conclusion.","As regards count 3), [the applicant] has been found guilty of having in emails exchanged with C advised her about suicide methods, including by confirming the choice of medications and by confirming that it was a good idea to combine them with a plastic bag and by writing, \u2018If you are able to go through with it, you will be 100% certain. Remember in that case that it is necessary to put a rubber band around the neck.\u2019 Thereby, he assisted her in committing suicide by taking medicines and putting a plastic bag over her head and closing it with a rubber band.","Opinion of three judges ... concerning count 3):","We concur in the finding that by giving advice in his email exchange with C, [the applicant] assisted her in a specific and significant way in committing suicide, and that the advice is not exempt from punishment due to the circumstance that his advice was based on a general guide that had lawfully been uploaded to the website of \u2018Physicians in Favour of Euthanasia\u2019. In this context, we have also taken into account that the specific advice offered by [the applicant] to C was suited to a greater extent than the general guide to intensifying her desire to commit suicide. In our opinion, there is no basis for finding that it would be contrary to Article 10 of the European Convention on Human Rights to convict the defendant on this count.","Opinion of [two] judges ... concerning count 3):","It appears from the case file that C contacted [the applicant] in July 2018 and indicated in her emails that she was 85 years old and suffered from many infirmities, that she wished to end soon and that things had been clarified with her close family. She had procured the necessary pills, and her intention was also to combine them with a plastic bag. She was very frightened of the potential risk that she would fail, and she was nervous as to whether she would be able to go through with it on her own. [The applicant] then passed on information from the lawful guide on the website, but he did not pass on any information not already available from the website. He neither advocated nor encouraged her to commit suicide. In these circumstances, we find that the information given by [the applicant] to C was not of such a nature that the information can independently be considered to constitute a punishable act of assistance in her ending her life. Accordingly, we find that [the applicant] must be acquitted on this count of violation of section 240 of the Penal Code, which must also be considered to accord best with Article 10 of the European Convention on Human Rights on the right to receive and give information, see in this respect the judgment delivered on 29October 1992 by the European Court of Human Rights in cases 14234\/88 and 14235\/88, Open Door and Dublin Well Woman v. Ireland.\u201d","17.The Supreme Court, by a majority of three judges, sentenced the applicant to 60 days\u2019 imprisonment, suspended. It was taken into account as an aggravating circumstance that to a certain extent the acts were committed in a systematic manner and that the applicant had been charged on three counts, the last act being committed after he had been provisionally charged by the police for violation of section 240 of the Penal Code. It was considered a mitigating circumstance that the applicant was almost 78 years old. The minority of two judges found that the applicant should have a suspended sentence of imprisonment for a term of 30 days, since count 1) was merely an attempt and under count 3) he had not assisted to a significant extent. Moreover, the minority of the judges found that the acts had not been committed in a systematic manner."],"274":["2.The applicant was born in 1988 and lives in Slatina. He was represented first by Ms L. Ku\u0161an, a lawyer practising in Ivani\u0107 Grad, and then by MsN.Owens, a lawyer practising in Zagreb.","3.The Government were represented by their Agent, Ms \u0160. Sta\u017enik.","4.The facts of the case may be summarised as follows.","5.On 21 November 2012 the Slatina Social Welfare Centre instituted proceedings before the Slatina Municipal Court (Op\u0107inski sud u Slatini) to deprive the applicant of his legal capacity (li\u0161enje poslovne sposobnosti).","6.On 30 November 2012 the Social Welfare Centre appointed, of its own motion, the applicant\u2019s mother to act as his guardian ad litem in the proceedings.","7.By a decision of 5 March 2013, the Municipal Court deprived the applicant of his legal capacity. It found that he suffered from a permanent mild to moderate intellectual disability and was therefore unable to take care of his rights and interests. It was also stated in the decision that the applicant\u2019s monthly income consisted of 1,250 Croatian kunas (HRK) in disability benefits, which was approximately 164 euros (EUR) at the time.","8.On 2 April 2013 the applicant, represented by an advocate, lodged an appeal against that decision. He argued, inter alia, that the decision was in breach of his rights guaranteed by Article 8 of the Convention.","9.By a decision of 23 January 2014, the Bjelovar County Court (\u017dupanijski sud u Bjelovaru) dismissed the applicant\u2019s appeal and upheld the first-instance decision.","10.On 19 March 2014 the applicant, represented by his advocate, lodged a constitutional complaint challenging the civil courts\u2019 decisions. He alleged that they were in breach of his constitutional and Convention rights to a fair hearing and to respect for his private and family life. He also relied on the Court\u2019s case-law. He enclosed copies of the contested first- and second\u2011instance decisions with the constitutional complaint.","11.In his constitutional complaint the applicant also sought reimbursement of his costs of legal representation before the Constitutional Court, amounting to HRK 6,250, approximately EUR 815 at the time.","12.By a decision of 20 May 2015, the Constitutional Court allowed the applicant\u2019s complaint, finding a violation of his right to respect for his private and family life, and quashed the civil courts\u2019 decisions. However, it dismissed his claim for reimbursement of his costs, referring to section23 of the Constitutional Court Act, which provides that, unless the court decides otherwise, each participant in proceedings before it has to bear its own costs (see paragraph 15 below). The relevant part of the Constitutional Court\u2019s decision reads:","\u201cAs regards the claim for the costs of the proceedings before the Constitutional Court, [the court] points out that under section 23 of the Constitutional Court Act, each participant in Constitutional Court proceedings has to bear its own costs, unless the Constitutional Court decides otherwise. Since, in the present case, the Constitutional Court did not decide otherwise, the complainant shall bear his own costs.\u201d","13.In resumed proceedings, by a decision of 29 September 2015 the Virovitica Municipal Court (Op\u0107inski sud u Virovitici) dismissed the Social Welfare Centre\u2019s request to deprive the applicant of his legal capacity. As regards the costs of the proceedings, the court noted that the applicant had not asked for their reimbursement. It therefore decided that that each party should bear its own costs.","14.In the absence of an appeal, that decision became final on 12November 2015."],"275":["2.The applicant was born in 1978 and lives in Riga. The applicant was represented by Mr R.Arthur, a lawyer practising in Bristol, UK.","3.The Government were represented by their Agent, Ms K. L\u012bce.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","THE CIRCUMSTANCES OF THE CASE","5.In 2005 the applicant started working as an air traffic control officer (hereinafter \u201cATCO\u201d) for a State-owned joint stock company, Latvijas Gaisa Satiksme (hereinafter \u201cLGS\u201d), which is overseen by the Ministry of Transport. In 2010 she also undertook ATCO instructor duties.","6.On 3 May 2011 the applicant was presented with a revised job description, which she signed, adding a note that read: \u201cI have acquainted myself [with the job description] but do not agree\u201d (Iepazinos, bet nepiekr\u012btu). The subject of the disagreement concerned the regulation of the allocation of seniority grades following longer periods of absence, such as maternity leave. The matter was discussed with the applicant\u2019s manager. The applicant signed the revised job description on 29 June 2012, after the matter had resurfaced during the internal investigation (see paragraph 21 below).","7.On 27 October 2011 the Latvian Air Traffic Controllers\u2019 Trade Union (hereinafter \u201cthe Trade Union\u201d), was established and the applicant became the chairperson of its board. According to the Trade Union\u2019s Statute and the information entered in the Enterprise Register, the chairperson of the Trade Union board had the right to represent the Trade Union individually.","8.On 7 November 2011 the Trade Union sought clarification from the LGS board about a recent order concerning the ATCO instructors\u2019 work schedules with respect to their training duties. LGS responded that ATCO training was supposed to be carried out outside normal work shifts \u2013 it would be regarded as additional work and would be paid separately. In subsequent correspondence the Trade Union insisted that ATCO instructors\u2019 training work was not being recorded and that those ATCO instructors were hence not being paid for such work. It emphasised the negative impact of such a situation, including potentially negative effects on flight safety. This correspondence was signed by the applicant in her capacity as the chairperson of the Trade Union board.","9.On 14 February 2012 the Trade Union held a board meeting. The minutes of the meeting, which were signed by all three Trade Union board members, stated:","\u201cIt has been decided to write a complaint in the name of the Trade Union to LGS\u2019s [sole] shareholder and to the Minister of Transport, as the board sees no other way of rectifying the working procedures of the instructors. In the view of the Trade Union board, the LGS board does not have the necessary knowledge and expertise to comprehend the problem of the poor organisation of the ATCO instructors\u2019 work and to take the appropriate decision to resolve the problem. The complaint should also address other relevant problematic issues.\u201d","10.The above-mentioned complaint, formulated in a letter dated 2March 2012, was addressed to the Minister of Transport and the person representing the State as the sole shareholder of LGS. It was drawn up on the letterhead of the Trade Union; its text used formulations like \u201cthe Trade Union announces\u201d, \u201cwe, the air traffic control officers\u201d; and it was signed by the applicant next to the words: \u201cIn the name of the Latvian Air Traffic Controllers\u2019 Trade Union, chairperson of the board\u201d.","11.The letter asserted that the LGS board did not comply with the requirements set out by the relevant laws, was infringing the legal rights of the LGS employees, and was mismanaging the company\u2019s funds. The letter then stated:","\u201cEven though the Trade Union has repeatedly attempted to find a constructive solution through negotiations, the situation has become unmanageable [k\u013cuvusi nevald\u0101ma] and seriously endangers both the quality of the provision of aeronavigation services [aeronavig\u0101cijas pakalpojumu nodro\u0161in\u0101\u0161anas kvalit\u0101ti] and LGS\u2019s ability to grow and compete in the international market.\u201d","The letter then recounted the history of unsuccessful negotiations and collective bargaining attempts, emphasising an alleged lack of cooperation and withholding of information on the part of the LGS board.","12.The letter continued by describing the problems regarding the ATCO training. The introductory part of this section read:","\u201cWe also wish to draw your attention to other problematic issues that have not been resolved for a long time and could in the near future affect not only the sustainability of the enterprise, but also, unfortunately, flight safety in Latvian airspace. [ATCOs], and hence also the Trade Union, are very concerned in this regard and consider it to be their duty to inform higher State officials and authorities [of their concerns], so that the above-mentioned issue regarding a deterioration in flight safety and a lowering of the sustainability of the enterprise might be prevented.\u201d","13.The letter then relayed the information that LGS had ordered ATCO instructors to train ATCO trainees outside their scheduled working hours. This training time was not recorded and the ATCO instructors were not paid for such work. Aside from being contrary to the labour laws, this practice harmed morale, hampered possibilities to upgrade qualifications, negatively impacted the training process, and caused disappointment among ATCO trainees who had been forced (without any proper explanation) to take unpaid leave. That increased the risk that LGS would lose those employees. According to the letter, all the above-noted factors would affect flight safety in future.","14.The letter then addressed numerous other problems concerning the organisation of ATCOs\u2019 work, such as: discrimination with respect to the payment of bonuses (that is to say of all LGS\u2019s employees the ATCOs received the lowest bonuses); failure to pay monthly allowances that had been agreed upon; failure to include ATCOs in the \u201chigh-risk\u201d employee category in the light of the continuous stress that they faced; failure to categorise ATCOs working during the night time as night workers; a violation of the collective agreement by failing to insure ATCOs against the loss of their licences; failure to pay extra for carrying out the work of an absent colleague; and paying ATCOs only 75% of their agreed salary for two years following their acquisition of their permanent ATCO licences.","15.The letter next identified specific payments that were regarded as constituting the mismanagement of funds. It also stressed the fact that the ATCOs working for LGS were among the lowest paid in Europe and that owing to problems within LGS four very experienced ATCOs had resigned. This part of the letter included the following passages:","\u201cEverything we have mentioned in this letter points to a serious risk to the enterprise and to the aeronavigation sector in Latvia.\u201d","\u201cIf the situation within the enterprise does not change, this trend [of resignations] will not only continue but will get worse. However, if the goal of the [LGS] board is to lead the enterprise to a state in which it is unable to ensure safe air traffic navigation services, thereby endangering the existence of the enterprise, this could be attained in the not so distant future.\u201d","16.In conclusion, the Trade Union noted that these issues were of societal importance and that the LGS employees were prepared to discuss them publicly and, if need be, to organise strike action and to appeal to international organisations. The Trade Union then called for the LGS board to be removed.","17.On 9 March 2012 nineteen ATCOs, some of whom were not members of the Trade Union, wrote a letter to LGS distancing themselves from the Trade Union\u2019s letter of 2 March 2012. In the subsequent civil proceedings one of the signatories testified that they had been ordered to sign the letter of 9March 2012 under the threat of suspension (see paragraph31 below).","18.On 15 March 2012, in response to an enquiry made by LGS, the Civil Aviation Agency expressed concerns about the Trade Union\u2019s \u201cextreme pronouncements\u201d regarding flight security. It advised LGS to assess whether the ATCOs whose statements had \u201ccontained threats about lowering the level of flight security\u201d had complied with their terms of employment. As to LGS\u2019s refusal to conclude agreements with ATCO instructors regarding their training duties, it noted that LGS was acting correctly, as it was \u201censuring the allowed amount of monthly hours\u201d. The Trade Union had not raised the issues that were of concern to them through the proper channels, as the Civil Aviation Agency had received no reports of \u201cbreaches in ATCOs\u2019 employment\u201d.","19.The Trade Union members in written statements addressed to the Trade Union reported that on the following day the LGS board summoned all the ATCOs who were at work that day to attend a meeting concerning the letter of 2March 2012. The chairperson of the LGS board, D.T., emphasised that he had strong political support and asked everyone to sign a letter, addressed to him, certifying that ATCOs worked in compliance with the domestic and international legal instruments.","20.The Trade Union members also wrote statements of further meetings between the LGS board and the members of the Trade Union that were organised on 19, 20 and 22March 2012. They submitted that D.T. had repeatedly emphasised that he had strong political support and asked the Trade Union members to sign statements attesting that they were ensuring that flight safety was maintained. It was indicated that signing them would be interpreted as compliance with the requirements of the post, whereas a refusal to sign would trigger an investigation and possibly suspension from duties. In addition, D.T. repeatedly asserted that the applicant was \u201cinadequate\u201d, that it was not possible to communicate with her, and that she was not capable of leading the Trade Union. He suggested that the applicant be removed as the Trade Union representative and be replaced with a more \u201cadequate\u201d person.","21.On 23 March 2012 LGS commenced an internal investigation with the stated purpose of establishing whether the dissemination of the statements about the potential threats to flight safety had been lawful. During the investigation, the applicant\u2019s failure to sign the job description (see paragraph6 above) was also reviewed. The applicant was suspended from her post for the period of the investigation. Her average salary was maintained, but she was prohibited from entering the premises of LGS.","22.On the same day, the Trade Union members gathered for a spontaneous meeting with the LGS board, requesting an explanation for the applicant\u2019s suspension and the fact that only one person was being held responsible for a letter that had been sent in the name of the Trade Union. According to written statements by the Trade Union members, D.T. responded that the applicant would merely need to provide some explanations, as she had been the one who had signed the letter. Additionally, her representing the Trade Union was senseless, and her goals did not correspond with those of the Trade Union\u2019s members. D.T. also warned against trying to obtain any help from \u201coutside\u201d. All issues had to be resolved within LGS, and letters such as this only harmed the Trade Union\u2019s members.","23.On 27 March 2012 fifty-one ATCOs wrote a letter to D.T. expressing their support for the applicant. They requested that the applicant be reinstated in her post and called it unacceptable to confuse the applicant\u2019s Trade Union activities with her direct duties at work. On 15 June 2012 forty-seven ATCOs wrote a letter to the Prime Minister in which they affirmed the continuance of the problems highlighted in the Trade Union\u2019s letter of 2March 2012. They also expressed their indignation about the retaliatory measures directed against the applicant.","24.On 30 March 2012 the Civil Aviation Agency ordered the applicant to undergo an evaluation of her neuropsychological state and on 14April 2012 ordered an evaluation of her mental health. Both examinations confirmed that the applicant was healthy. On 28 April 2012 LGS lodged a complaint with the Security Police \u2013 the State\u2019s counterintelligence and internal security service \u2013 concerning \u201cthe potential threat to flight safety in view of the Trade Union\u2019s complaint\u201d. On 18June 2012, the Security Police responded that the conflict in question constituted a labour dispute and that there were therefore no grounds to examine it under the Criminal Procedure Law.","25.On 11 May 2012 the internal investigation was completed, with the investigation commission suggesting that the applicant be dismissed. The LGS board revoked the applicant\u2019s salary and asked the Trade Union to agree to the applicant\u2019s dismissal; the Trade Union refused.","26.In June 2012 the Latvian Federation of Aviation Trade Unions organised talks aimed at achieving a friendly settlement. LGS insisted that the applicant or the Trade Union write a letter to the Ministry of Transport stating that the threats outlined in the letter of 2March 2012 no longer existed. The applicant and the Latvian Federation of Aviation Trade Unions considered this condition unacceptable.","27.On 26 June 2012, following the expiry of the maximum period for which she could be suspended, LGS reinstated the applicant in her position while simultaneously ordering her to \u201cstand idle\u201d \u2013 that is to say to be present at the workplace every day without carrying out her direct employment duties. During that period the applicant was to receive her average wage. However, from 14 December 2012 the applicant was again refused entry to the premises of LGS and from 11 March 2013 the payment of her salary was terminated.","28.Over this time period LGS management demanded explanations from colleagues of the applicant who had congratulated her on her birthday or had otherwise manifested a favourable attitude towards her (for example, by giving her a lift or taking a photograph of themselves together), as confirmed by witness statements during the civil proceedings.","29.On 23 April 2012 the applicant brought civil proceedings against LGS, challenging her suspension and seeking reinstatement. In a subsequent addendum she lodged additional claims regarding, inter alia, the order for her to stand idle, the discrimination against her on the basis of her trade union activities, and the interference in the work of the Trade Union.","30.At the first hearing LGS lodged a counterclaim seeking the termination of the applicant\u2019s employment. That hearing was adjourned. At the next hearing LGS requested that the case be examined in closed proceedings, as the case called for an assessment of information about the security of Latvian airspace, and misinterpreted facts had already reached the public, fuelling undesirable speculation about threats to flight safety. The applicant\u2019s representative objected, as the case did not concern any classified information. The court granted LGS\u2019s request on the grounds that this would allow for a \u201cmore efficient and successful administration of justice\u201d.","31.During the proceedings several ATCO instructors testified that they had to carry out their training duties in their free time (that is to say outside their work shifts). They spoke of the fatigue that this arrangement caused to them and to the ATCO trainees. They also testified about the pressure placed on them by the LGS management to sign statements attesting that there existed no threat to flight safety, and to distance themselves from the Trade Union\u2019s letter of 2 March 2012. One of the signatories of the letter of 9March 2012 testified that they had been told to sign that letter under the threat of suspension. She agreed with the text of that letter in so far as it stated that ATCOs were not endangering flight safety. The applicant\u2019s superiors at LGS and a witness from the Civil Aviation Agency testified that the applicant was a highly qualified employee and that they had no information about her committing any infringements at work.","32.On 11 March 2013 the Riga City Kurzeme District Court dismissed all the applicant\u2019s claims and upheld LGS\u2019s counterclaim seeking the termination of her employment. The summary judgment was pronounced in a closed hearing; the full text was made available to the parties on 21March 2013.","33.The court found that the applicant\u2019s suspension and the requirement that she stand idle had been justified under section34 of the Law on Aviation (see paragraph51 below). With her statements about the risks to flight safety \u2013 which had been inextricably linked with her performance of her ATCO duties \u2013 the applicant had created an emergency requiring extraordinary measures. The applicant had not reported threats to flight security to the relevant institutions and had not used the opportunity, offered during the friendly-settlement negotiations, to \u201cretract her conviction\u201d about a threat to flight safety. A professionally substantiated opinion had to be distinguished from an \u201cideological conviction\u201d, which the applicant had expressed merely for the sake of it (p\u0101rliec\u012bbas pau\u0161ana p\u0101rliec\u012bbas d\u0113\u013c), and it was inappropriate to invoke human rights in this instance. The applicant\u2019s conduct could have caused the employer to be concerned that she might be unpredictable in the performance of her professional duties.","34.As regards the applicant\u2019s discrimination claim, the court found that a suspension based on the performance of employment duties could not be perceived as constituting a difference in treatment. The circumstances meriting the applicant\u2019s suspension pertained only to her. The applicant had submitted no evidence that LGS had interfered with the exercise of her trade union rights. The applicant\u2019s suspension had had no impact on her ability to represent employees. The allegation that LGS had interfered with the work of the Trade Union could not be assessed, as the applicant\u2019s claim had been lodged only in the name of the applicant.","35.LGS\u2019s counterclaim seeking the termination of the applicant\u2019s employment was based on the assertion that she, when performing her work, had acted unlawfully and had thereby lost the employer\u2019s trust (section101(1)(2) of the Labour Law \u2013 see paragraph48 below). The court considered that the applicant had indeed acted unlawfully in two respects. Firstly, she had performed her employment duties without having accepted the revised job description. By adding a note expressing her disagreement with the revised job description (see paragraph6 above) the applicant had indicated her intention not to comply with the normative acts regulating air traffic. Accordingly, the applicant had been unpredictable in her function as an ATCO, and it had been impossible to foresee whether she might significantly endanger flight safety. For that reason, the applicant had been prohibited, under section34(1)(2) of the Law on Aviation, from carrying out her functions (see paragraph 51 below).","36.Secondly, the applicant had acted unlawfully by knowingly disseminating untruthful information about her employer. It could not be established that the letter of 2 March 2012 had been based on a decision by the Trade Union\u2019s General Assembly or that it reflected the majority opinion of its members. Some ATCOs had distanced themselves from the letter (see paragraph17 above), and the other board members had not authorised the applicant to sign Trade Union letters individually. Referring to three subsequent Trade Union letters (including the letter to the Prime Minister expressing support for the applicant (see paragraph23 above) and the letter refusing consent to the applicant\u2019s dismissal (see paragraph21 above)), the court concluded that Trade Union\u2019s letters were usually signed by at least two board members or by a large number of its members. It followed that in the letter of 2 March 2012 the applicant had expressed her personal opinions and had been acting in her capacity as an ATCO, instead of in her capacity as the Trade Union representative.","37.As to the truthfulness of the disseminated information, the court considered that the applicant had made allegations about threats to flight safety. Referring to testimony given by LGS employees asserting that there no danger was posed to flight safety, written statements from ATCOs that they were ensuring flight safety, and documents from the Civil Aviation Agency and other evidence attesting, in general terms, that aeronavigation was safe, the court concluded that the applicant\u2019s allegations had not been confirmed. The witness testimony concerning the organisation of working time (see paragraph31 above) was not mentioned in the judgment.","38.The court furthermore noted that the applicant had \u201cmade serious threats with respect to the quality of the performance of her direct employment duties\u201d. Moreover, contrary to the procedure prescribed by law, the applicant had not reported the existence of any risks. According to the assertion that the applicant had made in her letter, ATCOs had acted in breach of section34(2) of the Law on Aviation by performing their duties while tired and without reporting their tired state to their management. If the applicant considered that there had been threats to flight safety, she had been duty bound to stop performing her employment duties. Instead, for the purpose of creating a scandal, the applicant had disseminated an \u201cuntruthful opinion\u201d, thereby harming her employer\u2019s interests and damaging its reputation. The applicant had been loyal to her profession but not to the enterprise that she had worked for. The fact that the applicant had written the complaint to the Ministry of Transport, without first discussing the issues in question with her employer, indicated that the applicant had been merely interested in discrediting LGS. The applicant had knowingly disseminated to third parties untruthful information about threats to flight safety with the goal of securing socio-economic benefits for herself. Given those circumstances, the employer could justifiably have lost its trust in the applicant.","39.On 8 April 2013 the applicant lodged an appeal with the Riga Regional Court. The Free Trade Union Confederation of Latvia requested that the case be examined in a public hearing. LGS requested a closed hearing on the grounds that the case concerned rules governing the security of airspace and the possible violations of those rules. The appellate court granted LGS\u2019s request, referring to section11(3)(1) of the Civil Procedure Law, which allows the exclusion of the public from a courtroom for the protection of State or commercial secrets. During the appeal hearing a picket organised by the Latvian Federation of Aviation Trade Unions was held outside the courthouse with the participation of members of the Free Trade Union Confederation of Latvia and the Lithuanian trade union Solidarumas.","40.In its judgment of 20 June 2013, the operative part of which was pronounced publicly, the Riga Regional Court endorsed the findings and the reasoning of the first-instance court. It added that there was no doubt that the applicant had signed the letter of 2March 2012 herself; hence, her objection to the fact that engaging in a trade union activity had been deemed to constitute a personal action on her part was unfounded. It would have been unacceptable to prevent the employer from taking measures against the applicant merely on the grounds that the letter stated that it had been written in the name of the Trade Union. Employees\u2019 material or social guarantees could not be invoked as grounds for not complying with direct employment duties.","41.The appeal court considered it immaterial that the ATCOs who had distanced themselves from the letter of 2March 2012 had not been members of the Trade Union (see paragraph 17 above). Their letter of 9March 2012 had confirmed that ATCOs\u2019 professional training and experience ensured the necessary level of flight safety. The applicant\u2019s argument that ATCOs had been intimidated into signing that letter under the threat of suspension was unfounded, as the witness had testified that she had never endangered air traffic (see paragraph31 above). No evidence had been adduced confirming that flight security was endangered or that the situation in LGS was out of control. The appeal court upheld the first-instance court\u2019s finding that the applicant had \u201cmade serious threats with respect to the quality of the performance of her direct employment duties\u201d and had disseminated an \u201cuntruthful opinion\u201d with the goal of destabilising LGS and securing socio\u2011economic benefits for herself.","42.On 5 August 2013 the applicant lodged an appeal on points of law. On 28February 2014, after examining the case in written proceedings, the Supreme Court upheld the judgment of the Riga Regional Court. With respect to the applicant\u2019s argument that her statements had not contained any threats, the Supreme Court responded that the question of whether or not the applicant had made a threat could not be understood merely as her having threatened not to fulfil duties with regard to flight safety but also as her having made statements that the institution carrying out such tasks was not capable of functioning and, hence, that Latvian airspace was not safe.","43.On 10 January 2012 an internal audit of LGS identified nine areas of non-compliance with regulations in the field of air traffic control, including the training of ATCOs. It also concluded that the internal bodies of LGS had disagreements regarding their respective areas of responsibility, and that the applicable legal instruments and the internal mechanism for resolving such differences were not functioning.","44.On 24 May 2012 the European Transport Workers\u2019 Federation wrote to the Prime Minister that the actions of LGS had contravened EUDirective2003\/42\/EC on occurrence reporting in civil aviation, as well as the Law on Trade Unions and the Labour Law. It requested the Prime Minister to halt the disciplinary investigation against the applicant and to revoke her suspension. On 11 April 2013 it wrote to the LGS board that the treatment of the applicant, as well as that of the other employees who had been intimidated into signing various statements, had been incompatible with trade union freedoms and autonomy and had contravened International Labour Organisation (ILO) Convention No.135. On 22April 2013 the Latvian Federation of Aviation Trade Unions expressed similar concerns to the LGS board.","45.On 17 January 2013 the International Federation of Air Traffic Controllers\u2019 Associations wrote a letter to the Prime Minister, the Minister of Transport, the Civil Aviation Agency, and the LGS board expressing serious concerns about compliance with the principles of a \u201cjust culture\u201d in the light of the treatment of individual ATCOs who had raised safety concerns. On 14March 2014 the International Transport Workers\u2019 Federation and the European Transport Workers\u2019 Federation wrote a joint letter to the President of Latvia expressing grave concerns about the ruling of the first-instance court and, notably, its anti-union bias. They emphasised the fact that the complaint of 2 March 2012 had been sent by the applicant as the chairperson of the board of, and on behalf of, the Trade Union. It had raised problematic issues within LGS relating to social dialogue and the main issues highlighted had concerned training, rest times and fatigue. The ruling contradicted the principles of freedom of association and the legal protection of trade union representatives, as well as ILO Conventions No.87,98,and135 and EUDirective2003\/42\/EC.","46.On 1 February 2013 the applicant was re-elected as the chairperson of the Trade Union board.","47.On 27 June 2014 the State Labour Inspectorate concluded that LGS had committed an administrative offence by not complying with the Labour Law in respect of overtime work \u2013 inter alia, by exceeding the lawful limits for ATCO overtime work and by failing to properly record employees\u2019 working hours."],"276":["2.The applicants were represented by a legal team led by DrPetrMuzny, professor of law at the University of Geneva, Switzerland.","3.The Government were initially represented by MrM. Galperin, the then Representative of the Russian Federation to the European Court of Human Rights, and later by MrM. Vinogradov, his successor in this office.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.Jehovah\u2019s Witnesses have been present in Russia since 1891. They were banned after the Bolshevik Revolution in 1917 and criminally prosecuted for practising their faith in the USSR.","6.After the USSR Freedom of Conscience and Religious Organisations Act was enacted in 1990, the RSFSR Ministry of Justice registered the Administrative Centre of the Religious Organisations of Jehovah\u2019s Witnesses in the USSR. On 29April 1999 that national religious entity was re-registered as the Administrative Centre of Jehovah\u2019s Witnesses in Russia (\u201cthe Administrative Centre\u201d), under Russia\u2019s new Religions Act.","7.In order to carry out their religious worship and practice throughout Russia, religious associations of Jehovah\u2019s Witnesses were formed into groups or communities, called \u201ccongregations\u201d. They operated under the authority of the Administrative Centre, an umbrella organisation for the Russian Jehovah\u2019s Witnesses. There were approximately 400 local congregations and 175,000 individual Jehovah\u2019s Witnesses in Russia. Their places of worship were known as \u201cKingdom Halls\u201d.","8.In January 2007 a deputy Prosecutor General sent out a circular letter to regional prosecutors, asserting that Jehovah\u2019s Witnesses represented a public threat:","\u201cVarious branches of foreign religious and charitable organisations operate in Russia, whose activities do not formally violate the provisions of Russian law but quite often contribute to the escalation of tensions in society. Representatives of foreign religious associations (Jehovah\u2019s Witnesses, Unification Church, Church of Scientology, etc.), followers of various Oriental beliefs, and followers of Satanism form branches that frequently carry out activities harmful to the moral, mental, and physical health of their members.\u201d","He directed subordinate prosecutors as follows:","\u201cTo check whether territorial bodies of the [telecoms regulator Roskomnadzor] ... properly execute their legal duty to uncover extremist material in the media belonging to religious associations (Church of Scientology, Jehovah\u2019s Witnesses, and other religious organisations that have their own printing facilities).\u201d","9.The first applicant, the Taganrog local religious organisation of Jehovah\u2019s Witnesses (the \u201cTaganrog LRO\u201d), was originally registered in 1992 as an independent religious association. In 1998 it was re-registered as a local religious organisation operating within the structure of the Administrative Centre (the second applicant). The third and fourth applicants are the German and US publishers of Jehovah\u2019s Witnesses religious literature. The fifth to sixteenth applicants are twelve congregations in Taganrog which shared the Kingdom Hall with the Taganrog LRO.","10.Reacting to the letter from the deputy Prosecutor General, on 13September 2007 a deputy Rostov Regional Prosecutor directed all town and district prosecutors to carry out inspections of the religious organisations of Jehovah\u2019s Witnesses:","\u201cStructures of the foreign religious organisation (FRO) of Jehovah\u2019s Witnesses, registered ... in the Rostov Region, are actively functioning in the territory of Rostov Region. The organisation, as a matter of course, refuses to recognise the State authority in the countries in which its branches are located. The activity of the FRO has been banned in several jurisdictions.","Despite having official registration, by carrying out their cult activity followers of the FRO of Jehovah\u2019s Witnesses regularly commit violations of Russian law. In particular, they preach refusal to fulfil civil responsibilities (serving in the army, paying taxes, commission of administrative and criminal offences). They forbid their followers from accepting medical assistance in the form of blood transfusions resulting in death or serious harm being caused to their health, including that of children. A characteristic feature of the organisation is the aggression it openly displays towards representatives of other religious confessions ...","The findings of a religious expert study of several printed publications that had been distributed by the Jehovists in the Rostov Region, carried out in August of this year by the Rostov Center for Court Expert Studies indicate that they contain indicators of incitement to religious enmity.","On the basis of the above, it is necessary for you to organise and conduct a thorough investigation of local religious organisations of Jehovah\u2019s Witnesses located in your jurisdictions, together with the territorial agencies of the Federal Security [Service] and the registration service, and to take all possible reactive measures, including examining the question of preparing and sending to courts applications to liquidate local organisations for violations of law they committed, and to inform the regional prosecutor\u2019s office with details of reactive measures by 10October 2007.\u201d","11.The expert study to which the deputy prosecutor referred, had been commissioned on 2August 2007 by the acting prosecutor in the Tarasovskiy district with a view to determining whether or not a number of Jehovah\u2019s Witnesses\u2019 books and magazines contained \u201cindicators of inciting hatred or hostility, or of debasing human dignity on account of one\u2019s attitude toward religion, or of advocating the exclusivity of one religion in comparison with another\u201d. An expert from the Rostov Centre for Forensic Studies found that, while the texts studied contained elements of hatred towards the \u201cChristendom\u201d, that is all religious movements recognising Jesus Christ and the Bible except Jehovah\u2019s Witnesses, there were no expressions inciting hostility which could \u201cencourage readers to take action aimed at the destruction of the object of hatred\u201d. The texts also advocated the exclusivity of one religion, inasmuch as the Jehovah\u2019s Witnesses\u2019 movement pronounced itself to be the only true religion, whereas all other Christian religions were seen to be Satanic.","12.In pursuance of the Rostov Regional deputy prosecutor\u2019s letter of 13September 2007 and referring to the findings of the expert study, on 31October 2007 the acting deputy Taganrog prosecutor issued a warning to the Taganrog LRO, advising it \u201cto stop extremist activities\u201d. The Taganrog LRO sent a written reply, considering the warning to be unlawful.","13.The Taganrog prosecutor also pursued other lines of investigation into the activities of Jehovah\u2019s Witnesses in the region. On 17October 2007 his senior assistant requested the head doctor of the city hospital to provide a copy of the medical record of MsS. who had been treated in the hospital in 2004, and the contact details of the medical staff in charge of the treatment. S. had been one of the founding members of the Taganrog LRO; on 17March 2004 she had been admitted to the hospital following a serious traffic accident. Throughout her treatment, she requested that the doctors should refrain from administering blood products. On 8April 2004 she died due to her extensive injuries. Both the post-mortem diagnosis and the medical examiner who conducted forensic autopsy for the purposes of a criminal investigation against the driver had concurred that her death had been caused by trauma, blood loss and multiple organ failure.","14.On 9June 2008 the Rostov Regional Prosecutor\u2019s office filed a claim in the Rostov Regional Court to liquidate the Taganrog LRO. The stated grounds for liquidation were:","(a)the death of S. which was alleged to have been the consequence of her refusal of blood transfusion;","(b)the ongoing distribution of religious literature which the expert study had found to contain indicators of extremism;","(c) the fact that the Taganrog LRO had held services of worship outside the area of operation indicated in its documents;","(d)the materials of a criminal case against MrG. who had been convicted of refusing to accept alternative civilian service which was to be carried out at a factory connected with the military;","(e)the failure to amend the list of founders of the Taganrog LRO following S.\u2019s death;","(f)the omission of the full details of the publisher religious organisation in certain printed materials of Jehovah\u2019s Witnesses.","15.The Taganrog LRO sought to join the Administrative Centre and two publishers of religious literature as parties to the proceedings since they were responsible for the printing, publishing, and distribution of the religious literature of Jehovah\u2019s Witnesses in Russia. All such applications were denied.","16.On 11August 2009 the prosecutor supplemented his claim in the case with the request that the sixty-eight publications of Jehovah\u2019s Witnesses submitted for a composite study be declared extremist material. On 7September 2009 the prosecutor again amended the claim by requesting that the Taganrog LRO not only be liquidated but also be declared an extremist organisation and that its property and all existing copies of the sixty-eight religious publications be confiscated.","17.By judgment of 11September 2009, the Rostov Regional Court granted the prosecutor\u2019s claim, ordering the liquidation of the Taganrog LRO as an extremist organisation and the banning of its activities. The Regional Court founded its judgment on the following evidence.","18.On the charge of extremism, the Regional Court reproduced the findings of the composite expert study which established that thirty-four \u2013 out of a total of sixty-eight \u2013 publications of Jehovah\u2019s Witnesses contained \u201cindicators of inciting religious discord\u201d:","\u201cAssessing the research conducted by the experts and their oral evidence before it, the court has reached the conclusion that part of the literature and printed publications distributed by the [Taganrog] LRO contain a number of expressions ... demonstrating the negative attitude of Jehovah\u2019s Witnesses toward various elements of traditional Christianity, a negative image of Catholicism as a traditional Christian denomination, and a sharply negative assessment by one religious group, including accompanying illustrations directed at the Roman Catholic Church and the Russian Orthodox Church. The literature contains information capable of undermining the reader\u2019s respect for Christian religions (except Jehovah\u2019s Witnesses) and for their Christian religious figures, and also contains expressions and content urging [people] to leave other Christian religions (false religions) and to join the religion of Jehovah\u2019s Witnesses. Such appeals are expressed in various forms \u2013 declarations of intent, directives, pleading, appeals, and advice. Manipulative devices are used to exert psychological influence on the consciousness of the perceiver.\u201d","The Regional Court referred to the statements by two Orthodox priests and five Orthodox believers who claimed having been offended by the Witnesses\u2019 criticism of Orthodox Christianity. On the basis of their testimony, the Regional Court found that the Witnesses\u2019 literature and views \u201coutrage religious feelings, provoke conflict on interreligious grounds, and inflame religious discord\u201d.","19.The Regional Court then turned to the grounds for the liquidation of a religious organisation established in the Religions Act. On the charge of incitement to refuse medical assistance, the court took evidence from MsS.\u2019s husband and the head of emergency unit. They confirmed that after the accident MsS. had been repeatedly offered blood transfusion which she had firmly refused, citing her religious duty as a Jehovah\u2019s Witness. In the doctor\u2019s opinion, the medicine her fellow believers had brought for her had not been the kind of the blood substitutes she had needed. On the basis of the above-mentioned expert study, the testimony by witnesses and MsS.\u2019s medical record, the Regional Court considered it established that \u2013","\u201c... the refusal of a blood transfusion did lead to a fatal outcome since other methods of treatment turned out to be ineffective. [The court] considers that the establishment of injury to health of at least one person is a proven gross violation of law which would be incompatible with the continued operation of the LRO.\u201d","20.On the issue whether the Taganrog LRO advocated abandonment of civic duties, the Regional Court again referred to the expert study and also heard an official of the Taganrog military drafting office. He stated that in 2007 MrG. had been one of ten conscripts who professed the religion of Jehovah\u2019s Witnesses. He had learnt of the existence of the Taganrog LRO from two young men who were on their way to serve when \u201cattempts were made to influence them not to serve\u201d. MrG. had refused a specific assignment to perform alternative civilian service, for which he was found criminally liable. The Regional Court found this evidence sufficient to conclude that a breach of the law on the part of MrG. had been the product of the influence of the Taganrog LRO:","\u201c... the evidence produced at the trial confirms the fact that the Taganrog LRO committed actions inciting citizens to refuse to fulfil civic duties established by law. Those actions included distributing among believers of literature containing such appeals ... and the influencing of citizens of conscription age not professing the said religion to refuse to perform military service. The last allegation is based on the testimony of the witness ... from the Taganrog military drafting office [who] testified that he learned of the existence of conscripted believers in the spring of 2007 during the spring call-up, when conscripted young men approached him and said that other conscripted persons were influencing them to refuse to undergo service in the army.\u201d","21.The Regional Court further considered the prosecutor\u2019s allegation that the Taganrog LRO involved minors in its activities. The prosecution produced two witnesses: MrS., former husband of a Jehovah\u2019s Witness, stated that his former wife involved their child in the religious activities, despite his objections. He had sought a judicial order for amending the custody arrangements but it had been refused because his former wife and the child had \u201cexcellent living conditions\u201d. The second witness, MsB., an official of the Child Protection Authority, reported the case of a sixteen\u2011year-old student who had fallen behind in her studies because she had missed classes twice a week to visit a Sunday school. In the end the child had been helped and had finished school. Two witnesses for the Taganrog LRO, the former wife of MrS. and another Witness mother, told the court that they read Bible together with their children and attended religious meetings twice a week but they did not celebrate birthdays or State holidays. The Regional Court drew the following conclusion from the testimony before it:","\u201cThe testimony ... objectively confirms the arguments in the application regarding minor children being lured into the organisation\u2019s activity, including into the preaching activity, as small or minor children are being obliged, together with their parents, regardless of weather or time of the year, to go on the streets and to apartments with the goal of distributing literature, and to be present for long periods of time at [religious] meetings ...","The circumstances established during the trial testify to the violation by the religious organisation and its members of the provisions of the Convention on the Rights of the Child, the Constitution, and the Family Code, as they involve very young children in the religious organisation without the consent of the other parent, who has equal rights and duties in the upbringing of the children, and do not consider the opinion and interests of the children.","The actions of the members of the Taganrog LRO constitute a direct violation of the provisions of Article31 of the Convention on the Rights of the Child, which establishes that the States Parties recognise the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child, and to participate fully in cultural and artistic life.","The testimony of the witnesses who are members of the organisation, to the effect that they visit the park with their children, take trips to the zoo, and spend time with their children in nature, does not attest to the parents\u2019 ensuring conditions for the full and comprehensive development of the children, since all these activities only take place with the participation of other members of the organisation. Not one of the witnesses demonstrated that their children actively participate in sports or in any type of sports leagues, are receiving a musical education, or are interested in and attending hobby groups of any kind, all of which are necessary for a comprehensive development of personality, abilities, and interests.\u201d","22.The Regional Court also found that the activities of the Taganrog LRO led to destruction of family relations on account of religious differences. The court referred to the findings of the expert study to the effect that \u201cfaith in God takes priority over family relationships\u201d and that \u201cnon-belief on the part of a spouse or children is considered to be a basis for marital instability ... and also for termination of relations with the non\u2011believing family member\u201d. It also took evidence from MrSt., director of the Consultative Centre, an entity under the patronage of the Orthodox Church, who told the court that MrS. (see the preceding paragraph) and MrK. had sought his advice on how to prevent their families from breaking-up because of their wives\u2019 involvement in Jehovah\u2019s Witnesses\u2019 work. MrS. and MrK. confirmed that before the court. Five witnesses for the defence who testified about their harmonious relationships with their spouses were deemed unreliable by the Regional Court: according to the court, MrV., a non-believer, did not speak the truth because \u201chis wife was in attendance in the courtroom during his testimony\u201d and the four Jehovah\u2019s Witnesses had a vested interest in \u201ccontinuing the activities of the organisation of which they were members\u201d.","23.Lastly, the Regional Court considered it established that the Taganrog LRO \u201chad encroached on the personality, rights and freedoms of citizens\u201d. That charge had two facets: first, the Taganrog LRO \u201cdetermined how the believers\u2019 free time [was to be] spent and forbade them to celebrate holidays and birthdays\u201d, and second, the members of the LRO preached at homes uninvited, \u201cwithout giving heed to the opinion of persons whom they visited and whose private life they interfered with\u201d.","24.On the strength of the above evidence, the Regional Court pronounced the Taganrog LRO to be an extremist organisation and ordered that it be liquidated, its activities banned and its property, including the \u201cKingdom Hall\u201d and the adjacent plot of land, confiscated and transferred to the State. Thirty-four publications of Jehovah\u2019s Witnesses were declared extremist material and also confiscated.","25.The Taganrog LRO filed a 125-page statement of appeal, in which it dissected the Regional Court\u2019s judgment and complained in particular that the Jehovah\u2019s Witnesses had been singled out for persecution and discrimination. It referred to the prosecutor\u2019s letters which explicitly targeted the organisation, to the press publications about the trial, and to the fact that the Regional Court took evidence from Orthodox priests, avowedly Orthodox Cossacks and the director of an Orthodox-affiliated centre MrSt.","26.On 8December 2009 the Supreme Court of the Russian Federation rejected the appeal in a summary fashion, without addressing the arguments in detail. On the same day it rejected an application by the Administrative Centre requesting that it be heard as a party to the proceedings.","27.The applicants in the below cases include the local religious organisations of Jehovah\u2019s Witnesses (LROs), individual members of the affected congregations, the Administrative Centre, and the German and US publishers of the Jehovah\u2019s Witnesses\u2019 literature.","28.On 22December 2008 the town prosecutor in Gorno-Altaysk in the Altay Region filed an application with the Gorno-Altaysk Town Court to declare extremist twenty-seven religious publications of Jehovah\u2019s Witnesses. He relied on an expert assessment which determined that the publications proclaimed the superiority of the religion of Jehovah\u2019s Witnesses. The number of publications was later reduced to eighteen, by withdrawing from consideration the publications held to be extremist by the Rostov court.","29.On 7June 2009 the police searched the place of worship of Jehovah\u2019s Witnesses in Gorno-Altaysk confiscating hundreds of items of religious literature. They also searched the homes of the legal representative of the Gorno-Altaysk LRO, and of another Jehovah\u2019s Witness, seizing religious literature and their personal property.","30.On 1October 2009 the Town Court declared extremist eighteen religious publications of Jehovah\u2019s Witnesses (one brochure, seven Awake! magazines, and ten Watchtower magazines). The court endorsed in their entirety the findings of the expert assessment to the effect that the publications promoted \u201cthe superiority of Jehovah\u2019s Witnesses\u2019 teachings and the inferiority of other religions.\u201d It ordered that the publications be confiscated and added to the federal List of Extremist Materials. On 27January 2010 the Supreme Court of the Altay Republic dismissed the appeal in a summary fashion.","31.Following a complaint by a member of the public asserting that certain publications of Jehovah\u2019s Witnesses proclaim the superiority of their religion over others, the town prosecutor in Salsk in the Rostov Region asked a linguistic expert to conduct a study on the literature concerned. The expert concluded that the texts did not contain signs of extremism but that they could \u201ccause the incitement of hostility to other religions\u201d and did contain \u201ctraces of propaganda of the superiority of one religion over others\u201d. A subsequent court-appointed study concluded that four publications contained statements capable of \u201cundermining respect, or of evoking hostile feelings, towards religions other than Jehovah\u2019s Witnesses\u201d and information \u201cabout the exclusivity and moral superiority of Jehovah\u2019s Witnesses\u201d. The prosecutor filed an application with a court to have the publications declared extremist.","32.On 27June 2011 the Salsk Town Court granted the prosecutor\u2019s application in part, ruling to pronounce the nine of the twelve publications extremist, extensively quoting from, and fully endorsing the findings of, the expert studies. Following an appeal hearing on 13October 2011, the Regional Court amended the judgment in the part concerning the six publications which were already on the Federal List of Extremist Materials and upheld the finding of an extremist nature of the remaining three publications.","33.On 11March 2009 the Krasnodar regional prosecutor filed an application with the Pervomayskiy District Court of Krasnodar, requesting that four publications of Jehovah\u2019s Witnesses \u2013 which had been allegedly discovered in a public park \u2013 be pronounced extremist: three issues of The Watchtower magazine, and the book Draw Close to Jehovah.The claim was based on the findings of a linguist from the Krasnodar regional police and concerned one issue of The Watchtower magazine which had been pronounced as not containing signs of extremism in the Rostov proceedings (see paragraph 18 above).","34.On 29June 2009 the District Court appointed a psychological linguistic assessment of the publications which was completed on 18February 2011. The experts found that the publications contained indications of disrespectful or hostile attitude to religions other than Jehovah\u2019s Witnesses and of their superiority over other religions, but that there were no statements inciting religious hatred or calls for enmity or violent acts against any other social or religious group.","35.Relying on the findings of the expert study, on 22April 2011 the District Court granted the prosecutor\u2019s application in full and pronounced the four publications extremist.It rejected the expert studies that had been supplied by the defence on the grounds, in particular, that the studies had been carried out at the request of a party to the case. On 16August 2011 the Krasnodar Regional Court upheld the judgment on appeal.","36.On 22September 2010 the Zavodskiy district prosecutor in Kemerovo asked the Zavodskiy District Court to declare six publications of Jehovah\u2019s Witnesses (the book The Bible\u2014God\u2019s Word or Man\u2019s?, the brochure Keep on the Watch!, and four issues of the Watchtower and Awake! magazines) to be extremist.The application rested on a linguistic assessment which concluded that the publications incited to enmity and hatred towards Catholicism and Catholic priests but did not contain calls to violence or other unlawful actions. Members of the local congregation, the Administrative Centre or the publishers were not summoned to participate as parties to the case. On the basis of the expert\u2019s report as the sole piece of evidence, on 28October 2010 the District Court granted the prosecutor\u2019s application and declared the publications extremist.","37.The applicants only became aware of the decision when the publications appeared on the Federal List of Extremist Materials after it had been updated on 18January 2011 on the web site of the Ministry of Justice.","38.Between 25 and 27January 2011 fifteen Jehovah\u2019s Witnesses from Kemerovo, the Administrative Centre and the publishing houses filed statements of appeal. On 28March 2011 the District Court rejected the appeals, holding that, as the applicants had not participated in the 28October 2010 hearing, they did not have the right to appeal against the decision.","39.The applicants challenged the refusal to consider their appeals before the Regional Court.On 8July 2011 the Kemerovo Regional Court rejected the complaint, finding that the District Court\u2019s judgment did not interfere with the applicants\u2019 right to freedom of religion.","40.On 20March 2012 the head of the Central Military District of the Federal Security Service (FSB) wrote to the Sovetskiy district prosecutor in Krasnoyarsk that they had been carrying out \u201coperational-investigative measures aimed at suppressing the extremist activity of followers of the Jehovah\u2019s Witnesses\u201d to prevent them from \u201crecruiting military personnel of military units of the Krasnoyarsk garrison into the destructive activity of the religious organisation of Jehovah\u2019s Witnesses\u201d.As a result of these measures, they seized a copy of the book What Does the Bible Really Teach? published in Germany in 2009, that was identical in its contents to the earlier 2005 edition which had already been pronounced to be extremist by the Rostov Regional Court in 2009 (see paragraph 18 above).The FSB requested the prosecutor to institute judicial proceedings to have the 2009 edition also declared extremist.","41.On 28April 2012 the prosecutor filed such an application with the Sovetskiy District Court of Krasnoyarsk.By judgment of 14February 2013, the District Court granted the prosecutor\u2019s application, finding that the 2009 edition was identical in its contents to the 2005 edition which had been pronounced extremist. On 20May 2013 the Krasnoyarsk Regional Court upheld the judgment on appeal.","42.On 13June 2012 the FSB wrote to the Sovetskiy district prosecutor that they had prevented the Jehovah\u2019s Witnesses from carrying out extremist activities and recruiting military personnel and had seized thirteen publications which had the characteristics of extremist material.","43.On 25June 2012 the prosecutor in Krasnoyarsk filed an application with a court, seeking a declaration that the brochure Will You Follow Jehovah\u2019s Loving Guidance? was extremist. By way of justification, the prosecutor referred to an expert assessment. The expert found that the brochure \u201ccontained calls to reject one\u2019s own religion in favour of that of Jehovah\u2019s Witnesses\u201d through declaring that \u201call non-Christian religions [were] clearly false\u201d and \u201cemphasising the true nature of the teachings of Jehovah\u2019s Witnesses\u201d.","44.On 24January 2013 the Sovetskiy District Court granted the application, fully endorsing the findings contained in the expert opinion. On 24July 2013 the Regional Court upheld the judgment on appeal.","45.On 2November 2011 a district prosecutor of the Krasnodar Region asked the Uspenskiy District Court to declare extremist the Jehovah\u2019s Witnesses\u2019 book \u201cBearing Thorough Witness\u201d About God\u2019s Kingdom. A first court-commissioned expert assessment concluded that the book did not contain calls to enmity and hatred or any statements degrading the dignity of others. The second assessment appointed at the prosecutor\u2019s request found that the book contained \u201cindicators of indirectly inciting citizens to refuse to perform lawfully established civic obligations, in particular non-compliance with judicial decisions and government bans conflicting with the principles of the religious teachings of Jehovah\u2019s Witnesses\u201d and statements \u201ccapable of creating in the reader a negative perception ... of ministers of traditional Christian denominations\u201d. An Orthodox priest, heard at the request of the prosecutor, was of the view that the book had an extremist character.","46.On 19June 2013 the District Court pronounced the book extremist, relying exclusively on the findings in the second expert assessment and the statements by the Orthodox priest. On 8October 2013 the Krasnodar Regional Court dismissed their appeals and upheld the judgment in a summary fashion.","47.On 14October 2013 a military prosecutor in Vladimir asked the Leninskiy District Court of Vladimir to pronounce two brochures of Jehovah\u2019s Witnesses to be extremist on the grounds of an expert\u2019s assessment that the brochures incited religious hatred and advocated superiority of one religion above others. On 23October 2013 the Leninskiy District Court granted the prosecutor\u2019s application, relying exclusively on the expert report. The publisher of the brochures or any other representatives of Jehovah\u2019s Witnesses were not summoned to the hearings. The judgment became final on 2December 2013.","48.On 26May 2014 a prosecutor in Birobidzhan in the Yevreyskiy Region issued an official warning letter to the local organisation of Jehovah\u2019s Witnesses. With reference to the judgment of the Leninskiy District Court of Vladimir, he advised the applicants to cease the distribution of the brochures.","49.Having thus become aware of the judgment of the Leninskiy District Court, the applicants appealed against it, requesting the District Court to restore the time-limit for lodging an appeal. On 7August 2014 the District Court dismissed their request, finding that the judgment did not interfere with the applicants\u2019 rights and that they did not give a valid reason for missing the time-limit for appeal. On 7October 2014 the Vladimir Regional Court upheld this decision on appeal.","50.In the second half of 2010 individual Jehovah\u2019s Witnesses were prosecuted for using the religious literature declared to be \u201cextremist\u201d in religious ministry.","51.MrBoltnyev and MrMardonov in Tatarstan (applications nos.3488\/11 and 3492\/11) were stopped by the police in the street. The police demanded to see their documents and contents of their bags; on discovering Jehovah\u2019s Witnesses\u2019 literature, the police took them to the station and seized all the literature in their possession, including their personal Bibles and notepads. On 9June 2010 the magistrates\u2019 court in Nizhnekamsk found them guilty of \u201cmass dissemination of extremist material\u201d, an offence under Article20.29 of the Code of Administrative Offences (CAO) on the basis the fact that they had in their possession the book What Does the Bible Really Teach? which had been previously declared extremist. They were fined 1,000 Russian roubles (RUB) each. On 7July 2010 the Nizhnekamsk Town Court rejected their appeals.","52.In the case of MrAliyev in Birobidzhan (application no.14821\/11), a certain MrM., posing as a member of the public, attended a meeting of the local congregation of Jehovah\u2019s Witnesses with the stated aim of \u201cstudying the religion\u201d. He made audio recording of the meeting and provided it to the Birobidzhan prosecutor, claiming that he was concerned about distribution of extremist literature. A joint team of the police, prosecutors and security services interrupted a religious meeting on 31March 2010 in which a partial copy of religious textbook Come be my Follower was being used. By judgment of 26May 2010, as upheld on appeal on 11August 2010 by the Birobidzhan Town Court, the magistrates\u2019 court found MrAliyev guilty of mass dissemination of extremist material, noting that he had allowed the text to be distributed and commented upon in his presence, and fined him RUB3,000.","53.MrFedorin in the Rostov Region (application no.17552\/11), one of Jehovah\u2019s Witnesses since 1959 who had been sentenced to six years\u2019 imprisonment in 1972 for his religious convictions, was found guilty of the distribution of religious literature, including \u201cextremist\u201d publications, among residents of the village of Sredniy Yegorlyk. He was fined RUB1,000 (final decision \u2013 21September 2010, the Tselinskiy District Court).","54.The police entered the flat of MsChekhovskaya in Belgorod (application no.17552\/11) acting on information received from her grandfather, who had let them in without a search warrant in her absence. The officers seized MsChekhovskaya\u2019s entire personal library of religious literature, including books, journals, hymn books and Bibles. By judgment of 27July 2010, as upheld on appeal on 14September 2010 by the Sverdlovskiy District Court of Belgorod, she was found guilty of possession of extremist literature with the intent of mass dissemination and fined RUB1,000.","55.MsSavelyeva in Yoshkar-Ola (application no.17552\/11) and her fellow believers were placed under surveillance by the Centre for Suppression of Extremism (CSE) of the Mariy El Police Department. They were detained in a joint operation carried out by the chief, deputy chief and a senior officer from the CSE, and an officer from the Department for the Protection of the Constitution. By judgment of 12October 2010, as upheld on appeal on 22December 2010 by the Yoshkar-Ola Town Court, she was found guilty of disseminating one title of extremist literature and intending to disseminate two others and fined RUB1,200.","56.On 7October 2010 officers from the Department for the Protection of the Constitution of the Samara division of the FSB arrived at the residence of MsEbenal in the Samara Region (application no.17552\/11). They showed her a court order authorising the inspection of her apartment and asked her to hand over her religious literature, since it was alleged that she had distributed the publication What Does the Bible Really Teach? in the spring of that year. The officers seized her entire personal library of religious publications. By judgment of 15November 2010, as upheld on appeal on 29December 2010 by the Volzhskiy District Court of Samara Region, she was found guilty of mass dissemination of extremist materials and fined RUB1,000.","57.In the case of MsBelimova in Tver (application no.17552\/11), she was initially found guilty of mass dissemination of extremist material on the grounds that she had supplied religious publications to MsF. and also studied Bible with her (final judgment of 18March 2011 by the Tsentralniy District Court of Tver). On 18October 2011 the President of the Tver Regional Court quashed the judgments by way of supervisory review and discontinued the proceedings because communication of extremist materials to one another person did not constitute \u201cmass dissemination\u201d of such materials. The order to confiscate and destroy thirty-eight publications which had been declared extremist was maintained.","58.The applicants are the local religious organisation of Jehovah\u2019s Witnesses in Samara (the \u201cSamara LRO\u201d) and six members of Jehovah\u2019s Witnesses\u2019 groups of the Samara Region, including MrMoskvin from the Novokuybyshevsk congregation. At the time the Samara LRO had a membership of ten, but the thirteen Jehovah\u2019s Witnesses congregations in the Samara Region were made up of more than 1,500 members.","59.On 29January 2013 the Novokuybyshevsk town police in the Samara Region inspected the premises rented by the Samara LRO in which the Novokuybyshevsk congregation held their religious services. During the inspection, ten issues of the brochures which had been declared extremist by the Rostov court were uncovered and seized. MrMoskvin, an \u201celder\u201d (religious minister) of the Novokuybyshevsk congregation, was charged with \u201cmass dissemination of extremist material\u201d under Article20.29 of the CAO. By judgment of 3April 2013, as upheld on appeal on 13May 2013, the Novokuybyshevsk Town Court fined him RUB3,000.","60.Referring to MrMoskvin\u2019s conviction, a regional prosecutor issued identical warnings to the Novokuybyshevsk congregation and the Samara LRO, advising them that any form of extremist activity was prohibited on pain of liquidation. The Samara LRO replied to the prosecutor that MrMoskvin was not one of its members and that the Novokuybyshevsk congregation was not a structural division of the LRO. No reply was received to their submission.","61.On 22January 2014 the Samara Regional police department decided to inspect the premises rented by the Samara LRO at the local community centre for the purpose of \u201ccollecting additional information [allowing the prosecutor] to decide on the institution of criminal proceedings\u201d. The police were instructed to seize all objects and documents \u201crelevant to the illegal activity\u201d. In a box inside a cabinet, they found seven copies of four books which had been declared extremist by the Rostov court. Following the inspection, the Samara LRO was charged with possession of extremist material with intent to mass dissemination. By judgment of 7March 2014, as upheld on appeal on 17April 2014, the Sovetskiy District Court of Samara fined it RUB50,000.","62.On 22April 2014 the Samara Regional prosecutor asked the Samara Regional Court to declare the Samara LRO \u201cextremist organisation\u201d and to liquidate it. The prosecutor cited the MrMoskvin\u2019s and the Samara LRO\u2019s convictions for possession of extremist materials. The Samara LRO objected to the prosecutor\u2019s claim, by asserting that the facts of storage of extremist literature were wrongly imputed to it, since MrMoskvin did not belong to the Samara LRO and that the Novokuybyshevsk community operated as an independent religious group.","63.The Regional Court dismissed the Samara LRO\u2019s arguments as an attempt to impeach the findings of the Novokuybyshevsk Town Court and the Sovetskiy District Court. With reference to the final decisions by those courts, on 29May 2014 the Regional Court held that the Samara LRO\u2019s administrative conviction under Article20.29, intervening as it did within twelve months after the prosecutor had given an anti-extremism warning, constituted a sufficient ground to declare it an \u201cextremist organisation\u201d, to liquidate it and to confiscate its property.","64.On 12November 2014 the Supreme Court dismissed an appeal by the Samara LRO in a summary fashion.","65.In 1997 the Russian media regulator granted the German publisher of the Jehovah\u2019s Witnesses\u2019 Watchtower and Awake! magazines a permit to distribute the magazines in Russia. The Administrative Centre was listed in the permit as the \u201capplicant and distributor of the magazines\u201d produced by the German publisher.","66.On 26April 2010 the successor media regulator (known by its Russian abbreviation \u201cRoskomnadzor\u201d) issued an order to withdraw the permit. The order referred to the judgments by the Rostov Regional Court and the Gorno-Altaysk Town Court by which certain issues of the magazines had been pronounced extremist.","67.The applicants challenged the order in court. The courts at two instances upheld the validity of the order but on 22June 2011 the Federal Commercial Court of the Moscow Circuit ruled to quash their judgments and remit the matter for a new hearing. It found in particular that the lower courts had not established a legal basis granting Roskomnadzor the power to revoke permits.","68.On 6 October 2011 the Moscow City Commercial Court found that that the order had been unlawful:","\u201c... the law does not authorise [Roskomnadzor] to revoke a permit to distribute a foreign printed periodical ... the disputed order indicates that all issues of the magazines are prohibited for distribution in Russia, whereas court decisions declared only individual issues of these periodicals extremist.","... [Roskomnadzor] did not present adequate evidence to establish that courts had declared extremist all issues of the printed periodicals Awake! and The Watchtower. Thus, its revocation of the permit to distribute all issues of the printed periodicals Awake! and The Watchtower in Russia was unlawful.\u201d","69.On 25January 2012 the Commercial Court of the Ninth Circuit overturned the City Court\u2019s judgment on the grounds that using mass media for the promotion of extremism was prohibited in the Mass-Media Act and that the functioning of a media outlet promoting extremism should be terminated in accordance with the Suppression of Extremism Act.","70.On 29May 2012 the Federal Commercial Court of the Moscow Circuit upheld that judgment, finding a legal basis for the revocation in section32 of the Mass Media Act:","\u201cIn view of the fact that the legislation does not directly regulate the revocation of a permit to distribute foreign printed periodicals, Roskomnadzor used, by an analogy of law, the legislation governing a similar situation \u2013 section32 of the Mass-Media Act, \u2018Revocation of a License\u2019 \u2013 in issuing the order.\u201d","71.On 25October 2012 the Supreme Commercial Court refused the applicants\u2019 supervisory appeal.","72.In the second half of 2010 the authorities obtained copies of The Watchtower and Awake! magazines in various ways. In the case of MrSirotyuk in the Primorskiy Region, the head of the village administration and an assistant district prosecutor had asked him for \u201csome religious literature\u201d during a religious meeting. MrEbeling in the Smolensk Region was stopped by the police on his way home; they asked him to show them the contents of his bag on the grounds that they had been ordered to detain anyone distributing \u201cbanned literature\u201d. In another case from the Primorskiy Region, the police set up video surveillance in a car parked near the building where applicant MrKonyukhov lived; they also asked a member of the public to go to his flat and obtain magazines from him. In the case of MsBondareva from the Kamchatka Region, the police seized magazines from the homes of individuals who told the police that they had received them from her. Lastly, in the case of MrKomarov in Udmurtiya, the police stopped the car in which he was travelling and seized the publications from the boot of the car.","73.In all cases, the applicants were found guilty on charges of distributing unregistered magazines, an offence under Article13.21 of the CAO, and were fined between RUB1,000 to 1,200. The court decisions included an order to confiscate and destroy the publications. The final decisions were issued as follows: MrSirotyuk: 19November 2010, the Khankayskiy District Court of the Primorskiy Region; MrEbeling: 13September 2010, the Gagarinskiy District Court of the Smolensk Region; MrKonyukhov: 30September 2010, the Pogranichniy District Court of the Primorskiy Region; MsBondareva: 7December 2010, the Ust\u2011Bolsheretskiy District Court of the Kamchatka Region; and MrKomarov: 21December 2010, the Oktyabrskiy District Court of Izhevsk.","74.In 2010 the Administrative Centre received from a German organisation of Jehovah\u2019s Witnesses a free gift of religious publications. After going through customs formalities, the publications were released for unrestricted distribution in the territory of Russia. The Administrative Centre sent a portion of the publications by railway to Kemerovo for the use by local Jehovah\u2019s Witnesses, with applicant MrGareyev being listed as the recipient. Not one of the publications included in the shipment had been pronounced extremist by a court anywhere in Russia.","75.Applicants MrGareyev and MrRashevskiy collected the literature and loaded it into a private van with the intention of delivering it to Jehovah\u2019s Witnesses in local congregations. On their way, they were intercepted by the armed police and taken to the Investigations Committee for questioning. After they had been questioned, the investigator ordered that the religious literature from the vehicle be seized on the grounds that the van could contain \u201creligious literature relevant to the criminal case\u201d. The police seized more than 100 packages of literature weighing over one ton.","76.On 17February 2011 the applicants complained to a court that the seizure order was unlawful as it did not indicate what specific literature was of relevance to the criminal case. Not one item of the literature in the vehicle had been pronounced extremist or was subject to any restriction under Russian law.","77.By judgment of 1April 2011, as upheld on appeal on 19July 2011, the Zavodskiy District Court rejected the complaint. It found that the seizure order had been issued by the investigator lawfully and that the purpose of the seizure was \u201cto form an objective view on the activities of the organisation\u201d rather than to uncover extremist literature.","78.The consignment has never been returned to the applicants.","79.The applicants are the Watchtower Bible and Tract Society of New York (\u201cWatchtower New York\u201d) as the owner of the Jehovah\u2019s Witnesses\u2019 international website at jw.org, the Administrative Centre, and ten individual Russian Jehovah\u2019s Witnesses who have various perceptive limitations (visual or hearing impairments).","80.On 7August 2013 the Tsentralniy District Court in Tver, on an application by a prosecutor, pronounced the Jehovah\u2019s Witnesses\u2019 website to be extremist on the ground that it contained copies of the brochures What Does the Bible Really Teach?, Draw Close to Jehovah and the book Come Be My Follower which had been previously declared extremist by the Rostov courts. It also referred to the information from the FSB, according to which the website contained copies of the brochures How Can Blood Save Your Life? and What Does God Require of Us? and copies of Awake! and The Watchtower magazines whose distribution permit had been revoked. Watchtower New York and the Administrative Centre were not informed about the proceedings. The District Court held that a decision declaring the website extremist in Russia would not affect the rights of Watchtower New York, making its participation in the proceedings unnecessary.","81.On 12September 2013 the applicants became aware of the District Court\u2019s decision from media reports. They filed separate appeals, complaining in particular that the decision had affected their rights without giving them an opportunity to take part in the proceedings; that the decision to block the access to the entire website had been excessively broad, because, in addition to the material that had been declared extremist, the website contained religious literature, audio and video records in hundreds of languages, and the decision prevented worshippers in Russia from accessing those non-extremist materials. The individual applicants who had physical limitations also complained that the website was the only source of religious materials with special features, such as sign language commentaries or audio recordings for blind users.","82.On 22January 2014 the Tver Regional Court examined the appeal by Watchtower New York and quashed the decision of 7August 2013. It found, firstly, that Watchtower New York, as the website\u2019s owner, should have been afforded an opportunity to take part in the proceedings. It further noted that the materials declared extremist were no longer accessible on the website from within the Russian territory. Finally, it held that the District Court had gone beyond the scope of the prosecutor\u2019s request by referring to other materials on the website, and that the reference to the revocation of the publication permit was irrelevant. The Regional Court further held that publication of certain extremist materials was not a ground for declaring the entire website to be extremist.","83.On 18March 2014 a judge of the Tverskoy Regional Court refused the prosecutor leave to appeal to the cassation instance.","84.On 21July 2014 a deputy Prosecutor General lodged a second cassation appeal with the Supreme Court of the Russian Federation. On 2December 2014 the Supreme Court quashed the Regional Court\u2019s decision and reinstated the District Court\u2019s decision declaring the website extremist. Watchtower New York was notified about the hearing by registered mail but did not attend because an English translation of the notice had not been ready until after the hearing. On 29December 2014 and 9January 2015 it unsuccessfully requested the Supreme Court to re-open the case.","85.On 21July 2015 the Ministry of Justice added jw.org to the Federal List of Extremist Materials as item 2904.","86.On 2March 2016 a deputy Prosecutor General issued an official warning to the Administrative Centre. With reference to the domestic judgments banning local religious organisations of Jehovah\u2019s Witnesses (LROs) and declaring their publications \u201cextremist\u201d, the Administrative Centre was advised to cease any \u201cextremist activity\u201d on pain of liquidation.","87.On 15March 2017 the Ministry of Justice asked the Supreme Court to declare the Administrative Centre an \u201cextremist organisation\u201d, to liquidate it, together with all 395 LROs of Jehovah\u2019s Witnesses, and to confiscate their property. The Ministry alleged that the Administrative Centre had \u201csystematically breached\u201d the extremism legislation by importing religious publications which had subsequently been declared \u201cextremist\u201d, distributing such publications through its LROs, and also by financing, coordinating and directing LROs, including those whose activities had been declared \u201cextremist\u201d, and by failing to implement any \u201cpreventive organisational measures\u201d after being warned about the prohibition on any form of extremist activity. On the same day, the Ministry, on its authority, suspended the activities of the Administrative Centre and of the LROs pending the examination of the liquidation claim.","88.The LROs did not receive notice of the banning claim from the Ministry of Justice or from the Supreme Court. A majority of them learned of the banning claim from the media. On 5April 2017 they filed an application to be added as co-defendants, and another application to the same effect was lodged by the Administrative Centre. By a same-day decision, the judge summarily rejected the applications. On 10April 2017 he also returned an appeal against his decision without consideration on the grounds that the decision was not amenable to a separate appeal.","89.The Administrative Centre objected to the claim on the grounds that its liquidation would constitute an unjustified interference with the right to freedom of religion and freedom of assembly and that its activity was entirely peaceful. It further asserted that the LROs of Jehovah\u2019s Witnesses were independent entities and, therefore, the breaches of the Suppression of Extremism Act on their part should not have been imputed to the Administrative Centre and, vice versa, that its possible liquidation should not entail repercussions for the LROs.","90.By judgment of 20April 2017, the Supreme Court granted the claim, ordering the liquidation of the Administrative Centre and the local organisations of Jehovah\u2019s Witness in Russia and the confiscation of their property. In granting the banning claim, the Supreme Court noted that from 2009 to 2016, eight LROs and eighty-eight publications of Jehovah\u2019s Witnesses and also their website had been banned as \u201cextremist\u201d, and that, after the deputy Prosecutor General\u2019s anti-extremism warning, eight more LROs had been found guilty of \u201cmass dissemination of extremist material\u201d. Accordingly, the Administrative Centre was to be banned as an \u201cextremist organisation\u201d because it had not taken \u201ceffective measures\u201d to prevent the LROs from engaging in \u201cextremist activity\u201d after the liquidation warning, and all LROs were to be banned because they were part of the structure of the Administrative Centre. The Administrative Centre was responsible for all unlawful activities of its regional or structural subdivisions and also for the importation of religious publications which were declared to be extremist. The Supreme Court held that \u201cthe application of such an exceptional measure\u201d did not constitute arbitrary interference with, or unlawful restriction on, citizens\u2019 rights to association or freedom of worship. It pursued \u201ca socially significant aim defined by law \u2013 counteracting extremist activity\u201d and sought to protect the rights and lawful interests of others and to guarantee national security and public order. It was also proportionate and necessary in a democratic society in so far as the elimination of violations of rights of others and of \u201ca real threat of harm to the person and health of others\u201d, public order, public security, society and the State was \u201cthe only means of ensuring a balance of the rights and lawful interests of participants in legal relations in the public legal domain\u201d.","91.On 19May 2017 the Administrative Centre lodged an appeal against the liquidation order and the refusal to join the LROs as co-defendants. The LROs also lodged appeals, relying on the provision of the Code of Administrative Procedure which stipulated that persons not called to participate in the first-instance hearing may lodge an appeal if the judgment affected their rights and obligations (Article295 \u00a72). In May, June and July 2017 the judge of the Supreme Court ruled to return their appeals without consideration on the grounds that the decision to liquidate those organisations as \u201cextremist\u201d and confiscate their property did not \u201crule on matters concerning their rights and obligations\u201d. Some local organisations also attempted to lodge appeals directly with the Appellate Chamber of the Supreme Court.","92.On 17July 2017 the Appellate Chamber of the Supreme Court dismissed the appeal by the Administrative Centre in a summary fashion. By decisions rendered in July, August and September 2017, it also summarily rejected the appeals by LROs.","93.Since the date of the Prosecutor General\u2019s liquidation warning to the Administrative Centre, the LROs transferred ownership of their places of worship, to protect them from State seizure, to foreign religious organisations of Jehovah\u2019s Witnesses and in a few cases private individuals who in turn agreed to permit congregations of Jehovah\u2019s Witnesses to continue to use those places of worship on the basis of a contract of free use. The LROs succeeded in transferring 269 properties before the liquidation decision entered into legal force but were unable to transfer the remaining 97 properties.","94.In the months since the liquidation decision entered into legal force, the Russian authorities initiated court proceedings to annul the transfers. In each case, the domestic courts ruled in favour of the State by annulling the transfer and ordering that the property be confiscated by the State based on the liquidation decision. As of 1September 2021, the Russian authorities have confiscated (1) the 21 properties that were owned by the Administrative Center on the date of the liquidation decision; (2) the 97 properties owned by the LROs on the date of the liquidation decision; and (3) 128 of 269 properties that had been transferred by the LROs to foreign religious organisations of Jehovah\u2019s Witnesses in the months prior to the liquidation decision.","95.On 5August 2011 the South Federal Circuit police opened criminal proceedings under Article282-2 of the Criminal Code against \u201cunidentified individuals\u201d who allegedly sought to resume the activities of the banned Taganrog LRO. Those individuals were suspected of renting out premises on which they had organised meetings of followers, distributed banned literature and incited attendants \u201cto refuse medical assistance, break up family ties and abandon civil duties\u201d.","96.On 4February 2012 another criminal case under the same provision was opened against ten applicants for \u201cparticipation in an extremist organisation\u201d which the banned Taganrog LRO was taken to be. They were accused of organising daily meetings of followers and services of worship for the Vostochnoye congregation with a view \u201cto preaching the superiority of Jehovah\u2019s Witnesses and inferiority of the other religions\u201d; some applicants were accused of rendering technical assistance during meetings in the way of setting-up audio equipment and passing microphones to members of the congregation who wished to speak.","97.On 30May 2012 a third criminal case was opened under Article150 \u00a74 of the Criminal Code (\u201cinvolving a minor in a criminal organisation\u201d). The \u201celders\u201d of the congregation were alleged to have \u201clured\u201d the sixteen\u2011year-old applicant MrKruglikov and ten-year-old N.P. into the \u201corganised extremist criminal group congregation Vostochnoye of the Tanganrog LRO\u201d, \u201cassigning them to preaching and distributing literature, and also to providing technical assistance to the elders in the organisation of meetings.\u201d","98.On an unspecified date all criminal proceedings against the applicants were joined into one criminal case and the applicants were required to give an undertaking not to leave the place of their residence.","99.On 5April 2013 a deputy Prosecutor General approved the list of charges and submitted the case to the Taganrog City Court for trial. The first trial ended with a conviction which was pronounced on 29July 2014 but later quashed on appeal.","100.The second trial opened on 22January 2015. The applicants pleaded not guilty. They put forward the following arguments in their defence: (i) the activity of the Taganrog LRO could not have been resumed after the judgment banning and liquidating the organisation; (ii) that judgment did not concern any other legal entities or individuals apart from the Taganrog LRO and did not affect the applicants\u2019 right to practice their religion which they continued to do as an unregistered religious group; (iii) their services of worship were not \u201cextremist\u201d, they did not read or discuss any literature banned as \u201cextremist\u201d; (iv) the elders did not \u201clure\u201d any minors who had attended the services together with their parents and, according to their testimonies and the statements by their parents, did so voluntarily and enjoyed it.","101.The trial court dismissed their arguments as an \u201cattempt to evade criminal liability\u201d. By the judgment of 30November 2015, it held that the applicants, while aware of the judgment of the Rostov Regional Court banning the Taganrog LRO, resumed and continued its activities by calling meetings, organising religious events, conscripting new members, including minors, distributing extremist literature, collecting donations, organising preaching and involving other applicants into the organisation. In doing so, they were driven by extremist motives \u201cmanifested by [their] expressions debasing human dignity on the basis of religious orientation; inciting hatred, especially for \u2018Christendom\u2019; advocating the exclusivity of one religion in relation to another; rejecting medical treatment on religious grounds for people whose life and health are in danger; encouraging citizens to refuse to fulfil legally established civic duties, including performing military service; involving young children and minors in the activity of the organisation\u201d.","102.The trial court held that the applicants had formed a \u201cstable extremist group\u201d which had existed from the day the Rostov Regional Court judgment banning the Taganrog LRO became final and which had (i) a common purpose of resuming and continuing the banned activities, (ii) common organisers, (iii) \u201cinterchangeable and mutually complementary character of their actions\u201d, and (iv) an \u201cillegal income\u201d which the applicants had obtained \u201cin the form of voluntary donations from citizens which was used for the purposes of extremist activities.\u201d","103.\u201cThe criminal activity of the extremist group\u201d consisted in \u201cinciting religious discord, and advocating the exclusivity and superiority of a religion by degrading other religions\u201d, \u201corganising recruitment of new members\u201d, \u201cbreaking up the family, marriage, and family relationships, alienating people from the family circle because their relatives did not, according to this specific religion, have the correct world view\u201d, \u201cchoosing only part-time work in order to devote more time to preaching and service considering the work of the organisation to be of primary importance\u201d, \u201cdistributing extremist materials and ... possessing them with the intent to mass distribute them and use them in religious services, sermons, and speeches\u201d, \u201cinciting citizens to refuse to fulfil their legally established civic duties by not entering military service\u201d, \u201cinciting ... to reject medical treatment on religious grounds .... in particular, the transfusion of blood and its components even under grave and life-threatening conditions\u201d, and \u201cinvolving minor children ... in the preaching activity when young children were forced to be in attendance with their parents for discussions at meetings for lengthy periods of time.\u201d","104.The criminal acts committed by the applicants were defined as organising and taking part in a series of religious events in the period between 30 April and 15August 2011 and giving \u201cextremist speeches\u201d during these meetings. The trial court also found it established that \u201cthe elders\u201d of the community \u201cby deceit and by other means\u201d had involved applicant MrKruglikov and N.P. in the criminal activity, assigning them to preaching, distributing literature and assisting during the meetings.","105.The Town Court sentenced the \u201celders\u201d of the community to five years\u2019 imprisonment conditional on five years\u2019 probation and fined them RUB100,000 each. The other applicants were convicted of membership of an extremist religious organisation and fined between RUB20,000 and70,000.","106.The applicants appealed. On 17March 2016 the Rostov Regional Court corrected an erroneous legal characterisation of the offences in respect of twelve applicants, reduced the amount of their fines and upheld the judgment in the remaining part. On 22December 2016 and 24April 2017 the Rostov Regional Court and the Supreme Court of Russia, respectively, refused the applicants leave to appeal to the cassation instance.","107.MrDennis Ole Christensen, a national of Denmark, and his wife, a Russian national, were Jehovah\u2019s Witnesses living in Oryol. By judgment of 14June 2016, as upheld on appeal on 18October 2016, the Orlovskiy District Court liquidated and banned the Oryol local religious organisation of Jehovah\u2019s Witnesses (\u201cthe Oryol LRO\u201d) on the grounds of possession of \u201cextremist\u201d publications. MrChristensen was not a member of the OryolLRO; he was a member of the Tsentralnoye religious group, one of three congregations of Jehovah\u2019s Witnesses without legal-entity status.","108.On 16February 2017 the Regional Court granted the request of an FSB investigator to conduct covert surveillance of the Kingdom Hall of Jehovah\u2019s Witnesses in Oryol. The surveillance recorded MrChristensen taking part in Bible-themed discussions.","109.On 25May 2017 the FSB officers first interrupted the religious service in the Kingdom Hall and carried out a personal search of everyone in attendance. Later they searched MrChristensen\u2019s flat and arrested him on charges of continuing the activities of an extremist organisation, the OryolLRO. Following MrChristensen\u2019s overnight detention, the Sovetskiy District Court authorised his detention on remand, holding that his ten-year-long legal residence in Russia, stable income and a Russian wife were all insufficient guarantees against absconding in view of his foreign nationality. On 21June 2017 the Oryol Regional Court upheld the detention order in a summary fashion. Subsequently, the pre-trial detention was extended several times, each time on the same grounds for an additional three- to four-month period. The detention was maintained even after MrChristensen had obtained, on 15September 2017, a letter from the Danish embassy in Moscow giving the assurance that the embassy would not issue him with a new passport or otherwise help him leave Russia.","110.On 9February 2019 the Zheleznodorozhniy District Court in Oryol sentenced MrChristensen to a six-year term in a general regime penal colony for having continued the activities of an extremist organisation:","\u201c... the liquidation of the [Oryol LRO] did not deprive that organisation\u2019s participants of the possibility to individually perform religious worship that was not associated with the distribution of extremist religious literature. However, it has been established in the case that D. O. Christensen did not individually perform worship but performed administrative functions within the [LRO] in accordance with its goals and plans and with the intent of continuing the organisation\u2019s activity, which he knew had been banned on the basis of a court decision ...","It can be seen from the combined testimony of said individuals that D. O. Christensen was the leader of the LRO ... As an elder, he opened and closed the religious premises. He organised the cleaning of the building and adjacent territory. He assigned persons to be on duty at the entrance before the meeting. He determined who gave sermons and other presentations at the meetings, and designated persons to engage in preaching activity. In the absence of religious literature, he recommended that fellow believers study the literature using electronic devices with access to the Internet. He personally conducted meetings, during which he gave advice, explained the meaning of religious literature and designated the persons participating in the discussion of that literature. He reminded people of the need to donate money and collected the money that was received.\u201d","111.In his appeals, MrChristensen submitted that his religious activities had been part of his worship and were therefore protected by his right to freedom of religion. He emphasised that he had never been a member of the Oryol LRO.","112.On 23May 2019 the Oryol Regional Court upheld the judgment on the basis that MrChristensen \u201charmonised and coordinated his actions in directing the [Oryol LRO] with the [Administrative Centre] liquidated by the Supreme Court\u2019s judgment dated 20April 2017\u201d. As to the alleged lack of extremist motives in his conduct, the Regional Court noted:","\u201cThe fact of organising the activity of a religious association declared extremist and distributing information that incites religious discord and advocates the exclusivity, superiority and inferiority of citizens based on their attitude toward religion, indicates in itself that the motive behind [his] actions was religious hatred.\u201d","113.As of 1September 2021, 559 Jehovah\u2019s Witnesses in Russia have been charged for allegedly organising, participating in or financing the activity of an \u201cextremist\u201d organisation. Similar to MrChristensen, 133Jehovah\u2019s Witnesses have already been convicted and sentenced under Article282.2 of the Criminal Code; at least 255 Jehovah\u2019s Witnesses have been placed in pre-trial detention or under house arrest, and more than 1,547homes of Jehovah\u2019s Witnesses have been searched by police."],"277":["2.The applicants were born in 1959, 1948, 1961 and 1944 respectively and live in Istanbul. The applicants were represented by Mr \u0130.D. G\u00f6kk\u0131l\u0131\u00e7, a lawyer practising in Istanbul.","3.The Government were represented by their Agent, MrHac\u0131 Ali A\u00e7\u0131kg\u00fcl, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey.","4.The facts of the case may be summarised as follows.","5.In January and July 2001, two tax inspection reports revealed a chain of false transactions carried out by certain persons and various companies, as well as further irregularities.","6.On 21 September 2001 an expert panel drew up a report concerning an organised fictitious and fraudulent export scheme headed by the applicant Erol Maks Kohen and concluded, inter alia, that false exports had been carried out by two different chains of companies. Furthermore, the experts also found it established that certain companies under the applicant Erol Maks Kohen\u2019s direct control and authority (in particular the \u00d6., M., V.G. and V.T. companies) had entered into so-called \u201cindirect export\u201d agreements with many other companies and had carried out exports on their behalf. The experts also attached as annexes to their report the customs declarations used in the false exports.","7.On 28 October 2001 the applicant Erol Maks Kohen was arrested. He subsequently made detailed self-incriminatory statements to the police and the public prosecutor without a lawyer being present.","8.On 31 October 2001 police officers carried out searches of the premises of two companies belonging to the applicant Erol Maks Kohen (the S. andE. companies) and his archive, which resulted in the discovery of certain documents.","9.On 4 November 2001 E.K. gave statements to the public prosecutor, submitting that he had started working as a driver for the applicant Erol Maks Kohen, who had set up the S. company which had later carried out fictitious exports, in which he and a certain E.D. had been the only two shareholders. Although E.K. had appeared to be the owner of that company, he stated that he had not carried out any actions on its behalf, and submitted further information regarding similar companies that had also been set up in the names of other persons by the applicant Erol Maks Kohen, who had financed and directed all of the companies which had been involved in the fictitious and fraudulent export scheme. E.K. also gave a detailed account of the modalities of the fictitious exports and the persons involved in the scheme, including the methods used to bribe customs officials so that the lorries could exit through the Turkish border gates without any inspections; he explained that the applicant Nail Tahsildaro\u011flu was an accountant who had sent money to the tax inspectors, and that the applicant H\u00fcseyin \u00d6z\u00e7all\u0131 was the customs broker who had drawn up the customs declarations.","10.On a number of dates between 1 November (M.D., E.D. and N.S.) and 7December 2001 (\u015e.K. on 8 November, and K.M.K. and M.K. on 7December), certain other persons also made statements to the police or the public prosecutor or to both, essentially reiterating the content of the statements that E.K. had given on 4 November 2001. It was apparent from that evidence that Nail Tahsildaro\u011flu had dealt with the financial affairs of the scheme as its accountant and that he had attempted to put pressure on some of the above-mentioned persons to alter their statements.","11.On 7 November 2001 the applicants Nail Tahsildaro\u011flu and H\u00fcseyin \u00d6z\u00e7all\u0131 were arrested. They subsequently made self-incriminating statements to the police and the public prosecutor in the absence of a lawyer.","12.On 11 December 2001 Y.K. went to the police of his own motion and gave very detailed explanations concerning persons involved in the scheme, including the applicants, and submitted a set of documents and four floppy disks in support of his claims. In particular, Y.K. submitted that even though the applicant Erol Maks Kohen and his men had made him a shareholder in the V.G. and V.T. companies, he had not signed any of the documents; thus, the signatures that appeared to have been put on the documents on his behalf had all been forged because the applicant Erol Maks Kohen had abused a power of attorney that Y.K. had given to him in respect of the companies\u2019 affairs.","13.On 21 December 2001 the applicant Ezra \u00d6ren was arrested. He subsequently made detailed self-incriminatory statements to the police and the public prosecutor without a lawyer being present.","14.On 27 December 2001 a panel of experts consisting of a senior tax auditor and three tax inspectors carried out an examination of the documents found and seized during the searches carried out on 31 October 2001. The experts found that the applicant Erol Maks Kohen had set up and directed a fictitious and fraudulent export scheme with a view to claiming unjustified VAT refunds from the State via either \u201cdirect export\u201d or \u201cindirect export\u201d. In doing so, the applicant Erol Maks Kohen had used different export channels comprising thirty-one companies, as was demonstrated by the material found and seized during the search, which included the following items: (i)documents relating to some of the thirty-one companies despite the fact that the applicant Erol Maks Kohen had no official role in them; (ii)a document entitled \u201cemergency scenario: who is who\u201d containing an organigram showing the commercial relations between the companies forming part of the scheme; (iii)a list containing information regarding the judicial proceedings initiated against those companies and the names of the judges appointed to those cases; (iv)documents and leasing contracts showing that the factories of the companies which had produced the exported material and their equipment had been leased to the different companies in the scheme on different dates; (v)blank documents stamped by foreign companies which had allegedly imported the goods; (vi)an organigram showing the flow of purchases between the companies belonging to the scheme; (vii)a document with the name of the applicant Erol Maks Kohen\u2019s brother containing a list of possible questions that might be asked in a criminal investigation, and possible answers; and (viii)documents relating to foreign import companies, and correspondence materials in which the applicant Erol Maks Kohen advised the representatives of those companies. The experts concluded that the bogus exports were worth 341,267,805United States dollars (USD), of which the scheme had obtained approximately USD52 million in VAT refunds.","15.On 14 January 2002 the Ankara public prosecutor lodged a bill of indictment dated 14 January 2002 against eighty-five persons, including the applicants. The applicants Erol Maks Kohen and Nail Tahsildaro\u011flu were charged with forming a profit-oriented criminal organisation (Law no.4422), forgery of official and unofficial documents (Articles 342 and 345 of the former Criminal Code (Law no. 765)), and aggravated fraud (Article 504 \u00a77 of the former Criminal Code). The other two applicants (Ezra \u00d6ren and H\u00fcseyin \u00d6z\u00e7all\u0131) were charged with carrying out activities on behalf of a criminal organisation and forgery of unofficial documents.","16.The trial court held its hearings from 26 November 2002 (the preparatory hearing) to 16 September 2009.","17.During the trial, the trial court also obtained an expert report from a panel of three experts on 7 July 2003, and it appears that neither the applicants nor their lawyers were informed of the scope or the subject of the trial court\u2019s request to those experts; they were thus unable to put questions to them. The expert report of 7 July 2003 indicated the amount of the loss of VAT caused by the companies involved in the export scheme and essentially reiterated the findings of the expert report dated 21 September 2001. Importantly, AnnexI to the expert report indicated the number of forged customs declarations in respect of each company.","18.At a hearing held on 10 July 2003, the trial court asked the applicants Erol Maks Kohen, Ezra \u00d6ren and H\u00fcseyin \u00d6z\u00e7all\u0131, and certain other co-defendants to make additional defence submissions in respect of multiple counts of the offence of forgery which were based on a number of customs declarations used in the false exports.","19.At a hearing held on 9 September 2003, the trial court commissioned an expert report to determine whether the signatures on certain indirect export agreements entered into by the M. and \u00d6. companies belonged to the applicant Ezra \u00d6ren.","20.Following objections raised by the defence against the trial court\u2019s commissioning of the expert report (see paragraph 17), the trial court decided to obtain an additional report from the same panel. The experts then submitted a new report dated 27 October 2003, wherein they provided answers in respect of the questions asked and the objections lodged against their report by the lawyers representing the applicants Erol Maks Kohen, Nail Tahsildaro\u011flu and Ezra \u00d6ren, and certain other co-defendants.","21.At a hearing held on 9 October 2003, the trial court gave a statement of the details of the facts on the basis of which it had asked the applicants to submit additional defence submissions, explaining that if the court found that an offence had been committed, it might consider that a separate offence had been committed in respect of each company which had carried out exports. The court further specified that it might cumulate any sentences that it might impose on the basis of the number of customs declarations used by each company. The applicants and the co-defendants adamantly objected to this stance and asked the court to explain the kinds of forgery they had each made in each of the customs declarations.","22.At a hearing held on 5 March 2004, the applicant Ezra \u00d6ren gave evidence in person and was apprised of the details of the information on the basis of which the trial court had asked him to make additional defence submissions with regard to multiple counts of forgery.","23.At a hearing held on 28 May 2004, the applicant H\u00fcseyin \u00d6z\u00e7all\u0131 gave evidence in person and made additional defence submissions with regard to multiple counts of forgery.","24.In an expert report dated 12 July 2004, the experts analysed, inter alia, the signatures contained in certain documents used in relation to the M.company\u2019s exports, and found it highly probable that those signatures belonged to the applicant Ezra \u00d6ren.","25.At a hearing held on 25 September 2008, the trial court invited the lawyers representing the applicants Nail Tahsildaro\u011flu and Ezra \u00d6ren to make additional defence submissions with regard to additional multiple counts of forgery.","26.On 16 September 2009 the Ankara Assize Court gave its judgment. It found that the applicant Erol Maks Kohen had set up and directed a fictitious and fraudulent export scheme with a view to claiming unjustified VAT refunds from the State either via \u201cdirect export\u201d or \u201cindirect export\u201d. The trial court found the applicants guilty of multiple counts of forgery of official documents, namely customs declarations, but held that the prosecution of the other offences had been statute-barred on the expiry of the relevant limitation periods.","27.In its reasoned judgment, which ran to 296 pages, the trial court first indicated the conclusions reached by the different experts, and then listed the contents of the statements of certain defendants and of the applicants (save for H\u00fcseyin \u00d6z\u00e7all\u0131) as evidence (twenty co-defendants, including M.O.E., Y.S.U., B.A., M.K., and K.M.K.), noting that (i)some defendants (the applicant Ezra \u00d6ren, and the co-defendants \u00d6.K., Y.S.U., B.A., M.K., and M.B.) had denied the accuracy of the statements they had made to the police and the public prosecutor, alleging that coercion and undue pressure had been exerted on them to make those statements, and that (ii)some others (the applicant Nail Tahsildaro\u011flu, and four other co-defendants, including M.O.E. and K.M.K.), who had made statements regarding the existence of a scheme and the fictitious and fraudulent nature of the exports, had not given any such explanations at the trial stage. Those allegations and discrepancies led the trial court to assess which statements should be regarded as reliable. In that connection, observing that the first three paragraphs of the written defence submissions of certain co-defendants, including the applicant Ezra \u00d6ren, the above-mentioned five co-defendants, and K.M.K. had been the same, the trial court took the view that the defence submissions of those persons had been organised externally during the trial stage. Referring to the findings contained in the expert reports, the fact that the signatures of Y.K. and N.S. contained in the relevant documents of the V.G., V.T. and N.T. companies had been forged, and the documents found during the search of premises belonging to the applicant Erol Maks Kohen, the trial court concluded that the defence submissions of the applicant Ezra \u00d6ren, the above-mentioned five co-defendants and K.M.K. during the trial had not been truthful.","28.In establishing the existence of a fictitious and fraudulent export scheme headed by the applicant Erol Maks Kohen, the trial court relied in particular on the following elements:","(i)the various expert reports drawn up by tax auditors, tax inspectors, and the Ministry of Finance, attesting, in particular, to the following facts: (a)that manufacturing and sales of goods had not taken place, (b)that the importers who were indicated on the export invoices had either not existed or had denied that the transactions forming the basis of the exports had taken place, (c)that the payment of the fees for the exports had not been made, and (d)that the customs declarations attesting to the exit of goods through customs had not reflected the reality of the situation;","(ii)statements by N.S. to the effect that certain low-quality products had been used as exported goods, which had been kept in customs storage located in the destination countries and had then been \u201cimported\u201d to Turkey;","(iii)written materials found during searches of premises belonging to the applicant Erol Maks Kohen.","29.The trial court went on to examine the different chains of companies involved in the scheme, and reproduced information from the expert reports, before analysing the individual situation of each defendant.","30.In respect of the applicant Erol Maks Kohen, the trial court made the following observations. He had been the owner of the S. and E. companies, and the expert report of 21 September 2001 had revealed that he had set up many other companies on behalf of certain other persons, which companies had been used in the export scheme; that point had also been confirmed by the statements made by the relevant co-defendants. The trial court then listed in detail all of the exports which it considered to be fictitious, and the number of customs declarations in relation to each of them, holding that they had been carried out by the M., \u00d6., V.T. and V.G. companies.","31.The trial court found that the applicant Erol Maks Kohen had accepted, in his statements to the police and the public prosecutor, that he had paid the purchase price for the V.G. and V.T companies through his company, S., which had been registered to other persons, including Y.K. However, later during the proceedings, he had alleged that all the companies had been set up in compliance with the applicable provisions and that the exports, as well as the purchases and sales, had been genuine. The trial court dismissed those submissions with reference to (i)the statements of the other defendants that it had listed in the first part of the judgment, including, in particular those of M.A., N.S., E.K., E.D., M.K. and A.C.H.; and (ii)the findings of the different expert reports to the effect that the applicant Erol Maks Kohen had been the head of the scheme.","32.As regards the applicant Nail Tahsildaro\u011flu, the trial court found it established that he had taken part in the forgery of customs declarations with the applicant. In reaching that conclusion, the trial court relied on the statements that he, fourteen other co-defendants (including M.K. and B.A.), and the applicants Erol Maks Kohen and Ezra \u00d6ren, had made to the police and the public prosecutor, and the facts which had been established as regards the scheme.","33.In respect of the applicant Ezra \u00d6ren, the trial court held that he was the owner of one of the companies involved in the scheme, namely the \u00d6. company, as was demonstrated by the statements made by the applicants Erol Maks Kohen and Nail Tahsildaro\u011flu, and the co-defendants A.C.H. and S.D. More importantly, the expert report of 17 January 2001 had established that the applicant Ezra \u00d6ren\u2019s company had purchased 98 per cent of its goods and services from the B. company, and had issued 97 per cent of its invoices to another company, M. Furthermore, as could be seen from the expert report dated 12 May 2004, the applicant Ezra \u00d6ren had signed the indirect export agreement of the M. company, despite the fact that he had had no role in that company. In view of the above, the trial court found that the applicant Ezra \u00d6ren had taken part in the fictitious and fraudulent exports of the \u00d6. and M. companies.","34.In respect of the applicant H\u00fcseyin \u00d6z\u00e7all\u0131, the trial court held, relying on the statements given by E.K., \u015e.K. and \u015e.P., that he had been a partner of, and a customs broker at, the customs brokerage firm which had been part of the export scheme. The expert report dated 21 September 2001 had also established that that applicant\u2019s duty had been to approve customs declarations concerning the fictitious exports. The trial court further held that the statements made by E.K. and \u015e.K. had been consistent with the statements that the applicant H\u00fcseyin \u00d6z\u00e7all\u0131 had made to the police and the public prosecutor, even though he had later denied them.","35.As regards sentencing, the trial court found that the forgery of customs declarations on behalf of each company had represented a single count for the offence of forgery of official documents; however, where multiple customs declarations had been used on behalf of the same company, they should be regarded as one transaction, but be subjected to an increased penalty. The trial court therefore sentenced each applicant (save for H\u00fcseyin \u00d6z\u00e7all\u0131) to one count of forgery in respect of the company for which they had been held responsible and increased those penalties if the companies in question had used more than one customs declaration. By calculating in this manner the sentences in respect of the customs declarations used by each company (one hundred and ninety-five years and eighty-eight months\u2019 imprisonment in respect of Erol Maks Kohen and Nail Tahsildaro\u011flu, and forty-nine years and ninety-three months\u2019 imprisonment in respect of Ezra \u00d6ren), the trial court then handed down a combined sentence, namely thirty-six years\u2019 imprisonment in respect of each applicant, save for H\u00fcseyin \u00d6z\u00e7all\u0131, who was sentenced to three years and six months\u2019 imprisonment.","36.On 21 April 2010 the Court of Cassation upheld the trial court\u2019s judgment in respect of the applicants but quashed it in so far as it concerned certain other defendants."],"278":["2.The applicant was born in 1951 and lives in Sofia. She was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.","3.The Government were represented by their Agent, Ms R. Nikolova of the Ministry of Justice.","4.The facts of the case may be summarised as follows.","5.On 30 September 2008 three men beat and choked the applicant\u2019s son to death in a park in Sofia. He was then twenty-six years old. They attacked him because they thought that he looked like a homosexual; they had on several previous occasions assaulted other people for that reason.","6.According to the findings of fact made by the domestic courts in the subsequent criminal proceedings (see paragraphs 9-31 below), the three men were members of a group of six secondary-school students who gathered often in a park in Sofia. In the course of their gatherings the group would single out homosexuals known to be frequenting the park and assault them. On several occasions they attacked men whom they perceived as homosexuals, calling their actions \u201ckicking\u201d or a \u201cclean-up\u201d.","7.Between 8 p.m. and 9 p.m. on 30 September 2008 five members of the group met in the park and decided to find a man who looked like a homosexual and to assault him. They split into two groups of three and two people, so as to be better able to ambush their potential victim. Shortly after 9 p.m. they came across the applicant\u2019s son. One of them hit him in the face, knocking him down to the ground. The applicant\u2019s son then got up and tried to run away, but another member of the group ran after him, grabbed his neck and again brought him to the ground, face down. The two attackers, joined by a third, then fell upon the applicant\u2019s son, kicking and hitting him. One of them grabbed his neck and began strangling him, breaking his hyoid bone in the process. The applicant\u2019s son felt pain and screamed. The three attackers then pushed his torso and head to the ground, face down, using their hands and knees. As a result, his nose and mouth were blocked, which prevented him from breathing. This continued for about five minutes. During the first two minutes the applicant\u2019s son tried to resist, but then lost consciousness and subsequently died of mechanical asphyxiation. The first attacker then searched the deceased\u2019s pockets and took his wallet and mobile telephone. A few minutes later he threw away the wallet, but kept the telephone. The three attackers then found the two remaining members of the group and told them what had happened.","8.At about 8 a.m. the following morning a passer-by saw the dead body of the applicant\u2019s son and called the police and an ambulance.","9.The police were able to identify the first attacker through the victim\u2019s mobile telephone, which he had used for some time after taking it (see paragraph 7 in fine above). On 28 May 2010 they interviewed him as a witness, and on 3 June 2010 arrested the three attackers.","10.In 2013-15 two of the attackers were tried for aggravated murder. The third retained the status of a witness. The applicant joined the proceedings as a private prosecutor (acting in parallel to the public prosecutor) and as a civil claimant.","11.In the course of the trial, the public prosecutor argued, inter alia, that the circumstances in which the attackers had killed the applicant\u2019s son indicated that their act had been motivated by their hostility towards people with a different sexual orientation, and by their disregard for the law, morality and human life. In the public prosecutor\u2019s view, that amounted to hooligan motives (\u0445\u0443\u043b\u0438\u0433\u0430\u043d\u0441\u043a\u0438 \u043f\u043e\u0434\u0431\u0443\u0434\u0438) within the meaning of Article 116 \u00a7 1 (11) of the Criminal Code (see paragraph 34 (b) below).","12.The Sofia City Court convicted the two attackers of murder committed with direct intent and in a way particularly painful for the victim, contrary to Articles 115 and 116 \u00a7 1 (6) of the Criminal Code (see paragraphs 33 and34(a) below), but acquitted them of the charge that they had acted from hooligan motives, contrary to Article 116 \u00a7 1 (11) (see paragraph 11 above and paragraph 34 (b) below). It sentenced them to, respectively, thirteen years\u2019 and four years and ten months\u2019 imprisonment. Those sentences were below the minimum lengths prescribed by Article 116 \u00a7 1 in respect of aggravated murder (fifteen years), and by the special sentencing rules applicable to minors (five years \u2013 see paragraph 43 below) (which applied to the second attacker because he had been seventeen years and seven months old when committing the offence; the first attacker could not benefit from those rules as he had been eighteen years and seven months old at the time of the offence). The court fixed those sentences pursuant to a general sentencing rule enabling it to go below the statutory minimum if faced with exceptional or numerous mitigating factors (see paragraph 42 below). Lastly, the court ordered the attackers to pay the applicant 250,000 Bulgarian levs (BGN \u2013 equivalent to 127,823 euros (EUR)), plus interest, in respect of the pain and suffering that she had suffered as a result of her son\u2019s death (see \u043f\u0440\u0438\u0441. \u2116 199 \u043e\u0442 22.06.2015 \u0433. \u043f\u043e \u043d. \u043e. \u0445. \u0434. \u2116 3766\/2013 \u0433., \u0421\u0413\u0421).","13.The court found that in the run-up to the murder the group of which the two attackers had been members had been assaulting people perceived by them as homosexuals. However, it went on to find that the homophobic motives for the assault had not then driven the attackers to escalate their attack to the level of murder. It also held that the evidence did not permit a firm conclusion that their sudden decision to escalate the assault to the level of murder had been based on hooligan motives \u2013 that is to say to demonstrate disrespect towards society or public order.","14.When fixing the length of the two sentences, the court treated as individual aggravating factors (see paragraph 38 below) in relation to both attackers the young age of the victim and the homophobic motives for the assault and the fact that it fell under a pattern of such assaults. It treated as mitigating factors the attackers\u2019 clean criminal records, their \u201cinvolvement in socially-beneficial activities\u201d, and their young age. The court went on to find that there existed, with respect to both attackers, exceptional mitigating factors warranting sentences below the statutory minimum (see paragraph 42 below). For the first attacker, those factors were his very young age when committing the offence (just above eighteen-and-a-half years), and the excessive length of the proceedings. For the second attacker, the sole mitigating factor was the excessive length of the proceedings (since his being less than eighteen years old had already been taken into consideration, given that he was sentenced under the special rules applying to minors \u2013 see paragraph 12 above).","15.All parties appealed against the Sofia City Court\u2019s judgment. The public prosecutor challenged only the sentences imposed on the attackers. The applicant, acting in her capacity as a private prosecutor, appealed against the decision to acquit them of the charge that they had committed the murder for hooligan motives (contrary to Article 116 \u00a7 1 (11) of the Criminal Code), and against their sentences. She argued, in particular, that both the attack on her son and his murder had been driven by the attackers\u2019 homophobia.","16.In its judgment (\u0440\u0435\u0448. \u2116 330 \u043e\u0442 12.07.2017 \u0433. \u043f\u043e \u043d. \u0434. \u2116 84\/2016 \u0433., \u0421\u0410\u0421), the Sofia Court of Appeal upheld the conviction of the two attackers under Articles 115 and 116 \u00a7 1 (6) of the Criminal Code (see paragraph 12 above and paragraphs 33 and 34 (a) below). Its only point of disagreement with the lower court in that respect concerned the form of the mens rea: unlike the lower court, the court of appeal held that the two attackers had not acted with direct intent (to cause death) but rather with oblique intent (that is to say through recklessness):","\u201cThe evidence shows that the two accused and the [remaining three members of the group] were walking [in the park] in order to find a person to \u2018clean up\u2019 or \u2018kick\u2019 \u2013 as they themselves described their actions with respect to people they perceived as homosexuals. Although the [first-instance] court found it categorically established that they [had gone to the park] with the intent to beat up (\u043d\u0430\u0431\u0438\u044f\u0442) a homosexual, it was wrong to hold that during the short time when they were carrying out the attack, both of them suddenly resolved to kill the victim by pushing his torso and head [against the ground]. [This court] finds that the subjective attitude of the accused towards the result [of their actions did not indicate such an intent]. Their direct aim was clearly established\u2013 to beat up a random person whom they perceived (on the basis of criteria known only to themselves) as a homosexual. There is no evidence that on previous occasions ... the accused had sought to cause death. The manner in which the incident unfolded categorically excludes the possibility that the two suddenly resolved to cause death. At first the accused were acting sequentially, with [the first attacker] taking the leading role. He clearly manifested his wish to prove his manliness, and attacked the victim without warning. He punched [the victim\u2019s] face ... His mindset towards those actions was no different from [that which gave rise to] his initial intention. The [second attacker] joined [the first], and brought the victim to the ground. He had the same mindset [as that of the first attacker] towards his actions. Both accused wished to cause the victim some sort of physical harm. Their aim was to hit him, and the injuries on the victim\u2019s body demonstrate that. After they brought the victim to the ground, the dynamics of the situation changed. The victim\u2019s physical characteristics rendered it necessary for all attackers to push [down on] him to immobilise him. At that point the victim\u2019s hyoid bone was broken; it remains unclear which one of the attackers did that, but the way in which that happened does not suggest that the two accused suddenly resolved to kill him. Nothing in their subjective attitude changed, except that after they managed to immobilise the victim and push him [to the ground], the two began to speculate on whether the victim might suffocate. They did not directly intend for that to happen (although it became more and more likely as they increased the pressure), but they accepted that it could happen. Each of them was aware that by blocking the [victim\u2019s] airways they were [preventing him from] breathing. Their gratuitous hatredfor the victim, caused by their lack of any intelligence and their improper sense of self-importance and superiority vis-\u00e0-vis people whom they saw as different, drove them to press [the victim] against the ground. They both realised that as a result of the protracted lack of air he could die. They were, however, fully indifferent to that result, which became likely, and kept up the pressure, which ultimately [resulted as it did]. They did not directly seek to cause [the victim\u2019s] death, but they acquiesced to it, realising that it was possible. ...\u201d","17.The court went on to uphold the acquittal of the two attackers on the charge that they had acted from hooligan motives, contrary to Article 116 \u00a71(11) of the Criminal Code (see paragraphs 11 and 12 above and paragraph34 (b) below):","\u201c[This court] is of the view that the accused were not prompted by hooligan motives, [and realised] that their act showed disregard not only for the person and life of the victim, but also for public order and society. The accused\u2019s act was carried out in a public space, but it cannot be said that it was indecent and targeted the general interests of society. Their act was not committed in front of many people, and was directed exclusively against the victim\u2019s person. This was a brutal assault which led to serious and irreversible consequences. It did not, however, express overt disrespect towards society, but simply disregard for someone else\u2019s physical integrity. The accused\u2019s act manifested their hatred for homosexuals, which means that they were prompted by homophobic motives rather than hooligan ones.\u201d","18.The court nonetheless increased the sentences to, respectively, fifteen and six years\u2019 imprisonment, on the basis of its own view of the interplay of aggravating and mitigating factors, and its finding \u2013 which differed from that of the lower court (see paragraph 14 above) \u2013 that there were no exceptional mitigating factors warranting sentences below the statutory minimum (see paragraph 42 below).","19.With respect to the first attacker, the court highlighted the gratuitous cruelty that he had demonstrated, the fact that he had taken the initiative to attack, and the fact that he had taken and subsequently used the victim\u2019s mobile telephone. It also noted both the fact that the attack had resulted from a preconceived plan to assault anyone perceived by the group as a homosexual, and the complete lack of remorse on the part of the first attacker and his subsequent efforts to conceal his participation in the events. For the court, neither the young age of the culprit nor the length of the proceedings constituted exceptional mitigating factors warranting a sentence below the statutory minimum (fifteen years). It was, however, proper to fix his sentence at that minimum.","20.With respect to the second attacker, the court noted, in particular, his active participation in the attack \u2013 fully commensurate with that of the first attacker \u2013 and the evidence that he had then been content with his actions. The length of the proceedings was not an exceptional mitigating factor in relation to him either. There were hence no grounds to go below the statutory minimum applicable to him as a minor (five years \u2013 see paragraph 43 below) either. The appropriate sentence, in view of, in particular, his degree of dangerousness, was slightly above that minimum.","21.Lastly, the court quashed the lower court\u2019s decision regarding the applicant\u2019s claim for damages, noting that the applicant had sought BGN250,000 from each of the attackers rather than a total of BGN 250,000 from both of them. It referred that aspect of the case back to the first-instance court for re-examination.","22.The two attackers and the applicant appealed on points of law. The applicant challenged the Sofia Court of Appeal\u2019s rulings on the form of the mens rea and on the absence of hooligan motives, and the length of the sentences that it had imposed (see paragraphs 16-20 above).","23.On 21 June 2018 the Supreme Court of Cassation upheld the two rulings of the Sofia Court of Appeal challenged by the applicant, as well as the remainder of the appellate judgment, but reduced the sentences of the two attackers to, respectively, ten and four-and-a-half years\u2019 imprisonment (see \u0440\u0435\u0448. \u2116 39 \u043e\u0442 21.06.2018 \u0433. \u043f\u043e \u043d. \u0434. \u2116 1258\/2017 \u0433., \u0412\u041a\u0421, III \u043d. \u043e.).","24.The court noted, in particular, that the lower courts\u2019 finding that the attackers had been members of a group assaulting people perceived by them as homosexuals (see paragraph 13 above) had a solid basis in the relevant evidence. It went on to hold that the court of appeal had been correct to find that the attackers had acted with oblique rather than direct intent (see paragraph 16 above):","\u201c[The] established aim of the [attackers] was to assault people with homosexual orientation without the intention to cause their death. There is no evidence that the victim was attacked with a view to being killed, which is why the court of appeal correctly characterised the form of the mens rea as [one of] oblique intent, and its decision to correct [the first-instance court] on that point was fully based on the findings regarding the mental attitude of the [attackers] towards [their] actions. This must be reflected in ... an assessment of whether their sentences are just.\u201d","25.The court held as follows with regard to the alleged hooligan motives within the meaning of Article 116 \u00a7 1 (11) of the Criminal Code (see paragraph 11 above and paragraph 34 (b) below):","\u201cSince the [attackers] fell upon the victim because they thought that he had a different sexual orientation, their motives and intentions could be defined as homophobic, as found by the [first-instance] court, but their actions ... were not preceded, accompanied or followed by acts of hooliganism, so as to engage ... Article 116 \u00a7 1 (11) of [the Criminal Code]. It is well-established that \u2018for a murder to be characterised as having been committed for \u2018hooligan motives\u2019, it is necessary for the offender to have carried out indecent actions that grossly violated public order and showed overt disrespect towards society, and for those actions to have motivated and driven him [or her] to commit the murder itself\u2019 .... [It is also settled] that the mere fact that a murder has been committed for no apparent reason is not sufficient to find that it has been committed for hooligan motives ...\u201d","26.As for the sentences, the court found the Sofia Court of Appeal\u2019s assessment (see paragraphs 18-20 above) unduly harsh, and agreed with the first-instance court that there were grounds to fix them below the statutory minimum (see paragraph 14 above and paragraph 42 below).","27.With respect to the first attacker, the court highlighted his young age at the time of the offence, his clean criminal record, and the excessive length of the proceedings. It went on to note that he had a good employment record and was in a poor state of health (\u0432\u043b\u043e\u0448\u0435\u043d\u043e \u0437\u0434\u0440\u0430\u0432\u043e\u0441\u043b\u043e\u0432\u043d\u043e \u0441\u044a\u0441\u0442\u043e\u044f\u043d\u0438\u0435). For the court, those amounted to numerous mitigating factors warranting a sentence below the statutory minimum. The excessive length of the proceedings even constituted grounds in itself to go below that minimum, and thus compensate the first attacker for the excessiveness of that length. An overall assessment of his conduct, and in particular the facts that he had taken the victim\u2019s wallet and mobile telephone and had later tried to conceal his participation in the offence by suborning witnesses, led to the conclusion that it was appropriate to sentence him to ten years\u2019 imprisonment.","28.With respect to the second attacker, the court found that the excessive length of the proceedings, his clean criminal record, and his good character amounted to numerous mitigating factors warranting a sentence below the statutory five-year minimum applicable to him as a minor (see paragraph 43 below). The main factor in that respect remained the length of the proceedings. However, since the second attacker had been almost an adult at the time of the offence, it was appropriate to set his sentence at just six months below that minimum.","29.The court went on to say that the applicant\u2019s request for an increase in the two sentences was unfounded. That request had been based on her arguments that her son\u2019s murder had been committed with direct intent and for hooligan motives, both of which allegations had been rejected (see paragraphs 22-25 above). Her further arguments that the seriousness of the offence and the degree of culpability of the attackers called for harsher punishments could not alter the assessment of the factors taken into account in fixing the length of their sentences below the statutory minimum.","30.Having re-examined the applicant\u2019s claim for damages, as instructed by the Sofia Court of Appeal (see paragraph 21 above), and having obtained a clarification from the applicant that she sought a total of BGN 500,000, plus interest, the Sofia City Court on 8 March 2019 ordered the two attackers to pay her jointly BGN 250,000 (equivalent to EUR 127,823), plus interest, in respect of the pain and suffering caused by her son\u2019s murder. The court noted that the prohibition against reformatio in pejus, which applied also to civil claims, prevented it from awarding more than BGN 250,000 at that stage of the proceedings, since the applicant had not appealed against its initial decision to award that sum (see paragraphs 12 and 15 above) (see \u043f\u0440\u0438\u0441. o\u0442 08.03.2019 \u0433. \u043f\u043e \u043d. \u043e. \u0445. \u0434. \u2116 2925\/2018 \u0433., \u0421\u0413\u0421).","31.Following appeals by the applicant and the two attackers,on7October 2019 the Sofia Court of Appeal upheld the bulk of the first-instance court\u2019s judgment but reduced the award to BGN 200,000 (equivalent to EUR 102,258), plus interest, on the basis that this was more consistent with the awards normally made in such cases (see \u0440\u0435\u0448. \u2116 373 \u043e\u0442 07.10.2019 \u0433. \u043f\u043e \u0432. \u043d. \u043e. \u0445. \u0434. \u2116 874\/2019 \u0433., \u0421\u0410\u0421). That judgment was apparently not appealed against and became final.","32.In 2020 the applicant brought enforcement proceedings against the two attackers to secure the payment of that sum. By the end of November2021 (the last time that the Court received any information from her on that point) she had been unable to secure any payments from them."],"279":["2.The applicant was born in 1964 and lives in Linz. She was represented by Mr H. Graupner and MrJ. Ph.Bischof, lawyers practising in Vienna.","3.The Government were represented by their Agent, Ambassador H.Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.On the night of 7 May 2016, a taxi driver notified the police because his passenger, the applicant, said that she could not pay the fare as she did not have any cash with her and had forgotten the PIN number for her debit card. The police officers arriving at the scene explained the next steps to the applicant, namely that her personal details would be recorded and that she could pay the fare the next day, but failure to do so would result in a complaint being filed against her. The applicant then became agitated and started to shout at the police officers. As they could not calm her down, they told her that she was being arrested. The applicant attempted to resist arrest by repeatedly hitting the chest of one of the police officers with her hands. Although she applied a certain physical force, she did not injure the police officer. She was subsequently arrested and later examined by the medical officer (Amtsarzt) who indicated that she was fit to undergo detention and had the legal capacity to commit an offence (Haft- und Deliktsf\u00e4higkeit), but added that this could not be determined with absolute certainty. On the grounds that the applicant had psychotic episodes and was a danger to others when she had such a flare-up of aggression, the medical officer ordered the applicant\u2019s committal to hospital (Parere). The arrest by the police was revoked after the public prosecutor ordered that charges be pressed against the applicant without an arrest being made.","6.Still on the same day, 7 May 2016, the applicant was taken to the Neuromed Campus of the Kepler University Clinic. The placement proceedings (Unterbringungsverfahren) conducted there by the Linz District Court (Bezirksgericht) led to the applicant being placed in the high-security ward under the Act on the Placement of Mentally Ill Persons in Hospitals (Hospitalisation Act) (Bundesgesetz \u00fcber die Unterbringung psychisch Kranker in Krankenanstalten, Unterbringungsgesetz). DrM.F., a specialist in psychiatry and neurology, was commissioned to submit an expert opinion on the question whether the applicant met the requirements for a placement, as set out in section3(1) and(2) of the above\u2011mentioned Act (see paragraph35 below).","7.In an expert opinion of 17 May 2016, DrM.F. concluded that the requirements for such a placement were met. The applicant was known to have been suffering from a schizoaffective disorder for years, with the first known institutional inpatient stay dating back to 2006, although she denied any such incidents or any mental disorder. Elements of danger to third parties due to psychosis were present, with the applicant acting as if she was out of touch with reality, and showing an inclination towards aggressive reactions. Given the applicant\u2019s lack of awareness of the fact that she was suffering from a disorder, and her lack of understanding of her need for treatment, DrM.F. considered that a voluntary hospital stay was not an option.","8.On 23 May 2016 the Linz District Court ordered the applicant\u2019s placement until 20June 2016, on which date the placement was terminated.","9.On 24 November 2016 further placement proceedings were instituted against the applicant by the Linz District Court, after her neighbours had alerted the police as the applicant had, in her apartment, been ranting and raging, talking to herself, and having paranoid ideas and fantasies about killing. In a (second) expert opinion of 15January 2017, DrM.F. concluded that the applicant had been suffering from a mental disorder for many years, which now had to be classified as \u201cparanoid schizophrenia\u201d. As the applicant had recently agreed to taking medication, it was to be assumed that the requirements for a placement, specifically the elements of being a danger to others, would not continue beyond the date of the upcoming hearing. The applicant\u2019s second placement lasted from 24November 2016 until 23January 2017, on which date that placement was terminated.","10.On 11 October 2016, that is, prior to the second placement proceedings (see paragraph9 above), the Linz public prosecutor\u2019s office (Staatsanwaltschaft) instigated preliminary proceedings against the applicant for the offences of attempted resistance to State authority (Widerstand gegen die Staatsgewalt), under Articles15 and 269 of the Criminal Code (see paragraphs27 and31 below), and fraud (Betrug), under Article146 of the Criminal Code (see paragraph30 below), in connection with the incident of 7May 2016 (see paragraph5 above).","11.DrW.S., a specialist in neurology and psychiatry, was appointed as the psychiatric expert and was commissioned to submit his findings on whether the applicant had been criminally liable under Article11 of the Criminal Code (see paragraph26 below) at the time of the offence on 7May 2016, and on whether the requirements for confinement in an institution for mentally ill offenders under Article21 \u00a7 1 or Article21 \u00a72 of the Criminal Code (see paragraph28 below) were met, in particular how far offences with serious consequences, such as grievous bodily harm or death threats, would have to be expected in the future.","12.In an expert opinion prepared on 16November 2016 and formally submitted on 7December 2016, which was based on the files alone, because he was not able to carry out a face\u2011to\u2011face examination as the applicant did not obey a summons to her examination shortly before her second placement began (see paragraph9 above), DrW.S. concluded that the applicant suffered from a schizoaffective disorder. Judging by her ability to control her actions (Steuerungsf\u00e4higkeit), she had, at the time of the offence, been closer to not being criminally liable than to being liable. However, her ability to act in accordance with an understanding of the wrongfulness of her actions (Dispositionsf\u00e4higkeit) had not been totally absent. The applicant had thus been criminally liable at the time of the offence. The offence she had been charged with (resisting the police) was not the result of any serious mental or emotional disorder (seelisch-geistige Abartigkeit). DrW.S. concluded that he was not able to make any prognosis about any future offences with serious consequences.","13.On 5 January 2017, that is during the applicant\u2019s second placement (see paragraph9 above), the Linz public prosecutor\u2019s office charged the applicant with the offence of attempted resistance to State authority under Article15 \u00a71 and Article269 \u00a71 of the Criminal Code (see paragraphs27 and31 below).","14.In a submission of 9 February 2017, the applicant\u2019s defence lawyer lodged a request to be permitted to produce evidence by obtaining a psychiatric and neurological expert opinion aimed at proving that, at the time of the offence, the applicant had lacked capacity for criminal responsibility as defined in Article11 of the Criminal Code (see paragraph26 below). He argued that DrW.S. had not personally examined the applicant, and objected to his expert opinion being used and the same expert being commissioned again. He reiterated that request during the trial hearing of 13February 2017 before the Linz Regional Court (Landesgericht).","15.The Regional Court acceded to the request and ordered another psychiatric expert opinion. In its reasoning, it held that the new expert opinion was commissioned because the opinion provided by DrM.F. in the first placement proceedings (see paragraph7 above) had stated that elements of being a danger to others owing to psychosis had been present; moreover, the applicant had had to undergo another inpatient stay in hospital (see paragraph9 above) after Dr W.S. had prepared his expert opinion.","16.On 1 April 2017, Dr A.K., a specialist in psychiatry and neurology and head of the Forensic Department of the Neuromed Campus of the University Clinic Linz and authorised to teach at university on the basis of a post\u2011doctoral lecturing qualification (venia docendi), submitted her twenty\u2011nine\u2011page long expert opinion based on her own examination of the applicant. She concluded that the applicant had already been suffering from a schizophrenic disorder in2001. Given the multifaceted manifestation of her symptoms, the bizarre subjects of her delusions, her varied hallucinations, her total lack of motivation, her complete social withdrawal, her total loss of the capability to perform socially and of the ability to take care of herself, this had to be classified as undifferentiated schizophrenia. The applicant\u2019s schizophrenic disorder was chronic, she had no awareness of suffering from a disorder and did not accept the necessary treatment. She had repeatedly and without authorisation stopped taking the prescribed medication in the past. At the time of the offence, the applicant had been overcome by her disorder to such an extent that she had no longer had any connection to reality, which is why she had no longer been able to assess the situation in a way that would conform to reality, or to make deliberate decisions or draw conclusions which were not influenced by her disorder. DrA.K. concluded that, consequently, the applicant had not been criminally liable. With respect to acts of aggression in the future, she considered that the applicant had to be classified as high-risk, as a consequence of, among other things, her lack of awareness of suffering from a disorder, her negative attitude towards treatment, the vast range of existing active symptoms, her documented difficulty in controlling her impulses and the lack of success in treatment so far. This was likely to present a danger to neighbours, caregivers and police officers who could become random victims of serious attacks. DrA.K. finally noted that the medical requirements for confinement under Article21 \u00a71 of the Criminal Code (see paragraph28 below) were met as mere outpatient treatment would not be sufficient at that time.","17.On 19 April 2017 the Linz public prosecutor\u2019s office, on the basis of DrA.K.\u2019s expert opinion, replaced the criminal charges against the applicant (see paragraph13 above) with a request for her detention as a preventive measure, that is her confinement in an institution for mentally ill offenders (Einweisung in eine Anstalt f\u00fcr geistig abnorme Rechtsbrecher) under Article21\u00a71 of the Criminal Code (see paragraph28 below). The applicant was arrested on 8May2017 and, on the following day, was again taken to the Neuromed Campus of the Kepler University Clinic. The Linz Regional Court ordered her provisional detention (vorl\u00e4ufige Anhaltung) under Article429 \u00a74 of the Code of Criminal Procedure (see paragraph34 below).","18.During the trial hearing of 8 August 2017, the applicant, represented by a new defence lawyer, was examined, as were the witnesses, and all of the above\u2011mentioned expert opinions (see paragraphs7, 9, 12 and16 above) were read out. DrA.K. explained her opinion in detail, maintaining it in full and addressing the opinions submitted by DrW.S. and DrM.F. with regard to the differences in their conclusions.","19.By a judgment of 8 August 2017, the Linz Regional Court held that the applicant had committed an offence which, had she been criminally liable at the time of the offence, would have had to be attributed to her as the offence of attempted resistance to State authority under Article15 \u00a71 and Article269 \u00a71 of the Criminal Code (see paragraphs27 and31 below). Furthermore, the applicant had committed this offence under the influence of a state of mind which excluded criminal liability under Article11 of the Criminal Code (see paragraph26 below), resulting from a serious mental or emotional disorder, namely undifferentiated schizophrenia. As it had to be feared that the applicant would commit further punishable offences with serious consequences, the court ordered her confinement in an institution for mentally ill offenders under Article21 \u00a71 of the Criminal Code (see paragraph28 below). The court based its findings regarding the applicant\u2019s criminal liability and dangerousness above all on the expert opinion provided by DrA.K., which was found to be conclusive and comprehensible and free from contradictions and uncertainties.","20.The applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) against the judgment and an appeal against the sentence, and a request to be permitted to produce evidence by obtaining a further psychiatric expert opinion under Article127 \u00a73 of the Code of Criminal Procedure (see paragraph27 below), aimed at proving that she was not dangerous within the meaning of Article21\u00a71 of the Criminal Code (see paragraph28 below). She also lodged an individual application to challenge the constitutionality of the law (Parteienantrag auf Normenkontrolle) with the Constitutional Court (Verfassungsgerichtshof).","21.On 6 March 2018 the Constitutional Court declined to deal with the application for lack of prospects of success. It referred to the limits set by the legislature in Article21 \u00a7\u00a71 and3 and Article25 \u00a7\u00a71 and3 of the Criminal Code (see paragraphs28\u201129 below) in respect of ordering preventive confinement, and those with regard to persons remaining in preventive confinement which, with due consideration being given to the dangerousness of the person concerned, prevented disproportionate confinement in an institution. It further found that the statutory rules of Article21 \u00a71 of the Criminal Code (see paragraph28 below) were not indeterminate or arbitrary, and that the legislature had thus made use of its discretion in a manner which was irreproachable under constitutional law.","22.On 27 June 2018 the Supreme Court (Oberster Gerichtshof) rejected the applicant\u2019s plea of nullity and referred the case to the Linz Court of Appeal (Oberlandesgericht) for a decision on the appeal. It considered that the applicant had presented arguments for an appeal but not for nullity; further, the applicant had failed to lodge a request under the first sentence of Article127 \u00a73 of the Code of Criminal Procedure (see paragraph27 below), in accordance with which doubts about the expertise of an expert must first be dispelled by questioning the expert in question, and if this failed to achieve the desired result, by consulting another expert.","23.On 6 August 2018 the Linz Court of Appeal dismissed the applicant\u2019s request to be permitted to produce evidence by obtaining a further psychiatric expert opinion. It considered that the Regional Court had already correctly pointed out why the earlier expert opinions, geared towards different statutory requirements, had not been able to call into question the expert opinion obtained in the present proceedings and based on an in-person examination. There was thus no contradiction between the expert opinions and there were no deficiencies in terms of substance within the meaning of Article127 \u00a73 of the Code of Criminal Procedure (see paragraph27 below) which would have necessitated a further expert opinion.","24.Given the lapse of time since the preparation of the most recent expert opinion (see paragraph16 above), the Court of Appeal requested a supplementary opinion thereto on the question whether the requirements for conditional release were (now) met. On 30July 2018 DrA.K. found \u2013 after another face\u2011to\u2011face examination \u2013 that the applicant was still suffering from undifferentiated schizophrenia and was, at that time, not in remission. She further maintained her previous conclusions, including that there was a still a high probability of offences with serious consequences being committed in the future and that therefore, the psychiatric requirements for confinement in an institution under Article21 \u00a71 of the Criminal Code (see paragraph28 below) were met. On this basis, the Court of Appeal held that conditional suspension of confinement was not a viable option at the time.","25.On 15 October 2020 the Linz Regional Court ordered the applicant\u2019s conditional release by 30October 2020, imposing specific requirements and a probationary period of five years. No further details about the applicant\u2019s mental health condition or the expert opinions obtained in the context of her release were provided by the parties."],"280":["2.The first and second applicants, Ms Neima Aden Alleleh and MrRolfErik Kristensen, were born in 1983 and 1967 and live in Oslo. They submitted their application also on behalf of their four children, who were born in 2005, 2009 and 2013 \u2013 the third to sixth applicants. All applicants were represented before the Court by Mr A. Humlen, a lawyer practising in Oslo.","3.The Government were represented by Mr M. Emberland and Ms H.L. Busch of the Attorney General\u2019s Office (Civil Matters) as their Agent and co\u2013Agent respectively.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.The first applicant arrived in Norway and applied for asylum on 10September 2001 under the pretext of being Somali. She gave a detailed and, as discovered later \u2013 false, account of her personal history in order to obtain asylum.","6.The Directorate of Immigration (Utlendingsdirektoratet) rejected her application on 13 June 2002, on the grounds that, based on the information she had given, she had no well-founded fear of being persecuted in Somalia. The Immigration Appeals Board (Utlendingsnemnda) dismissed her appeal on 2 January 2003.","7.The first applicant remained in Norway after the dismissal of her appeal, although it was stated in the decision that she had to leave the country, and on 22 May 2003 requested that the Board\u2019s decision to refuse her asylum be revised. In the request she stated that she had previously given false information and she gave a new and different false explanation as to why she needed asylum nonetheless \u2013 still claiming to be Somali. She also presented false identity papers. The Board made a decision not to revise the refusal on 24November 2005.","8.In the meantime, in 2002, while the above-mentioned administrative proceedings were pending, the first applicant met the second applicant, a Norwegian citizen. The couple married on 10 April 2004, at a time when the first applicant did not have lawful residence in Norway. Less than two weeks later the first applicant applied for residence on the basis of the marriage. In that context, both on the application form and during questioning, she restated the same false information that she had provided when requesting revision of the Immigration Appeals Board\u2019s decision in 2003 (see the preceding paragraph). On 13 September 2005 she was granted temporary residence for one year.","9.In the meantime, in February 2005, the first applicant gave birth to the couple\u2019s first child.","10.On 1 November 2006 the temporary residence permit (see paragraph 8 above) was renewed for another year.","11.In 2007 the first applicant applied for and was granted Norwegian citizenship. She applied under the pretext of being a Somali citizen and signed in the application form, dated 16 August 2007, that the information she gave was correct and complete and that a decision on citizenship could be revoked if she had given incorrect information or concealed vital information relevant to the decision.","12.In 2009 the first applicant gave birth to the couple\u2019s second and third children, who are twins.","13.In 2013 the first applicant gave birth to the couple\u2019s fourth child.","14.In the context of a general inquiry into issues relating to persons who, in the course of immigration proceedings, had claimed to be Somali, the police became suspicious that the first applicant was a Djiboutian national. When questioned in June 2014 she maintained the false information that she had previously given.","15.In November 2014 the first applicant was warned about a possible withdrawal of her Norwegian citizenship and expulsion. In a statement the following month, for the first time she gave her correct identity and the correct information about her country of origin to the authorities.","16.On 3 June 2015 the Directorate of Immigration withdrew the first applicant\u2019s Norwegian citizenship.","17.On 26 November 2015 the first applicant was expelled from Norway with a two-year ban on re-entry.","18.The first applicant lodged an administrative appeal against the withdrawal of her Norwegian citizenship and the expulsion to the Immigration Appeals Board. In a decision of 2 March 2016 the Board dismissed her appeal.","19.The Board stated that it deemed that, if the first applicant would go to Djibouti without the family, the second applicant would be able to adequately provide for the children in Norway. No information had emerged to indicate that the second applicant was not a good and capable carer for them. Moreover, the Board assessed what the children\u2019s situation would be like if the whole family chose to move to Djibouti. As a general starting point it noted in that context that parents are able to follow up on their children in settings where they know the language and the cultural codes, and where they have or quickly can establish a network. In the instant case, the children lived with their parents who were able to provide them with care and in the event of a move to Djibouti, they would still do so. They also already had a family network in Djibouti. The Board therefore considered that the parents would be able to take care of the children, regardless if they all moved to Djibouti or not.","20.In its examination of the proportionality of an expulsion, the Board also found that the burden it would entail for the children in the instant case would not exceed what would normally be the case when a parent is expelled. The Board noted that, if the first applicant\u2019s family did not travel with her to Djibouti, an expulsion would be negative for the children, if however possibly somewhat mitigated by the fact that the second applicant and the children could still go on holidays there. Based on an overall assessment, the Board still found that the factors that weighed in favour of expulsion had to be decisive and override the best interests of the children. In particular, it considered that the unlawful behaviour of the first applicant was so serious that she had to be expelled and that considerations relating to general deterrence and respect of the law weighed so heavily in the case that the interests of the applicant and her family had to yield. It also took into account that the first applicant had connections to her home country and that the second applicant would give the children the care they needed if they remained in Norway.","21.Several requests to reopen the Board\u2019s decision were since refused.","22.On 16 June 2016 all six applicants instituted proceedings before the Oslo City Court (tingrett) in order to have the expulsion set aside. The decision to withdraw the first applicant\u2019s Norwegian citizenship was not brought before the courts.The City Court appointed a psychologist as an expert in order to protect the children\u2019s rights during the proceedings.","23.On 27 October 2016 the City Court declared the case inadmissible as far as the second to sixth applicants were concerned, as it found that they did not have legal standing to bring the decision relating to the first applicant\u2019s expulsion for review before the domestic courts. Their appeals against that decision were fruitless \u2013 the final decision of the Supreme Court on that matter dates from 7 June 2017 \u2013 and in the subsequent course of the domestic proceedings on the merits, the second to sixth applicants therefore acted only as interveners (partshjelpere) in the first applicant\u2019s case.","24.On 27 July 2017 the City Court \u2013 having held a hearing on 14 and 15June 2017, where four witnesses, in addition to the court-appointed expert, gave evidence \u2013 gave judgment on the merits and ruled in favour of the Government.","25.In its judgment, the City Court stated, inter alia, that it was beyond doubt that the first applicant\u2019s gross and repeated violations of the Immigration Act were intentional and serious, and that the number of her different acts and the length of her behavioural pattern over approximately 13years substantiated the seriousness. To the City Court it was pertinent to point out that, upon having established a first false identity and presented a first false story, the first applicant had established another false identity and presented another false story, and that she had methodically obtained and used false documents.","26.In respect of the first applicant, the City Court did not consider the expulsion disproportionate. It took into account that she had her mother and a sister in Djibouti and that she had been visiting in Djibouti after she came to Norway. She knew the culture, spoke the language and would do fine there. She could receive visits from Norway or meet her family in other places outside the Schengen-area during the time of the ban from re-entry. When the ban would lapse, she could apply for family reunification. Moreover, it was possible to exercise family life in Djibouti if her family wanted to take residence there.","27.As to the second applicant, the City Court considered that he could choose to go to Djibouti and keep the family together there. If he chose to remain in Norway he would have a considerable task in providing all the four children with care, but it was not a task that was either insurmountable or entirely unusual. The family was established in a good local environment where it was safe and simple to live, and they would have access to public services should they need any. The second applicant would probably have to adjust his working situation and perhaps the family\u2019s financial situation, but that could be considered neither disproportionate nor unreasonable, given that they had established their family based on serious violations of the law, which the second applicant had been aware of for a very long time, from before they had the three last children.","28.Turning to the children, the City Court stated that being separated from their mother for a longer period of time would lead to sadness, confusion, longing and insecurity. This type of strain was obviously undesirable in respect of any child and would not promote the child\u2019s development. It was however the consequence that would follow for any child in any family where a primary care person was expelled and in that sense not a burden that was particularly heavy and disproportionate in this individual case. There was no doubt that the children had had a secure upbringing by their parents in a local environment, with kindergarten, school, hobbies and friends, which they knew and in which they felt safe. The first applicant had been the central care person in the home, but the children were also closely attached to the second applicant.","29.It was clear, moreover, that the second applicant was a good parent and that the children had not suffered any particular stress in their upbringing. In that sense their situation was different from that of the children in the case of Nunez v. Norway (no. 55597\/09, 28 June 2011), where the Court had found that an expulsion had entailed a violation of Article 8 of the Convention on the basis of \u201cconcrete and exceptional circumstances\u201d which had consisted of the children already having suffered separations from and moving between the parents.","30.The oldest son was at the time of the City Court\u2019s judgment 12 years old. He was a normally functioning boy without any unusual needs or problems and it was undisputed that he was very sad because his mother might have to leave them. The City Court considered that the threshold for disproportionality had not been passed, as he was well functioning, resourceful and would continue to live with his father and his siblings in the environment that he knew where he had school and leisure activities.","31.The twins were seven years old. One of them appeared as a somewhat vulnerable and worried boy, who had had nightmares after having learnt of the fact that his mother might have to leave. He had always been particularly close to his mother and had told a court-appointed expert that he would like to come with her if she had to go away. The City Court found that the threshold for disproportionality had not been passed in respect of him either, having regard to the considerations relating to immigration control. Moreover, it took note that the parents could let him follow along with the mother, and, did they not, he would also be in his usual environment with his father and siblings, school and leisure activities.","32.The other twin had some issues with concentrating which had deteriorated lately. He needed more help and support with schoolwork and other tasks than his twin brother. He had not expressed himself clearly to the expert about the topics of the case, but the City Court without further ado deemed that he wanted to have his mother with him and his family life preserved. It found that the threshold for disproportionality had not been passed in respect of him, having regard to the considerations relating to immigration control and taking account of the fact that his difficulties were not serious. The City Court also gave importance to the fact that he would be surrounded by his father and his siblings in his ordinary environment with school and leisure and that his father had good capacity to provide him with the necessary follow up in cooperation with his school and possibly other services.","33.The youngest child was four years old. She had been home with the first applicant and not attended kindergarten, partly for financial reasons and partly because the first applicant had wanted to have company during the daytime. She was closely attached to her mother and to be without her on a daily basis for two years would be a clear strain on her. The City Court nonetheless found that the threshold for disproportionality had not been met in respect of her either; she was well functioning and had normal resources, she would stay with her father and her brothers in her usual environment, and possibly go to kindergarten during the daytime. The first applicant had argued that it had to be taken into account that she would bring the daughter with her to Djibouti and that a risk of female genital mutilation could arise there. The City Court did not agree as it pointed out that they could alternatively let the girl remain with the father in Norway where she would be cared for adequately.","34.The first applicant appealed against the Oslo City Court\u2019s judgment, and the Borgarting High Court (lagmannsrett) reappointed the psychologist to act as an expert (see paragraph 22 above). It held a hearing on 12 and 13March 2019, where the first and second applicants gave evidence. Two witnesses, in addition to the court-appointed expert, also gave evidence.","35.On 8 April 2019 the Borgarting High Court gave a declaratory judgment to the effect that the expulsion decision was invalid, as it considered it disproportionate vis-\u00e0-vis the children. The High Court reiterated that the Court had stated, in Nunez (cited above, \u00a7 70), that where family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the hostState would from the outset be precarious, the removal of the non-national family memberwouldbe incompatible withArticle 8only in \u201cexceptional circumstances\u201d. It found however that no elevated threshold of disproportionality could be applied to the case because of the precariousness of the applicant\u2019s family life, as the second applicant had only learnt of the first applicant\u2019s having given false information after they had married and had the third applicant. The High Court stated that it would instead carry out a concrete balancing of the competing interests.","36.In so doing, the High Court found that, in contrast to the case of Nunez, cited above, the children in the case before it had a stronger connection to their mother than their father. The first applicant had been and was at the time of the High Court\u2019s judgment the daily provider of care to the children. She had been at home for a long time, while the second applicant worked a lot and late hours. It was the first applicant who helped the children with their homework and who cooked dinner. It was to her that the children related on a daily basis at home. Although the children had a good relation to the second applicant, it appeared to the High Court that an expulsion of the first applicant would entail a disruption from their closest care person.","37.The expert psychologist (see paragraphs 22 and 34 above) had spoken with the children on two occasions. In January 2017 they had expressed that they were so connected to where they lived that they wanted to remain there. In October 2018 they had all expressed that they would come along if the first applicant had to move, but they wanted in that case also that the second applicant came along. The psychologist had gotten the impression that the children had little knowledge as to what a move to Djibouti would entail. According to her, the children had all expressed that if the first applicant were to move without them, they did not know how matters would turn out since the second applicant worked all day.","38.The High Court deemed that all of the children were generally well functioning and had developed normally. However, the twins were somewhat vulnerable. They had each had their challenges, one with anxiety, nightmares and dependency issues, the other with motor issues and bullying. The first and second applicants had stated that the twins\u2019 problems had been accentuated by their thinking about the first applicant\u2019s departure, which according to the High Court was ordinary for vulnerable children. To the High Court it appeared that the children\u2019s development had been positive. However, the High Court stated that this could be due to their age and development and it was therefore uncertain whether this could shed light on what had been the situation when the expulsion had first been decided. The youngest child had been described as very closely attached to the first applicant.","39.On the basis of the evidence given by the expert psychologist viewed in conjunction with the children\u2019s ages and care situation, the High Court concluded that it was most likely that they would be strongly emotionally marked by an expulsion of the first applicant with a ban on re-entry for two years. That would particularly apply to the three youngest children, of whom two had been described as somewhat vulnerable. The children would also be affected in more practical matters, as they would during the two years only have one care person who would take care of cooking, dressing, helping with homework, transporting them to and from leisure activities and putting them to bed.","40.Furthermore, the High Court considered it likely that were the first applicant expelled, the children would be marked by the separation from their principal care person in a manner that would lead them to require more care than normal. For that reason the High Court deemed that in the event of the first applicant\u2019s expulsion, the second applicant would be the sole carer for four children who had more extensive care needs than normal. The situation could therefore not be fully compared to that of other single parents.","41.The High Court deemed that the second applicant had ordinary good care skills. It was however likely that his caring skills would be reduced as a consequence of the first applicant\u2019s expulsion. In addition to the strain an expulsion would entail on him personally, he would be the sole carer for four children, for whom the task of caring would be particularly challenging following their separation from their closest care person. Information had not been given to the High Court about relatives or others who could relieve the second applicant of his caring responsibilities in a manner that could impact the proportionality assessment. The second applicant had a management position that required long working days. The High Court deemed that it would be possible for him to get another position with reduced working hours. This would however impact on his income and accordingly the family\u2019s financial situation. Though this was not in itself decisive, it was a relevant factor in the overall assessment of the care situation. The High Court was of the view that there was a risk that the second applicant would be unable to handle the problems that an expulsion of the first applicant would entail for the children and the care for them in a sufficiently good manner, to the effect that the hardship imposed on the children by the expulsion would be extraordinarily heavy.","42.In the High Court\u2019s assessment, the circumstances of the case were special because the expulsion would lead to a long lasting separation of the primary care person from four children, of whom two were somewhat vulnerable and one only a few years old, with the consequences that would in turn have for the other parent\u2019s ability to provide them with care.","43.The Government appealed against the Borgarting High Court\u2019s application of the law. The Government submitted that the High Court had erred when considering against which legal standard the proportionality assessment was to be carried out and had misunderstood the Court\u2019s judgments relating to \u201cexceptional circumstances\u201d (see paragraph 35 above). The Supreme Court (H\u00f8yesterett) granted leave to appeal and delivered a judgment on 9 December 2019.","44.In its judgment, starting with the legal framework and the scope of the review it was to carry out, the Supreme Court first set out that the expulsion decision had been adopted in accordance with section 66 of the Immigration Act (see paragraph 75 below). Under that provision, a foreign national without a residence permit could be expelled, inter alia, if the foreign national \u201cprovided materially incorrect or manifestly misleading information\u201d, and there was no doubt, nor was it disputed between the parties, that this applied to the first applicant\u2019s case. The question was whether the expulsion was disproportionate in relation to the four children. It had not been invoked that the decision was disproportionate in relation to the first or second applicants. By reference to Jeunesse v. the Netherlands ([GC], no. 12738\/10, 3October 2014) the Supreme Court noted that a \u201cfair balance\u201d had to be struck between \u201cthe competing interests of the individual and of the community as a whole\u201d.","45.Proceeding to the main elements of the proportionality assessment, the Supreme Court set out that the interests to be considered would to some extent vary according to the specific circumstances in each case. Some key factors were often recurring in this type of case, however, and the Supreme Court went on to describe those factors in more detail.","46.Firstly, the Supreme Court emphasised the interests of the community: the seriousness of the offence and expulsion as a sanction. It stated that the proportionality assessment had to use the basis for the expulsion as its point of departure; reference was made to section 66 of the Immigration Act (see paragraph 75 below). The more serious the offence, the more weight should be given to this factor in the overall assessment.","47.The Supreme Court pointed out that in the preparatory works to the Immigration Act, it had been particularly important that the immigration administration was based on trust, and that a sanction in the form of expulsion was necessary in order to uphold respect for the regulations and deter from future contraventions \u2013 general deterrence. In the Supreme Court\u2019s assessment, this Court had concurred in the opinion that expulsion could be an important measure against contraventions of the immigration legislation. Reference was made to Antwi and Others v. Norway, no. 26940\/10, \u00a790, 14February 2012.","48.The Supreme Court restated that, according to section 70 of the Immigration Act (see paragraph 75 below), the seriousness of the offence had to be weighed against the foreign national\u2019s connection with the realm. The balancing exercise had to take account of, inter alia, the child\u2019s best interests and the right to respect for family life under Article 8 of the Convention.","49.Thereafter, the Supreme Court discussed \u201cthe child\u2019s best interests\u201d in more detail. It stated in that context that, in cases that raised the question of whether expulsion would be a disproportionate measure in relation to the foreign national\u2019s children, the best interests of the child were of key importance. Reference was made to Article 3 of the United Nations Convention on the Rights of the Child (see paragraph 78 below) and the corresponding provisions in Article 104 of the Norwegian Constitution and the second sentence of the first paragraph of section 70 of the Immigration Act (see paragraph 75 below).","50.As to Article 8 of the Convention, the important question was whether the authorities, following an overall assessment, had struck a \u201cfair balance\u201d between the interests of the community as a whole and the interests of the individuals involved (citing Nunez, cited above, \u00a7 68, and Jeunesse, cited above, \u00a7 106).Moreover, the Supreme Court set out that the Court had highlighted some factors that had to be taken into account in cases that raised questions relating to both immigration control and the right to respect for family life. Reference was made to Jeunesse, cited above, \u00a7 107, where the Supreme Court noted that, at that location, the Court had stressed that the State\u2019s obligation to allow a person to stay in the country would vary \u201caccording to the particular circumstances of the persons involved and the general interest\u201d. The Court had gone on to state:","\u201cFactors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion [...]\u201d","51.The Supreme Court stated that it would go on to consider one particular factor that, according to both the Supreme Court\u2019s and the Court\u2019s case-law, had a bearing on the protection afforded to the respect for family life: whether the basis for residing in the country of residence was precarious, for example because the foreign national did not have lawful residence or held a residence permit based on having provided incorrect information.","52.Thereafter, under the heading \u201cECHR case-law relating to precarious basis for residence \u2013 the requirement for \u2018exceptional circumstances\u2019\u201d, the Supreme Court stated that the Court\u2019s case-law in this area had to be seen in the light of the fact that the Convention conferred neither entry rights nor residence rights in the Contracting States. The Court had stressed in a number of judgments that the States were entitled to control and regulate foreign nationals\u2019 entry into and residence in the country. Reference was made to Jeunesse, cited above, \u00a7 100. It had been explained in an earlier judgment from the Supreme Court that the foreign national could have developed such strong bonds and ties in the country of residence as to give cause for protection under Article 8 of the Convention. Such protection was according to the Supreme Court primarily applicable to \u201csettled migrants\u201d.","53.The Supreme Court considered that, in accordance with the above, protection under Article 8 of the Convention would be weakened if the basis for residence was precarious, for example because the foreign national had obtained his residence permit through providing incorrect information. Reference was made to Jeunesse, cited above, \u00a7 108.","54.The most important factor in this context was that, if the grounds for residence were precarious at the outset, expulsion would usually only be in contravention of Article 8 of the Convention where \u201cexceptional circumstances\u201d came into play. It noted that the Court had also used similar wordings in several of its judgments against Norway, for example in Nunez, cited above, \u00a7 70. The Supreme Court then continued with an analysis of relevant case-law of the Court in cases against Norway, notably Darren Omoregie and Others v. Norway (no. 265\/07, 31 July 2008), Antwi and Others, cited above, Butt v. Norway (no. 47017\/09, 4 December 2012) and Kaplan and Others (no. 32504\/11, 24 July 2014). Based on this analysis, it could not see that it was a requirement for using the criterion \u201cexceptional circumstances\u201d that all those involved were aware that one of them had a precarious basis for residence. According to the circumstances, however, it could be a factor to take into account in the overall assessment, if one party, at the time when the family relationship was established, was unaware that the right of the other to reside in the country was precarious. The Supreme Court added to this that the question of whether small children were aware of the basis for their parents\u2019 residence hardly had any bearing on the proportionality assessment.","55.The Supreme Court then turned to discussing \u201cpossible sanctions other than expulsion\u201d and stated that the applicants had argued that the intervention had not been necessary within the meaning of the second paragraph of Article 8 of the Convention because other sanctions were available and could have been used.","56.In response, the Supreme Court first pointed out that according to the first paragraph of section 14-1 of the Immigration Regulation (see paragraph 77 below), expulsion should not be used in cases of less serious contraventions as were specified therein, if the foreign national had children in Norway.","57.Moreover, as a point of departure, the Supreme Court stated that expulsion constituted an obstacle to subsequently re-entering Norway; that followed from the second paragraph of section 71 of the Immigration Act (see paragraph 75 below). But the prohibition on re-entry could be limited in accordance with the rules set out in section 14-2 of the Immigration Regulation (see paragraph 77 below). In the present case, the immigration authorities had chosen a duration of only two years. The Supreme Court also noted that, on application, the ban on entry could be cancelled in accordance with the second paragraph of section 71 of the Immigration Act, if warranted by a change of circumstances. A foreign national who had been expelled could, in some cases, also gain access to the territory for brief visits. Hence there was some room for differentiation of sanctions, even in cases of expulsion. In response to the applicants\u2019 argument that the first applicant should have been sanctioned with a prison sentence instead of an expulsion, the Supreme Court found it doubtful that a significant custodial sentence \u2013 which would presumably be what was relevant in the case\u2013 would be more considerate in relation to the children. The Supreme Court also pointed out that it was the legislature\u2019s task to consider, within the framework that followed from Norway\u2019s international obligations, what sanctions should be used in the case of serious contraventions of the Immigration Act where the best interests of the child indicated that one of the parents should not be removed from the country. It was noted that Parliament had made a request that the Government consider amendment of the Immigration Act to make it possible for the immigration administration to supplement the use of expulsion and prohibition on entry with a broader set of sanctions where warranted by special circumstances such as the child\u2019s best interests.","58.In a summary of the legal points of departure for the proportionality assessment, the Supreme Court stated that a broad balancing of all relevant considerations had to be carried out. There was no basis for defining absolute thresholds or norms for proportionality assessments.","59.Firstly, in the case of contraventions of the Immigration Act that had to be deemed to be very serious, community interests would carry significant weight in the proportionality assessment.Furthermore, if an expulsion decision had consequences for children, a thorough, concrete and individual assessment of the child\u2019s interests had to be carried out in each case. The child\u2019s best interests had to be fundamental and weigh heavily, but such interests alone were not necessarily decisive. A point of departure for that assessment was that, where the basis for residence lapsed as a consequence of serious contraventions of the Immigration Act, expulsion would generally only be disproportionate in relation to the children if it imposed an unusually great or extraordinary burden on them. An interference with family life that did not extend beyond what had to be assumed to be a general consequence of the expulsion decision, whether financial, social or emotional, was not as such sufficient to deem the interference to be disproportionate. Both the aforementioned preparatory works and the Supreme Court and the Court\u2019s case-law reviewed above provided further guidance on what factors should be taken into consideration and on the weight that should be given to certain, more typical, circumstances.","60.Turning to the concrete assessment of the case before it, and starting with the first applicant\u2019s contravention of the Immigration Act, the Supreme Court stated that the first applicant had repeatedly and over a long period provided incorrect information about her identity, country of origin and need for protection as a refugee. She had deliberately tried to exploit the asylum system to settle in Norway and had presented false documents. Her residence permits and Norwegian citizenship had been granted on false premises. The Supreme Court stated in that context that residency on grounds of marriage had obviously also to be based on correct information. The first applicant\u2019s contraventions fell according to the Supreme Court within the range of key control concerns that the Immigration Act was intended to address and there could be no doubt that the first applicant\u2019s contraventions were very serious.","61.On the topic of connection with Norway and the degree to which the family was disrupted, the Supreme Court stated that when the first applicant had established a family life in Norway, the basis for her residence had been very precarious. She had submitted incorrect information, provided a false identity and her asylum application had been rejected. The first applicant appealed this decision. When she had been granted a residence permit after having married a Norwegian citizen in spring 2004, it had still been based on the incorrect information. The same had been true when she was granted Norwegian citizenship in 2007. That meant that, during her entire stay up until the expulsion decision, the immigration authorities\u2019 information about the first applicant had been incorrect, based on an incorrect country of origin and false identity. Her connection with Norway was thus formed on the basis of incorrect information.","62.In such a situation, the first applicant could in the Supreme Court\u2019s assessment clearly not legitimately expect to be able to stay in Norway and establish a protected family life there. The Supreme Court thus considered that it was faced with a \u201cfait accompli\u201d of the kind that this Court had referred to in several judgments as not being a basis for protection of family life under Article 8 of the Convention. It followed from the above that the Supreme Court did not attach much weight to the fact that the second applicant had only become aware of the incorrect information some time after having entered into the marriage. The key point was that the first applicant had established a family life in the country while applying for protection as an asylum seeker on a false basis and providing a false identity.","63.The High Court had found that there was a \u201cpossibility of\u201d the rest of the family accompanying the first applicant to Djibouti and continuing their family life there. But it had seen this possibility as \u201cunrealistic\u201d out of consideration for the children\u2019s schooling and that they did not speak the local languages. From the other grounds for the High Court judgment, the Supreme Court understood that this probably also had to do with cultural differences, financial matters and the husband\u2019s work situation. According to the Court\u2019s case-law, one important factor was whether there was any \u201cinsurmountable obstacle\u201d to continuing family life in the foreign national\u2019s country of origin. Even if the family\u2019s choice was understandable, the Supreme Court did not consider that there was an unsurmountable obstacle.","64.Under the heading \u201cthe child\u2019s best interests\u201d, the Supreme Court first stated that, given the seriousness of the first applicant\u2019s contraventions of the Immigration Act and the precarious basis for her residence, in balancing the child\u2019s best interests against conflicting interests, the point of departure had to be whether the expulsion of the first applicant would impose an \u201cunusually great burden\u201d on them and whether \u201cexceptional circumstances\u201d existed.","65.In that context, the Supreme Court noted that when the expulsion decision was made in 2016, the oldest child had been 11 years old, and he was at the time of the Supreme Court\u2019s judgment 14 years old. The twins had been six years old and were at the time ten years old. The youngest child had been around three years old at the time of the expulsion decision and had by the time of the Supreme Court\u2019s proceedings turned six.","66.The Supreme Court went on to state that, according to the High Court\u2019s judgment, the children had developed normally and were generally well-functioning. They had not suffered separation from either parent or been exposed to other particularly burdensome circumstances. The High Court had concluded, however, that the twins were \u201csomewhat vulnerable\u201d, in slightly different ways. But their development seemed to be positive and the Supreme Court understood the High Court to mean that their vulnerability was at least partly due to the uncertainty and uneasiness experienced as a natural consequence of the expulsion case. Furthermore, the High Court had found that the three youngest children would be \u201cstrongly affected emotionally\u201d if the first applicant were to be expelled. But no information had been provided on whether they would be more affected than could be expected in such a situation.","67.The High Court had found the children to have stronger ties to their mother, the first applicant, than to their father, the second applicant. The first applicant had largely been responsible for the daily care of the children, which appeared to be linked to the second applicant working a lot and coming home late from work. The children had lived with both parents all their lives.","68.According to the evidence that had been provided, the second applicant was a stable caregiver to whom the children were attached, though not as strongly as to their mother. The children lived in an established and secure neighbourhood, and the siblings would continue to live together. The second applicant would have a considerable job in caring for the children during the two years the entry ban applied. It would also possibly affect the family\u2019s financial situation. None of the above could in the Supreme Court\u2019s view be characterised as unusual or extraordinary, however.","69.In the Supreme Court\u2019s opinion, there were in the case before it no extraordinary circumstances of the kind that had been present in cases where the Court had concluded that Article 8 of the Convention had been violated. The Supreme Court referred briefly to the fact that the children in the present case had not been exposed to the same degree of \u201cdisruption and stress\u201d as in the case of Nunez, cited above, and to the fact that the immigration authorities\u2019 case processing time was not censurable in the present case. Nor could this case be compared with the circumstances in the case of Butt, cited above. In Kaplan and Others, cited above, the circumstances had also been different from the present case.","70.The Supreme Court also emphasised that the ban on entry was limited to two years. It was clear that this limit had been set out of consideration for the children. Even if it did not carry much weight, the Supreme Court pointed to the possibility of the family having contact during the two-year period \u2013 during holidays, in Djibouti or in other places outside the Schengen Area, and to the possibility of communication by telephone and social media throughout that period.","71.The High Court had concluded that there was a \u201crisk\u201d that the second applicant would be unable to handle the problems that an expulsion would entail for the children \u201cin a sufficiently adequate manner\u201d, and that the burden on the children would therefore be unusually heavy. According to the evidence presented in the High Court and City Court judgments, the Supreme Court found it difficult to see any factors that stood out in any way from what had generally to be assumed to follow from expulsion of one of the parents for a relatively short period. The Supreme Court pointed out that, should a very negative development occur in the circumstances surrounding one or more of the children, there was a possibility of revoking the ban on entry in accordance with the second paragraph of section 71 of the Immigration Act (see paragraph 75 below).","72.Based on the above, the Supreme Court could not see that the children in the case before it would suffer any unusually great burden, or that there were extraordinary circumstances warranting that the expulsion of the first applicant for two years be considered a disproportionate intervention in relation to the children.","73. Following an overall assessment of the factors that in the Supreme Court\u2019s view were relevant, of which the child\u2019s best interests were fundamental, it concluded that the expulsion decision was valid."],"281":["2.The applicant was born in 1992 and is detained in Tbilisi. He was represented by Mr G. Nikolaishvili, a lawyer practising in Tbilisi.","3.The Government were represented by their Agent, MrB.Dzamashvili, of the Ministry of Justice.","4.The facts of the case, as submitted by the parties, may be summarised as follows.","5.On 17 October 2011 at around 3 p.m. Z.T. was shot dead in the city centre of Tbilisi. According to the video recordings extracted from surveillance cameras on several shops in the immediate vicinity of the crime scene, at least three individuals were involved in the shooting. On the same date, the first suspect was identified (see paragraph 11 below) and a search in his apartment was conducted.","6.The following day, the police went to the applicant\u2019s apartment, where, following a search, three bullets were found. At around 8p.m. the applicant was taken to a police station, where he was questioned as a witness. According to the record of his questioning by the police, the questioning began at 9.20 p.m. and ended at 1.10 a.m. Having been informed of his procedural rights, the applicant added a note to the record to the effect that he did not require the assistance of a lawyer. The applicant confessed to the murder and named his two alleged accomplices.","7.The applicant was formally arrested on 19 October 2011 at 1.35 a.m. in respect of the charges of murder and unlawful purchase and possession of firearms \u2013 offences under Articles 108 and Article 236 \u00a7\u00a7 1and 2 of the Criminal Code of Georgia. According to the record of his arrest and personal search, duly signed by him, the applicant noted that he did not require the assistance of a lawyer at that stage of the proceedings.","8.In the meantime, according to the applicant, his family contacted a lawyer, T.M., and asked him to represent his interests. At about 9 p.m. on 18October 2011 T.M. went to the relevant police station but was not allowed to see the applicant. He talked several times over the telephone with the investigator in charge of the case, but the latter maintained that the applicant had not requested the assistance of a lawyer.","9.Early in the morning on 19 October 2011 the applicant was taken to the crime scene, where an investigative re-enactment, a reconstruction of the events was conducted, and a video recording was made of him confessing to the crime in question. According to the record of the reconstruction, it was conducted with the consent of the applicant. The latter provided a detailed account of the events that had taken place on 17 October 2011, naming his accomplices and explaining the different roles that each of them had played. By that time the applicant had been provided with a lawyer, Kh.V., who had been invited by an investigator. The record of the reconstruction was duly signed by the applicant and the above lawyer.","10.On 20 October 2011 the applicant was formally charged with aggravated murder and the unlawful purchase and possession of firearms. While being questioned as an accused \u2013 this time in the presence of a lawyer of his own choosing, T.M. \u2013 the applicant protested his innocence and cited his right to remain silent. On 21 October 2011 the Tbilisi City Court remanded him in custody.","11.On 25 October 2011 the applicant\u2019s two accomplices, I.G. and I.A., were formally charged with various offences in respect of the murder of Z.T. It was established during the investigation that the murder of Z.T. had been set up by I.G. in retaliation for the death of his son. Both had fled Georgia.","12.On 26 December 2011 the applicant complained to the Georgian Bar Association (\u201cthe GBA\u201d) about the conduct of Kh.V., the lawyer appointed by the investigator. On 26 January 2012 the ethics commission of the GBA initiated disciplinary proceedings, in the course of which it was established that Kh.V. had participated in the investigative re-enactment without either the applicant\u2019s or his family\u2019s consent; she had not familiarised herself with the criminal case file materials, and she had not discussed with the applicant a potential defence strategy. On 25 May 2012 the ethics commission issued a decision concluding that in view of her \u201cformal\u201d participation in the re-enactment in the absence of the applicant\u2019s consent, Kh.V. had failed to perform her duties in a professional manner and in the interests of the applicant. It found a breach of Article 8 \u00a7 5 of the Code of Professional Ethics of Lawyers (\u201ca lawyer shall advise and represent his\/her client competently and conscientiously\u201d) and imposed a disciplinary measure suspending her licence for eighteen months.","13.On 4 May 2012 the pre-trial investigation was concluded. The criminal case file was forwarded to the Tbilisi City Court. At the same time, pursuant to Article 83 \u00a7 6 of the Code of Criminal Procedure of Georgia (hereinafter \u201cthe CCP\u201d), the parties exchanged information about the evidence that they were planning to produce in court. The relevant records regarding the exchange of information were duly signed by the prosecutor in charge of the applicant\u2019s case, and by the applicant\u2019s two lawyers of his own choosing. On the same date the applicant\u2019s two lawyers provided the trial court with information about potential evidence that they were planning to produce in court.","14.After several postponements, on 12 May 2012 a pre-trial conference was opened with the participation of the parties. The applicant, who was represented by four lawyers, protested his innocence. His lawyers requested that the prosecution evidence be declared inadmissible. They argued, inter alia, that during the initial hours of his detention the applicant had been prevented from seeing a lawyer of his own choosing, and that a lawyer, Kh.V., who had accompanied the applicant during the crime reconstruction, had not been a so-called legal-aid lawyer. Nor had she been appointed with the applicant\u2019s consent. Accordingly, her participation in the crime reconstruction had been unlawful. Having heard the parties, the judge concluded, as far the crime reconstruction was concerned, that she was not ready to rule on the admissibility or otherwise of the relevant piece of evidence, as a number of witnesses who could have shed light on the disputed circumstances of the crime reconstruction \u2013 and notably the participation of Kh.V. therein \u2013 were to be examined during the trial. As for the remaining prosecution evidence, the judge ruled it admissible, except for one record of the identification parade in which the applicant had participated. The judge noted in this connection that the defence\u2019s request for the prosecution evidence to be dismissed in its entirety, without submitting any concrete legal and\/or factual grounds for that request with respect to any particular pieces of evidence, was wholly unsubstantiated. The prosecution evidence that was accordingly admitted for examination at the trial included: thirty-nine written statements by various witnesses, two victims and the applicant; a list of seventy-eight witnesses to be examined during the trial; twenty-seven expert and forensic reports; surveillance camera footage from private establishments located in the area of the crime scene; and dozens of procedural documents concerning various investigative measures. The applicant\u2019s initial self\u2011incriminating statement (see paragraph 6 above) was not part of the prosecution evidence.","15.When deciding on the issue of the admissibility of the defence evidence, the judge, acting on a request by the prosecution, decided to reject as inadmissible the list of 25 defence witnesses to be summoned for the trial. While the applicant\u2019s defence lawyers argued that this list of the defence witnesses had been annexed to the information exchanged with the prosecution on 4 May 2012, the judge found that the annex had not been duly signed by both parties, and that the defence witnesses had moreover not been listed in the record of the exchange of information itself. She concluded in this respect, despite the defence arguing to the contrary, that the list of the defence witnesses had not been exchanged with the prosecution in accordance with the procedure provided in Article 83 \u00a7 6 of the CCP and decided to reject the list as inadmissible. She nonetheless noted in respect of three of the \u201crejected\u201d witnesses that they had been accepted for examination as prosecution witnesses; accordingly, the defence could put questions to them during their cross-examination. She, therefore, admitted their written statements as evidence.","16.The judge furthermore dismissed as inadmissible two expert reports according to which none of the suspected perpetrators of the murder captured on the video recordings could be identified as the applicant. The judge concluded that in the absence of the experts themselves (who were on the list of the witnesses not admitted for questioning in court), those reports had no evidentiary value. The judge also noted that the reports had been drawn up in violation of the procedure provided for in the CCP and were thus unreliable.","17.The applicant\u2019s lawyers objected. They maintained that the list of defence witnesses had been included in the defence file, which had been exchanged with the prosecution. In this regard, they requested that the investigator and the prosecutor in charge be questioned. Their request was dismissed.","18.At the pre-trial conference the applicant was advised, in accordance with Articles 219 and 226 of the CCP, that in view of the nature of the charges brought against him, he had a right to a jury trial (see further paragraph 30 below). The judge informed him in detail of the relevant procedure, including the fact that under Article 266 \u00a7 2 of the CCP, a person found guilty of a crime by a jury had the right to a one-time appeal on points of law against that guilty verdict. The applicant consented to having his case heard by a jury; so too did the prosecutor.","19.The jury trial started on 4 June 2012 and continued until 14 June 2012.The trial opened with the presiding judge reading out the charges against the applicant and the legal basis thereof. Then he addressed the jury, providing them with a short description of the relevant factual circumstances (as narrated by the prosecution), followed by instructions concerning, inter alia, the elements of the offences in question and the rules regarding assessment of evidence. The jurors were then individually given a copy of the five-page written instructions. During the trial the defence requested, on the basis of Article 239 of the CCP, the examination of I.G. via video link. They stated that he was in detention in Kyiv, Ukraine, and that he was ready to testify that the applicant had not been involved in the murder of Z.T. On 5June 2012 the presiding judge dismissed the application, concluding that the defence had failed to justify the delay in lodging it. According to the presiding judge, the defence had known about the detention of I.G. long before the opening of the trial and could have therefore requested that he be examined even at the pre-trial stage of the proceedings.","20.Another request lodged by the defence that was refused by the presiding judge concerned the conclusion of one of the experts regarding the video recordings made at the crime scene. Specifically, the relevant expert had requested the court under Article 55 of the CCP to admit his report as an amicus curiae. The presiding judge, however, concluded that the purpose of this report had not been the provision of objective information, but rather to provide support to the defence\u2019s arguments, he therefore rejected it. The presiding judge also decided, on the basis of Article 247 of the CCP, not to disclose to the jury the record of the investigative re\u2011enactment. He noted that in the absence of the defendant\u2019s consent, he could not disclose a piece of evidence containing his self-incriminatory statement. As to the reiterated allegations by the applicant\u2019s lawyers concerning the breach of his right of access to a lawyer of his own choosing, the presiding judge did not examine them. A related argument advanced by the defence \u2013 that the prosecution evidence had to be declared inadmissible (on the basis of Article 72 of the CCP) as unlawfully obtained evidence \u2013 was equally left unanswered by the presiding judge.","21.During the trial the jury heard nineteen prosecution witnesses, among them three eyewitnesses to the incident, viewed surveillance camera footage from private establishments located in the area of the crime scene, and media reports concerning the applicant\u2019s arrest and the investigative re-enactment. The jurors were also presented with multiple expert and forensic reports and dozens of procedural documents concerning various investigative measures.","22.After the final submissions of the prosecution and the defence had been heard, the jury was called to answer the following \u201cyes or no\u201d questions put to it by the presiding judge:","Did the applicant commit the crime in question or not?","-the unlawful purchase and possession of ammunition (namely, \u201cGECO\u201d bullets that were seized during the search of the defendant\u2019s apartment on 18October 2011, a crime under Article 236 \u00a7 1 of the Criminal Code of Georgia);","-the unlawful purchase and possession of a firearm and ammunition (namely, the purchasing and possessing a firearm, together with matching cartridges, on the day of the murder, 17 October 2011, a crime under Article236 \u00a7 1 of the Criminal Code of Georgia);","-the unlawful carrying of a firearm and ammunition (namely, the carrying of the firearm, together with matching cartridges, on the day of the murder, 17October 2011a crime under Article 236 \u00a7 2 of the Criminal Code of Georgia), and;","-Did the defendant commit or not commit intentional murder under the following aggravating circumstances?","(1)In a manner deliberately posing a threat to the life or health of others (a crime under Article 109 \u00a7 1 (g) of the Criminal Code of Georgia);","(2)In a group (a crime under Article 109 \u00a7 2 (e) of the Criminal Code of Georgia).","23.By a verdict of 14 June 2012, the jurors, by a majority of nine to three, found the applicant guilty of aggravated murder (an offence under Article 109 \u00a7\u00a7 1 (g) and 2 (e) of the Criminal Code of Georgia) and of the unlawful carrying of a firearm (an offence under Article 236 \u00a7 2 of the Criminal Code of Georgia). The applicant was found not guilty on two charges: (1) the unlawful purchase and possession of firearms in respect of the three bullets found in his apartment and (2) the unlawful purchase and possession of firearms in respect of the gun found at the crime scene.","24.On 15 June 2012 the jurors, after deliberating in private, decided \u2013 by nine votes to three \u2013 to submit a recommendation that a harsher sentence be imposed on the applicant. On the same date the judge delivered a judgment and acting on the jurors\u2019 recommendation, sentenced the applicant to eighteen years and two days\u2019 imprisonment. The final sentence, which included the unserved part of the applicant\u2019s previous conditional sentence that he had received in respect of an earlier conviction, was set at twenty-one years. The judge noted as far as the conviction was concerned that the decision concerning the facts had been taken by the jury on the basis of the evidence examined in their presence with the participation of the parties.","25.On 9 July 2012 the applicant lodged an appeal on points of law under Article 266 \u00a7\u00a7 2 (a), (b), and (f) of the CCP, complaining, among others, that the decisions of the judge concerning the admissibility of evidence had been unlawful. In particular, he argued that his request for the examination of I.G. on the basis of Article 239 of the CCP had been dismissed unlawfully; and that the expert evidence produced on behalf of the defence had been dismissed in violation of the principles of equality of arms and adversarial procedure. In connection with I.G., the applicant stressed that the former had been on the list of defence witnesses which the pre-trial conference judge had unlawfully refused to include in the evidence. Also, the prosecution had been planning to seek his extradition for months. Hence the delay in the request of the defence for his examination via video link. The applicant also reiterated his complaint about the lack of access to a lawyer of his own choosing during the initial hours of his detention and the unlawful appointment of Kh.V. and her presence during the investigative re-enactment.","26.By a decision of 31 August 2012, the Tbilisi Court of Appeal rejected his appeal on points of law as inadmissible. The court concluded, referring to Article 266 \u00a7 2 and Article 303 \u00a7\u00a7 2 and 4 of the CCP:","\u201cThe appellate court considers that in the criminal case at hand none of the grounds [provided in Article 266 \u00a7 2] are present.","... the appellant failed to prove that the Tbilisi City Court had examined the case [in a manner that constituted] serious legal or procedural violations; this could not be established through an examination of the case 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